Michael Perger v. Aviva General Insurance Company, 2025 CanLII 62740

Perger v. Aviva General Insurance Company

Citation: Perger v. Aviva General Insurance Company, 2025 ONLAT 24-001863/AABS

Licence Appeal Tribunal File Number: 24-001863/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:

Michael Perger

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Michael Perger, Applicant Brendan Sullivan, Counsel

For the Respondent: Tammy Smith, Adjuster Kevin Griffiths, Counsel

Court Reporters: Maureen Biscak, January 13-14, 2025 Bonnie van der Meer, January 15-16, 2025

Heard by Videoconference: January 13-16, 2025

OVERVIEW

1Michael Perger, the applicant, was involved in an automobile accident on June 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, Aviva General Insurance Company, 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 s. 3.1(1)8 ("Criterion 8") in the Schedule?

ii. Is the applicant entitled to $4,020.45 for chiropractic services, proposed by Mizel Health Services in a treatment plan/OCF-18 ("plan") submitted March 21, 2022, and denied March 29, 2022?

iii. Is the applicant entitled to $897.73 for occupational therapy services, proposed by Entwistle Power in an invoice/OCF-21 submitted February 23, 2022, and denied March 29, 2022?

iv. Is the applicant entitled to $365.74 for occupational therapy services, proposed by Entwistle Power in an invoice/OCF-21 submitted March 31, 2022, and denied April 20, 2022?

v. Is the applicant entitled to $175.06 for occupational therapy services, proposed by Entwistle Power in an invoice/OCF-21 submitted March 20, 2022, and denied April 20, 2022?

vi. Is the applicant entitled to $3,192.20 for psychological services, proposed by Dalton Associates in a plan submitted April 12, 2022, and denied May 20, 2022?

vii. Is the applicant entitled to $637.72 for chiropractic services, proposed by Mizel Health Services in an invoice/OCF-21 submitted March 18, 2022, and denied March 29, 2022?

viii. Is the applicant entitled to $1,075.69 for chiropractic services, proposed by Mizel Health Services in an invoice/OCF-21 submitted March 4, 2022, and denied May 21, 2022?

ix. Is the applicant entitled to $1,075.81 for chiropractic services, proposed by Mizel Health Services in an invoice/OCF-21 submitted March 4, 2022, and denied March 29, 2022?

x. Is the applicant entitled to $1,523.06 for chiropractic services, proposed by Mizel Health Services in a plan submitted October 11, 2022, and denied October 25, 2022?

xi. Is the applicant entitled to $1,523.06 for chiropractic services, proposed by Mizel Health Services in a plan submitted June 8, 2023, and denied June 27, 2023?

xii. Is the applicant entitled to $1,523.06 for chiropractic services, proposed by Mizel Health Services in a plan submitted January 25, 2024, and denied January 26, 2024?

xiii. Is the applicant entitled to $1,457.70 for catastrophic determination testing, proposed by Leah Christie in a plan submitted April 28, 2022, and denied May 11, 2022?

xiv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant's impairments do not meet the threshold of catastrophic impairment as defined by the Schedule under Criterion 8.

4The applicant is not entitled to the remaining benefits in dispute.

5The respondent is liable to pay an award for unreasonably withheld or delayed payments to the applicant, specifically $630.57 and $373.44 from their respective invoice dates to April 2, 2024, as follows: 25 per cent x (amount unreasonably withheld or delayed benefits + interest on these benefits calculated under the Schedule + compound interest calculated as per s.10 of Regulation 664).

6The applicant is not entitled to interest under s. 51 of the Schedule beyond the amount applicable under the formula for an award.

PROCEDURAL ISSUES

Surveillance evidence

7The applicant shall not rely on the following evidence.

i. Surveillance report dated July 30, 2024. The applicant received this as disclosure in the course of legal proceedings outside of this Tribunal. In the context of the matter before me, the respondent confirmed receipt on December 4, 2024.

ii. Video surveillance footage from July 24, 25, and 27, 2024. This was also received by the applicant in proceedings outside of this Tribunal. The respondent confirmed receipt on December 18, 2024.

iii. Addendum report of Dr. Liu dated December 20, 2024 addressing surveillance evidence. The respondent confirmed receipt on December 28, 2024.

8The applicant states that the surveillance report was received by him on September 9, 2024, a week after the exchange and production deadline set for this hearing, and it is included in the evidence brief filed for this hearing. Similarly, the surveillance and addendum report came into the applicant's possession after the deadline. The applicant argues they should not be excluded because of being produced, served or filed late, arguing this is a technicality. Instead, the applicant argues that, if the items are admissible in court, then they are admissible at this Tribunal, referencing s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"). The applicant argues the respondent had sufficient time to review the items and prepare for this hearing, so I should focus on whether or not the items are relevant to the issues in this hearing. The applicant argues the evidence is relevant because of four main reasons: the footage shows the applicant is in pain, shows the applicant's son and daughter-in-law bringing groceries home, shows the applicant using his hands to move his leg, and shows the applicant wearing the same clothes on different days.

9The respondent objects to the filing of the items because they are late and do not comply with the Case Conference Report and Order ("CCRO") or the Licence Appeal Tribunal Rules, 2023 ("Rules"). Additionally, they were not provided at the first opportunity. In the CCRO, the applicant's deadline to provide the three items falls into the category of "all other documents and things not previously exchanged". The exchange deadline established in the CCRO was September 3, 2024, which was 60 calendar days after the case conference.

10The respondent also argues that the surveillance footage should be excluded because the applicant is unfairly cherry-picking footage he is producing. To establish this the respondent points me to the surveillance report mentioning surveillance footage from April and July of 2024, whereas the applicant has selectively only provided footage from July. The respondent also argues that the four main reasons provided by the applicant to establish that the surveillance is relevant is an attempt at oath-helping.

11I find that the applicant did not comply with the exchange and production deadline of September 3, 2024 in the CCRO when he provided the three items to the respondent on various dates noted previously in December 2024. Providing the items so close to the hearing, without seeking an extension in advance, challenges the Tribunal's goal of ensuring a fair, open, accessible process that allows effective participation. For perspective, even if the CCRO had not set this deadline, Rule 9.4.2 would have required all evidence be exchanged by November 29, 2024, 45 days before this hearing.

12I also find that the applicant has not provided a reason for why he provided the surveillance report to the respondent on December 4, 2024, when he had it in his possession on September 9, 2024. The surveillance report was provided to the respondent 92 calendar days after the CCRO deadline. The surveillance footage was provided 106 calendar days after the CCRO deadline. The addendum of Dr. Liu was provided 116 days after the CCRO deadline, and since it was a Saturday, it is deemed received on the next business day making the addendum 118 calendar days late.

13Rule 9.4.4 requires consideration of factors set out in Rule 9.3 because the applicant also did not comply with the 21-day deadline for filing and service of his evidence, specifically the surveillance footage and the addendum report. In this case, this deadline was December 23, 2024. Before determining if the items can be relied upon at this hearing, I must consider the parties' submissions and any relevant factors, including those listed in Rule 9.3. I note that once the applicant is in non-compliance with any orders or directions, relevance of the items to the issues in dispute is only one of the factors I may consider before coming to a determination of how to treat the evidence.

14The delay on the applicant's part is more than a technicality, because it is a matter of providing notice to the respondent. Having notice of the case to meet is fundamental to procedural fairness for all parties. I find that the amount of delay is prejudicial to the respondent, because I find that the applicant did not provide sufficient time for the respondent to receive, review and obtain medical opinions on the three items. The respondent notes that the CCRO provided the respondent 30 calendar days between September and October to deliver responsive evidence, and the respondent did not get that 30 day opportunity. The respondent states that the surveillance footage received on December 18, 2024 was only two days prior to offices closing for the Christmas holidays. In my view, the holidays are not relevant to my analysis because the deadlines in the CCRO remain the same regardless of the time of the year and the deadline was well before the Christmas holidays.

15I also find that the applicant was selective in his reliance on the surveillance evidence. In this case, the applicant produced some surveillance footage he intended to rely on at the hearing without producing all the surveillance referred to in the surveillance report. When surveillance is produced it is a fair principle that all of it should be produced so that it is not selectively disclosed.

16The respondent referred me to the rule against oath-helping discussed in R. v. Béland, 1987 CanLII 27 (SCC), in which the Supreme Court of Canada dealt with an accused relying on polygraph testing to show that he is telling the truth. I note that the rule against oath-helping is a rule of evidence, and they apply flexibly at this Tribunal in light of the SPPA and any binding case law. I find that polygraph testing evidence as dealt with by the court and the surveillance evidence before me do not belong in the same category. In my view, if surveillance evidence corroborates the limitations or impairments the applicant wishes to establish at this hearing, then it should not be seen as oath-helping, because it would not be solely for the purpose of bolstering witness testimony. Similar to medical evidence that may corroborate or establish the same functional limitations that may be mentioned in testimony. Accordingly, I find that the evidence is not solely for the purpose of oath-helping and seems on its face to be relevant to the issues in dispute.

17However, the surveillance report and footage would be repetitious at best and unduly repetitious at worst. The applicant and the applicant's daughter-in-law will be testifying at this hearing and will have an opportunity to establish what the surveillance purportedly shows:

i. the applicant is in pain,

ii. the applicant's son and daughter-in-law bring groceries home,

iii. the applicant was seen using his hands to move his leg, and

iv. the applicant was wearing the same clothes on different days.

18I find that any prejudice to the applicant from my determination that he may not rely on the late surveillance related evidence is mitigated sufficiently to allow a fair hearing on the merits. In my view, the applicant and other witnesses will have an opportunity to testify regarding the circumstances covered by the surveillance materials.

19Lastly, this raises the question whether the applicant was offending his implied undertaking of confidentiality, to the extent that he was seeking to rely on evidence produced for inspection in a collateral or separate matter not before this Tribunal. In this regard, s. 15.1 of the SPPA incorporates an underlying principle of the implied undertaking applicable to this Tribunal. Since the parties did not address this, I did not consider it to come to my decision.

20For the reasons above, the applicant was not permitted to rely on this evidence.

Challenges to Experts

21The applicant sought to challenge two experts, Dr. Janet Patterson, psychiatrist, and Ms. Tina Cagampan, an occupational therapist ("OT"), alleging a failure on their part to be fair, objective and non-partisan. The applicant argues that the evidence of Dr. Patterson was found to be concerning in another proceeding in a March 2022 decision, and so the respondent should not have hired Dr. Patterson a year later. The applicant alleges that Dr. Patterson's comments that injuries should have been resolved within a few weeks and what impact a lawsuit has on an applicant are outside the scope of her expertise as a psychiatrist. The applicant argues there should be a point at which an expert is barred from providing evidence at this Tribunal, and that Dr. Patterson has met that threshold.

22The respondent argues it would be an extreme measure to exclude Dr. Patterson's report and testimony because another adjudicator commented on impartiality in another decision. The respondent further argues it would be an unreasonable principle, because adjudicators regularly assess what weight to give to evidence, and experts should not be barred from providing evidence if a decision gives less weight to their evidence. The respondent argues the applicant should explore whether Dr. Patterson's evidence should be given less weight in this particular hearing based on the evidence at hand. In my view, this is the correct approach because applicant's counsel will have an opportunity to explore and establish his concerns in this hearing through cross-examination.

23The applicant also raises these issues in relation to Ms. Cagampan being called by the respondent. Applicant's counsel states he spoke with Ms. Cagampan three times and has assessed that her evidence is not fair, objective and non-partisan. For example, she opines that the applicant can successfully complete his activities of daily living if he paces himself. The applicant argues this is unfair and goes to more than weight.

24The respondent argues it is unreasonable to not allow Ms. Cagampan to testify because her evidence is allegedly not fair, objective or non-partisan. The applicant can raise these concerns and establish them during the hearing and make submissions. In my view, this is the correct approach because applicant's counsel will have an opportunity to explore and establish his concerns in this hearing through cross-examination.

25For the reasons above, the evidence of Dr. Patterson and Ms. Cagampan are not excluded and both witnesses may testify at this hearing. The applicant will have an opportunity to test the evidence through cross-examination. If there are any concerns, it is up to the applicant to argue what weight, if any, should be attached to the evidence of the experts.

Applicant's objection to Dr. Patterson's evidence

26During the hearing, the applicant requested I exclude Dr. Patterson's evidence, because a draft version of her report was produced for the first time at approximately 4:44PM the day before she was to testify. The applicant argued the draft report should have been produced by the respondent as part of the order to produce the complete files of all s. 44 doctors or assessors, as required by the CCRO.

27As a result of receiving the draft report, the applicant identified two main concerns between this draft and the final report. First, the draft report does not acknowledge reviewing the OT reports of Ms. Cagampan, whereas the final report does. The applicant argues it is contentious if Dr. Patterson reviewed Ms. Cagampan's reports. Second, the draft report contains one page of material that has been removed from the final draft. This deleted material is related to catastrophic impairment according to Criterion 7. I note that the applicant is solely proceeding under Criterion 8.

28The applicant alleges production of the draft report is an ambush, and that there is uncertainty whether the complete file has been produced. The applicant also argues that the Criterion 7 testing has not been provided, the applicant's expert did not get a chance to review the Criterion 7 materials, and it is unclear if Dr. Patterson relied on her Criterion 7 material to reach her conclusion on Criterion 8. The applicant's counsel also argued he does not know what the Brief Psychiatric Rating Scale ("BPRS"), Global Assessment of Functioning ("GAF"), and the Psychiatric Impairment Rating Scale ("PIRS"), the Criterion 7 testing mentioned in the deleted page of the report is.

29The respondent argues the production of this draft report is not an ambush, because it is not being relied upon for its case. The respondent submits that the draft report was provided to the applicant as soon as it was received by the respondent, it was not in its possession previously. Also, it is not relevant, because the draft report contained a page-long section on Criterion 7 that is not an issue at this hearing. The respondent confirmed there was no intention of relying on the Criterion 7 opinion in the draft report, and it was removed before the report was finalized because it was not relevant. The respondent also points out that the legal tests for each Criterion are different and rely on different methodology. Mental or behavioural impairments in Criterion 7 are determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th edition, 2008; whereas mental or behavioural disorders under Criterion 8 are assessed in accordance with the AMA Guides, 4th edition, 1993.

30I did not exclude Dr. Patterson's evidence, including her testimony or her final report. A draft report is simply a work-in-progress. The applicant did not establish that there was reason for concern between the draft and the final report. Regarding the page that was removed, it is clearly marked as dealing with Criterion 7, which is not an issue that is before me and is of questionable relevance. The applicant's counsel argues he is not an expert on the GAF, BPRS and PIRS, so we should defer to the experts as to their relevance to this hearing. Counsel's professed lack of familiarity does not automatically mean that a witness' evidence must be excluded. Also, this does not address that the tests between the criteria are different. Lastly, I also considered that it is only a single page worth of material and was quickly reviewed. In my view, this is the correct approach because applicant's counsel will have an opportunity to explore and establish his concerns in this hearing through cross-examination.

31For the reasons above, I found it would be excessive to exclude the report and the testimony entirely. Any prejudice to the applicant was remedied by giving the applicant additional time to prepare for cross-examination of Dr. Patterson. The applicant had an opportunity to explore the concerns raised in this objection directly with the witness. Ultimately, the applicant decided not to explore through cross-examination the concerns he had raised, but he made submissions on giving her evidence less weight on the basis of the production of the draft report. It is moot whether I give Dr. Patterson's evidence any weight because it does not assist the applicant in meeting his onus on Criterion 8.

Limits on Tribunal decisions

32I also note that the applicant argues that I am strictly limited in my decision and cannot substitute my reasoning in place of the medical opinions before me. The applicant argues I must choose between the conflicting evidence of the parties to decide if the applicant is catastrophically impaired as argued by the applicant, or that he has a Class 1 impairment in all four domains, as provided by the respondent's evidence.

33In my view, this restating of the test is unnecessary because the onus is on the applicant to establish that he meets the definition in the Schedule. For the reasons above, I am not limited, as the applicant argues, between the applicant's three Class 4 ratings and the respondent's Class 1 ratings. Rather, I must assess whether the applicant has met his onus. In doing so, the strength or weakness of the applicant's position is not established by the strength or weakness of the respondent's position. For these reasons, I disagree with the limits the applicant argues should be placed on my decision.

ANALYSIS

Has the applicant sustained a catastrophic impairment as defined by Criterion 8?

34The applicant's impairments do not meet the threshold of catastrophic impairment as defined by the Schedule under Criterion 8.

35Criterion 8 relies on the AMA Guides, 4th edition, 1993 ("AMA Guides"). The applicant must prove, on a balance of probabilities, that, as a result of the accident, he suffers from a marked ("Class 4") impairment in at least three of the four domains, or at least one extreme ("Class 5") impairment, due to a mental or behavioural disorder. The AMA Guides set out the four functional domains and the levels of impairment as illustrated in the chart below, with Class 1 or no impairment removed, for brevity.

Area or Aspect of Functioning

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living

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)

36The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30. I find that the applicant does not meet the test as set out in the Schedule.

37The applicant's position is that he has Class 4 impairments in three domains as assessed by his psychiatric catastrophic impairment assessor, Dr. Liu. These three domains are: activities of daily living, social functioning, and adaptation. Dr. Liu provides a Class 3 rating in the domain of concentration, persistence and pace. The respondent's evidence is that the applicant has no impairment under Criterion 8.

38As detailed below, I conclude that the applicant has not sustained a Class 4 impairment in the domain of activities of daily living. Since I have found that the applicant does not have a Class 4 impairment in this domain, he cannot meet the minimum three Class 4 ratings required for a finding of catastrophic impairment under Criterion 8.

Leah Christie's evidence and Rule 10.2

39During Ms. Christie's examination-in-chief, she began to answer questions discussing causation. In another instance, applicant's counsel asked a direct question regarding causation. Respondent's counsel objected to any opinion by Ms. Christie on causation because it was outside her scope of expertise and not covered in her report. Ms. Christie confirmed in her testimony that causation was outside the scope of her expertise. To the extent that her evidence provides an opinion on causation, I am not giving it any weight, because it is outside the scope of her expertise.

40The applicant attempted to obtain Ms. Christie's opinion on an occupational therapy assessment report by Ms. Cagampan from May 2023. Ms. Christie began to answer by stating that the report did not contain as much testing as she had completed in her own assessment. The respondent objected because she was testifying as an expert witness and this opinion was outside the four corners of her report from July 2022. Applicant's counsel argued the witness need not be limited to the four corners of her report and questioned my authority to limit the witness suggesting it was not in the Tribunal's Rules.

41The respondent referred to Lockyear v. Wawanesa Mutual Insurance Company, 2022 ONSC 94 to establish the basis for the objection. I note that the Divisional Court heard this matter on December 16, 2021 and referred to a prior version of Rule 10.2. However, a review of paragraph 13 of the decision confirms the Divisional Court was engaging with the same language that is found in the current version of Rule 10.2. Applying the relevant principles and Rule 10.2 to the situation before me, I find that it would be procedurally unfair to allow Ms. Christie's fresh evidence through examination-in-chief. To be clear, Rule 10 and its requirements only apply to expert witnesses, in other words, experts providing viva voce evidence. Ms. Christie's evidence squarely falls into this category.

42Since it was clear that Ms. Christie's report did not include any opinion or critique regarding reports that came out approximately 11 months after her own report, the applicant could not establish that she was simply amplifying or expanding on her opinions found in her report. I accepted the respondent's objection, because the witness was opening a new area outside the four corners of her report.

43For the above reasons, Ms. Christie's opinions on causation are afforded no weight. Also, Ms. Christie's examination-in-chief was limited to the four corners of her report.

Activities of daily living

44On a balance of probabilities, the applicant does not meet the definition of a Class 4 impairment in the domain of activities of daily living, as a result of the accident.

45For activities of daily living, the AMA Guides specify what needs to be considered:

Activities of daily living include such activities as 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 rather than to such factors as lack of money or lack of transportation. 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.

46While the applicant and respondent agree that the applicant has physical impairments, they differ on whether the applicant has a mental or behavioural disorder that significantly impedes useful functioning, as defined under Criterion 8. The applicant argues that his impairments should be viewed through the lens of common sense. On this basis, the applicant argues that it makes sense that psychological impairments resulted from physical impairments because these physical impairments are of such a high degree that they restrict him from working post-accident.

47The respondent argues the AMA Guides require that mental or behavioural impairments significantly impede the applicant's useful functioning and that physical causes must be eliminated. Dr. Liu's report suggests the same approach and recommends investigations to rule out medical causes for psychiatric symptoms.

48Dr. Liu considers the "effects of psychologically driven pain". Dr. Liu states that the 4th edition of the AMA Guides acknowledge:

...how difficult it is to separate psychological pain from physical causes, and as a result they suggest a multi-disciplinary approach. In some instances, common practice has supported taking a cumulative approach when separation is not possible.

Also, as per the fourth edition of the AMA Guides: "... neurological impairments ... may have psychiatric features as well which may range from irritability, outbursts of rage or panic and from aggression to withdrawal. These illnesses may include depression, manic states, emotional fluctuations, socially unacceptable behaviour and involuntary laughing or crying and other kinds of central nervous system responses." Efforts will be taken to avoid including brain injury effects in this analysis.

49Dr. Liu diagnosed the applicant with Major Depressive Disorder, Generalized Anxiety Disorder and Somatic Symptom Disorder. The applicant explained he is depressed because he cannot do the things that he used to do, a common theme in his medical records and his testimony as it relates to his activities of daily living. When discussing causation, Dr. Liu writes: "Since the subject collision, he experiences persistent preoccupation with physical symptoms which has led to depressive and anxiety symptoms. The combination of physical symptom preoccupation, as well as depressive and anxiety symptoms have compounded Mr. Perger's psychiatric impairments."

50I note that the applicant did not take the AMA Guides' suggested multi-disciplinary approach to separate psychological pain from physical causes. As it relates to references to overlapping features with neurological impairments as quoted by Dr. Liu, the applicant did not rely on a neurological assessment that could assist me on the topic.

51To assist the reader, Dr. Liu's report refers to the 6th edition of the AMA Guides, a version that is not relevant to Criterion 8, and there is half a page explaining chronic pain syndrome ("CPS"). Dr. Liu's report, when discussing chronic pain syndrome and somatic symptom disorder generally, explains that individuals with somatic symptom disorder ("SSD") "have essentially lapsed into a state whereby they appear to regard themselves as disabled, overwhelmed, and incapable of coping with their pain experiences."

52Dr. Liu opines [emphasis added]: "There is a link between [the applicant's] physical and emotional symptoms. This acts as evidence that psychological factors substantially contribute to the experience of physical symptoms which result in functional limitations that may not be necessarily clearly explained by physical assessments." In the context of Criterion 8, the applicant did not provide an assessment by a physical medicine clinician that could have assisted me by explaining which of his functional limitations are not clearly explained by physical impairments and to what extent. Additionally, I was not referred to a medical opinion stating it is impossible to separate psychological and physical causes in this specific case although the AMA Guides recognize generally that it can be difficult and may be impossible.

53After describing and diagnosing the applicant with SSD, Dr. Liu explains that this is a term used by mental health clinicians, while physical medicine clinicians use the term CPS. Of note is Dr. Liu's highlight of a progress report from February 2022 by the applicant's treating psychologists, Mehdi Lotfalizadeh and Elizabeth Stoakley, outlining: "His mood is improving, but improvement is limited by the severity and persistence of his chronic pain symptoms and associated inability to return to gainful employment." Dr. Liu further quotes their progress report which states the applicant met the criteria for SSD and outlined "mood has continued to fluctuate, with periods of low mood, discouragement, decreased self worth, guilt about being off work, anxiety about his pain, and fear of aggravating his injuries". For context, the applicant confirmed that his family doctor's opinion was that the applicant should not work because of lower back issues and the possibility of injuring himself further. This aspect is not meaningfully addressed by Dr. Liu's report. Dr. Liu's report notes the applicant describing his job as physically demanding, with the essential tasks including support and industrial equipment repairs to ships, boats, and other sites. Under the circumstances and on a balance of probabilities, the applicant's fear of aggravating his injuries and not returning to work predominantly comes from a medical opinion given to him regarding his physical impairment. This suggests there is an explanation from a physical medicine perspective and the applicant's evidence regarding catastrophic impairment does not separate the relevant physical and psychological factors to assist me.

54In my view, the applicant's testimony and treatment records are sufficiently clear that it is predominantly his physical impairments that limit his functional ability to engage in his activities of daily living. While the applicant did rely on an Occupational Therapy Catastrophic Assessment report by Leah Christie, it is outside the scope of occupational therapists to opine on causation. For this reason, Leah Christie's evidence does not assist me in separating physical and psychological factors.

55The respondent's position is that chronic pain is not a mental or behavioural disorder, and Dr. Liu agrees. The respondent argues, as an example, if the applicant has depression because he cannot do things, this does not necessarily mean he cannot do things because of the depression. During cross-examination, Dr. Liu seemed to agree that the above example was sensible. Through cross-examination, the respondent established that the applicant's testimony is consistent that he prefers to do things, wants to do things, and even attempts to do the things he used to do, but either no longer needs to do them or he cannot do them primarily as a result of his physical complaints.

56The applicant's testimony confirms the primary reasons he has not fully returned to his pre-accident activities of daily living. First, the applicant states it is because of his physical impairments. Second, he states he simply no longer has a need to engage in that activity due to lifestyle changes that came about due to his physical impairments. When asked how his mental and physical impairments interact with each other, the applicant explained he wakes up in pain and every little thing he does causes pain leading to depression and anxiety. I recognize that the applicant may not fully comprehend the impact of his psychological condition on his functional limits or how to separate this from physical factors. However, since I do not have a multidisciplinary opinion separating these factors I must assess the evidence and the applicant's testimony wholistically.

57Dr. Liu notes, prior to the accident, the applicant was functioning independently and regularly in his self-care and home-care activities, as well as social, vocational and avocational activities. The applicant had a physically demanding job, he attended church all the time, visited flea markets, estate sales and Toys R Us to compete and obtain collectible items. The applicant played hockey, golf and used to go fishing. The applicant's work took him all over Ontario, and, as a result, he had friends all over Ontario. The applicant also drove his motorcycle. The applicant used to cut his grass between two and three times every week, even cutting it twice in a single session to establish an aesthetic pattern in the grass. The applicant used to independently wash his vehicle between two and three times every week. The applicant is described as being very active, engaged, and proud of his ability to complete 100% of the work inside and outside of his home prior to the accident. The respondent notes the applicant's pre-accident level of task completion in this regard was extremely high. This backdrop is important to understand how much, if any, useful functioning the applicant either retained or regained after the accident.

58The applicant described his post-accident functioning and activity level as being limited to going to the bathroom and going from his bed to his chair or to his couch. The applicant is described wearing the same clothes over a number of days. The applicant explained this was because he was not going to be seeing anyone. The applicant testified that when he was told to abstain from driving, including right after the accident for a couple of months, his daughter-in-law and others drove him to appointments. The applicant also testified his son and daughter-in-law, who live in the same house, assisted with activities of daily living, including making his meals. Some of these described limitations seemed to be at some point close to and after the subject accident.

59In contrast, the applicant's more recent ability, the focus of this hearing, is not as limited as described above. For example, the applicant now regularly drives locally. He only drives short distances, because he states there is no longer a need to drive long distances. He explained he only needed to make three right turns to get to his treatment provider, and he would go in three times a week. He also explained he would regularly get groceries and complete banking on the way back, because he preferred to get things done on a single trip, rather than having to make special trips.

60In a collateral interview, the applicant's neighbour recounted taking the applicant on a road trip to Sudbury and described having to stop every 90 minutes "so he could get out and walk and stretch." The applicant's daughter-in-law states in June 2022 that she drives the applicant if there is a need "to go far", because he cannot drive for long periods. The applicant testified that the vehicles he was driven in to his assessment appointments were uncomfortable for him.

61This suggests a physical, rather than a mental or behavioural impairment, when viewed together with his testimony that he does not have anxiety while driving, but he is on edge if his mother-in-law is driving because of the way she drives. The applicant's testimony seems to contradict Dr. Liu's report which states the applicant experiences anxiety when driving and is frequently startled due to sudden noises while driving. I prefer the applicant's testimony at this hearing over Dr. Liu's report from July 2022, as it is the most up-to-date confirmation of his ability to drive and comes directly from the applicant.

62The applicant was questioned about his ability to independently wash his vehicle as described to and recorded by Samantha Hunt in an Occupational Therapy Progress Report, dated April 13, 2021. The applicant explained he washes his car at the car wash bay by power spraying it. He does not use the brush, and he does not wax and wipe the vehicle like he used to do before the accident. When asked about the brushes available at the car wash bay, the applicant stated he never used them because they damage vehicles and did not provide any information about his ability to use them. He states he now goes to a drive-through car wash. Regarding vehicle washing and detailing, his testimony strongly suggests he cannot wash and detail his vehicle like he used to do as a result of the physical nature of the task and his physical impairments.

63The applicant states he does not cut his grass anymore and that his son has taken over this responsibility. However, in another instance while testifying, the applicant clarified he does try cutting the grass on "good days" but may only cut the front lawn and not the back. The applicant confirmed he does not do his pre-accident lawn maintenance routine including weed and hedge trimming. The latter statements are consistent with the applicant's neighbor stating in June 2022 that the applicant "now does some of his lawn but he moves slowly. He does the basics with the grass now. Before he used to be really on top of it."

64Regarding grass cutting and vacuuming, the applicant's testimony strongly suggests his limitation is a result of the physical nature of the tasks and his physical impairments. The applicant explained he can no longer vacuum the house because it is a heavy vacuum that he bought in 1989. It was apparent he took pride in having the ability to repair it over the years and keep it running despite its age. However, during an occupational therapy assessment, the applicant was able to pull the heavy vacuum out and use it. When the respondent cross-examined the applicant on this point, the applicant confirmed this but added that he did not put the vacuum away afterwards. The applicant's daughter-in-law supported this point by explaining, early on post-accident, he was not able to do the vacuuming, because the vacuum is old and is heavy even for her. She confirmed that the applicant now does the vacuuming from a seated position to clean the area where he sits, and sometimes she will put it away.

65At another instance during cross-examination, the applicant was asked if it was inaccurate that he cannot use the vacuum, because Dr. Patterson noted the applicant does not vacuum as often, rather than not at all. The applicant explained he sits and vacuums, but does not vacuum the hallways, emphasizing he cannot clean the house the way he did before. Dr. Liu's report also states he does laundry and vacuums once a week or as needed. Ms. Christie reports the applicant vacuuming once per month. The evidence points to the physical demands of using his old and heavy vacuum as predominantly limiting him.

66As it relates to work, the applicant's family doctor recommended the applicant does not work post-accident because of the injuries to his lower back and the possibility he could sustain further injury. The applicant testified at times picking up light objects or petting a dog can irritate his back and that's why he could not go back to his physically demanding work. The applicant also referred to feeling delayed as another reason he cannot work now. In so far as this includes a general lack of focus or concentration, I note that this is a separate domain under Criterion 8 for which Dr. Liu provided a Class 3 rating. The applicant's testimony is clear that he has not returned to work primarily because of the physical demands of the job requiring long hours, heavy lifting, heavy equipment and quick action. The applicant provided an example of having to use a 50-foot ladder to carry tools to get on a boat. I note that even the applicant's opening statement frames the issue as having a knock-out-of-work type back injury that then led to psychological impairments, and not psychological impairments that took him out of the workforce.

67Dr. Liu states the applicant does not have any hobbies post-accident because of pain, depression, and amotivation. The applicant testified he does not go to church anymore because it is uncomfortable to sit, kneel, and stand. The applicant tried to go fishing, and he was able to drive there, park, and get set-up. However, after half a dozen casts, he could no longer tolerate the back pain and left after 10 or so minutes. He does not play hockey anymore, and he does not try to compete with collectors looking to buy sought-after collectible items. The applicant explained that he was no longer physically fast enough to compete with groups of people that were trying to get the same collectible items, describing them as being physically 10 steps ahead of him. The applicant testified, for some time, he would go to Toys R Us right when it opened, then to aqua therapy and would stop for groceries. The applicant confirmed he stopped going to Toys R Us because his pain wouldn't allow him to be quick enough to compete with other collectors, and, by the time he would get to the items, the good ones would be taken already. This is another instance where the evidence supports that the applicant is motivated and attempts activities, but he is not physically able to do what he could do pre-accident.

68As it relates to getting groceries, he shops often and independently. According to Dr. Liu's report, the applicant used to shop by carrying a basket and now uses a cart. This is in line with the applicant's testimony that he avoids heavy physical lifting and is in line with his son or daughter-in-law helping him at times.

69The applicant recounted two instances, with washing dishes and with draping Christmas lights outside his house, where he became frustrated as a result of not being able to complete the tasks. In both instances, the applicant described his hands and brain not communicating with each other and feeling that his hands were not working as easily as they should.

70There is some inconsistency in the applicant's evidence relating to how much of the housework he is able to do. The respondent points to the records of Mizel Health Care Services Inc. between March 2021 and June 2023 ("Mizel records"). The respondent noted the Mizel records are prepared by treatment professionals of the applicant's own choosing. For this reason, I give them more weight to the extent that they document the applicant's progression in useful functioning, specifically relating to housework for both inside and outside of his house.

71The Mizel records indicate that the applicant stated, in or around March 2021, that the applicant was doing 50% of the housework both inside and outside of his house, as compared to what he used to do prior to the accident. The records state by August 2021 he was doing 60% of this work. By October 2021, it is noted that the applicant reported he was doing 75% of this work. 75% is confirmed again as of December 2021, March 2022, October 2022, and June 2023. Also confirmed in these records is that the applicant did not require any help with personal care. During cross-examination, the applicant stated he did not recall reporting this progression found in the Mizel records, but he agreed he remembers telling other assessors that he was independent with self care. Dr. Liu's report also states the applicant is able to perform his household tasks independently but not regularly, including housecleaning, laundry, and outdoor maintenance.

72Dr. Liu opines the applicant is sometimes apathetic about his personal hygiene. Dr. Liu notes a period where the applicant had not showered for months because the shower is located in the basement of his house, and he was avoiding taking the stairs. In context, based on the applicant's testimony, this was likely either early on after the accident or it was specific to showers at home. I come to this likely conclusion for three reasons. First, the applicant testified there was a period early on post-accident where he was washing himself at the counter rather than showering or bathing. Second, he explained he showers at the YMCA rather than at home because he cannot wipe the tiles down at home after a shower. Third, the applicant confirmed not currently requiring help with his self care.

73At times, prior to and after the accident, his neighbor helped clear the snow, helping the applicant out with his snow blower. The applicant's son and daughter-in-law also help with clearing snow. The applicant's daughter-in-law testified this was something she was doing pre-accident as well. The applicant testified he no longer shovels snow post-accident. However, the Mizel records indicate the applicant was attempting snow clearing post-accident and reported resulting low back pain in February 2021. The applicant was questioned about an incident in March 2022 where he was once again shovelling snow. The applicant preferred to describe this instance as pushing snow rather than shovelling and confirmed he slipped on ice. The applicant was asked to confirm if he hurt his left groin as a result of this slip on ice and if that was the only area that was hurt. The applicant did not clearly answer these questions and instead explained he felt responsible for clearing the sidewalk, so that nobody gets injured. I find that there is no impairment from a Criterion 8 perspective in the applicant's ability to engage in this activity because he is limited by physical factors.

74By April 2021, the applicant had attempted a 5-minute bike ride outdoors and looked forward to continuing this activity. The applicant's testimony, the Mizel records of August 2021, and Samantha Hunt's records of July 2021 confirm the applicant was riding his bike either daily or almost daily. The Mizel records state the applicant described engaging in his normal morning routine which included an hour-long bike ride. Ms. Hunt records an almost daily 45-minute bike ride routine. When prompted to discuss his bike ride routine, the applicant stated it was recommended that he ride a bike, but that Ms. Hunt had suggested an indoor, stationary bike. The applicant's testimony suggested that 1 hour of bike riding was inaccurate and he added that it was not daily, because he wouldn't go for a ride if it rained or if it was too cold. Ms. Hunt's records and the applicant's testimony confirm that he is most limited in activities like walking and bike rides as a result of hip pain and becomes discouraged when it bothers him. Ms. Hunt's records state the applicant's x-ray results revealed osteoarthritis in his left hip. When cross-examined, the applicant confirmed he had reported neck and lower back pain post-accident but not hip pain. The applicant explained this was because it was not predominant at that time. In any case, it is clear that it is the applicant's physical impairment that is limiting his walking and bike riding activities.

75The applicant's daughter-in-law testified that she drives him around, makes meals, shovels, and assists on activities of daily living. The applicant argues he can only do a small portion of his activities of daily living, especially as compared to pre-accident. This contradicts the Mizel reports as it relates specifically to indoor and outdoor housework, as one example. The applicant did not establish a good reason for this inconsistency. The applicant's testimony confirmed he is independent with self care. The applicant can do his own shopping, basic meal preparation and house chores, though at a slow pace and he avoids heavy physical activities. The applicant testified he can make a simple breakfast and simple dinner for himself and wash his plate and cup of coffee. The applicant specifically confirmed he can deal with messes he makes himself, but not more than that. As an example, the applicant testified that he cannot do all the dishes after a Christmas dinner.

76The AMA Guides note that a marked or Class 4 limitation in two or more domains would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment. The applicant seeks to establish a Class 4 limitation in three domains; however, I note that the applicant is not precluded from performing complex tasks without special support and is predominantly limited physically. It is clear from the applicant's testimony that he has not shied away from his activities of daily living, but rather attempts them and then decides to adjust his activity levels according to his physical abilities.

77Dr. Liu writes in his report that neither the Schedule nor the AMA Guides specifically define what "Significantly", "Impede" or "Useful Function" mean, as they relate to a marked impairment under Criterion 8. Dr. Liu describes part of his working definition of "Significantly" as: "more than insignificant, more than minimally". In my view, and as the respondent argues, Dr. Liu lowered the standard for a marked impairment for this assessment. If the term "significantly" meant "more than insignificant", a Class 3 rating could capture this level of impairment. The respondent argues to be "more than insignificant" or "more than minimal" can be classified as a Class 3 rating, i.e., where impairment is compatible with some, but not all useful functioning.

78In summary, I find the applicant did not take the approach recommended by the AMA Guides in assessing the separation of his physical and psychological factors. I find that the applicant attempts his activities of daily living and he is predominantly limited because of his physical impairments. I also find that if I had found the applicant was predominantly limited because of a mental or behavioural disorder, his activities of daily living still do not meet the definition of a Class 4 impairment.

79For the reasons above, I find the applicant does not meet the definition of a Class 4 impairment under Criterion 8 for his activities of daily living. As a result, since the applicant cannot meet the minimum required three Class 4 ratings, I do not need to assess the applicant's impairment level in social functioning or adaptation.

Is the applicant entitled to the plans in dispute?

80The applicant is not entitled to the plans in dispute because the parties acknowledged he has already exhausted his available funding. Whether the plans in dispute are reasonable and necessary is moot under the circumstances.

Interest

81Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits to which s. 51 interest would apply in this decision.

Award

82The applicant sought an award under s. 10 of Reg. 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. I find that the respondent unreasonably delayed the payment of benefits to the applicant.

83In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the Financial Services Commission of Ontario case: Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 ("Plowright"). According to Plowright, unreasonable conduct can include "excessive, imprudent, stubborn, inflexible, unyielding or immoderate" behaviour. In November 2024, this approach was reviewed by the Divisional Court in McDonald v. Aviva Insurance Company, 2024 ONSC 6030.

84The applicant seeks an award in the amount of 25 per cent of the total benefits payable. The respondent concedes that there was unreasonable delay, but it argues that there are mitigating factors so the amount of the award should not exceed 10 per cent. The respondent concedes that the applicant was promised entitlement to specific benefits, making the relevant invoices payable, and that they were unreasonably delayed. The narrow issue before me is therefore the amount or percentage of the award.

85A letter by the respondent to the applicant, dated March 29, 2022, confirmed the applicant's non-catastrophic impairment limit of $65,000.00 was exhausted. However, this letter also confirmed an agreement between the parties for the applicant's withdrawal of a previous application at this Tribunal. In exchange, the respondent would fund amounts payable for four treatment plans beyond the applicant's limits. Payments in excess of the $65,000.00 were made by the respondent in the amount of $3,729.84 by October 28, 2022, but two amounts forming part of the agreement remained unpaid until on or about April 2, 2024. The two amounts are $630.57, in an invoice dated June 20, 2022, and $373.44 in an invoice dated December 30, 2022. The dates of these invoices were provided by counsel during closing submissions and were not contradicted. I have accepted the dates. This is a delay of approximately 21 months and 15 months, respectively.

86The respondent argues that I should consider mitigating factors in assessing the amount of the award, because the delay was inadvertent and beyond the respondent's contractual obligations. The applicant argues it was not a simple error, and that the respondent induced the application withdrawal and then did not deliver on its promise. Even if I accept that the delay was inadvertent, consumer protection legislation is intended to protect the applicant from both intentional and unintentional unreasonable conduct. In this case, the conduct was still imprudent, and the respondent must take responsibility for the unreasonable delay. The applicant's perspective that he felt misled or deceived by the respondent is reasonable under the circumstances.

87I am not persuaded by the respondent's argument that the promise to pay being beyond the respondent's contractual obligations is a mitigating factor in assessing the amount of the award. Even though the terms of their agreement went beyond the benefit limit set in the Schedule, the respondent had received the withdrawal of the previous Tribunal application without delivering fully on its own promise for approximately 15-21 months. In my view, the amounts it promised to pay in excess of the limit can be argued to be beyond the Schedule and can also be argued to become a payable benefit through settlement or further agreement. However, I am more focused on the context that disputes arising from the Schedule between the parties properly land at this Tribunal. So, inducing the withdrawal of an application at this Tribunal regardless of how the withdrawal was induced should be viewed wholistically as dealing with something squarely within the parameters of the Schedule. To be clear, the limited question before me is to what extent this is a mitigating factor and, in my view, it is not and my reasons are limited to this context.

88For the above reasons, I find that the respondent is liable to pay an award of 25 per cent using the following formula:

25 per cent x (amount unreasonably withheld or delayed benefits + interest on these benefits calculated under the Schedule + compound interest calculated as per s.10 of Regulation 664).

ORDER

89For the reasons above, I find that:

i. The applicant's impairments do not meet the threshold of catastrophic impairment as defined by the Schedule under Criterion 8.

ii. The applicant is not entitled to the remaining benefits in dispute.

iii. The respondent is liable to pay an award for unreasonably withheld or delayed payments to the applicant, specifically $630.57 and $373.44 from their respective invoice dates to April 2, 2024 as follows. 25 per cent x (amount unreasonably withheld or delayed benefits + interest on these benefits calculated under the Schedule + compound interest calculated as per s.10 of Regulation 664).

iv. The applicant is not entitled to interest under s. 51 of the Schedule beyond the amount applicable under the formula for an award.

Released: June 27, 2025

__________________________

Amar Mohammed

Adjudicator