Licence Appeal Tribunal File Number: 24-005074/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:
Vladimir Krupnikov
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Christopher Evans
APPEARANCES:
For the Applicant:
Olga Kanevsky, Counsel
Julia Logoutova, Paralegal
For the Respondent:
Jasvinder Singh, Counsel
Rose Bilash, Counsel
Court Reporter:
Siriana Taylor
HEARD: by Videoconference:
April 22-25, May 9, 2025
OVERVIEW
1Vladimir Krupnikov, the applicant, was injured in an accident on February 1, 2020. He was thrown from his snowmobile when he unexpectedly hit a rock buried under the snow. He continues to suffer from physical and psychological injuries. In this application, he alleges that he sustained a catastrophic impairment within the meaning of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). He also alleges that he is entitled to medical benefits and assessments partially denied by The Personal Insurance Company, the respondent, the cost of preparing a disability certificate, interest, and an award under s. 10 of Regulation 664: Automobile Insurance on the grounds that the respondent unreasonably delayed payment of benefits.
ISSUES
2The issues in dispute are:
Has the applicant sustained a catastrophic impairment as defined by the Schedule?
Is the applicant entitled to $3,000.00 ($5,226.00 less $2,226.00 approved) for a catastrophic impairment assessment, proposed by Chronic Pain Clinic in a treatment plan/OCF-18 (“plan”) submitted on February 26, 2024?
Is the applicant entitled to $10,000.00 ($20,226.00 less $10,226.00 approved) for a multidisciplinary catastrophic impairment assessment, proposed by Chronic Pain Clinic in a plan submitted on January 22, 2024?
Is the applicant entitled to $200.00 for the completion of a disability certificate/OCF-3 dated June 24, 2024?
Is the applicant entitled to $1,292.74 ($4,590.74 less $3,298.00 approved) for physiotherapy, proposed by Winford Health Clinic in a plan submitted on June 27, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant requested costs in his closing submissions.
RESULT
4The applicant sustained a catastrophic impairment.
5The applicant is partly entitled to the medical benefits and assessments in dispute with interest.
6The applicant is not entitled to an award or costs.
PROCEDURAL ISSUES
7The parties filed eight motions in advance of the hearing and the applicant filed a ninth midway through. The parties resolved or withdrew six of the motions at the hearing, leaving three for me to decide. These three motions related to documents that both parties served and filed less than 21 days before the start of the hearing.
8The 21-day deadline for serving and filing document briefs under Rule 9.4.3 of the Licence Appeal Tribunal Rules, 2023 was April 1, 2025. Rule 9.4.4 provides that the Tribunal considers materials that are served and filed less than 21 days before a videoconference hearing to be filed late. It provides further that the Tribunal will consider whether late-filed documents can be used at the hearing after providing the parties an opportunity to make submissions. In making that determination, the Tribunal may consider any relevant factor, including those set out at Rule 9.3.
9Both parties filed motions seeking to use late-filed documents at the hearing: the respondent on April 4, 2025, and the applicant on April 17, 2025. Each opposed the other’s motion. On May 6, 2025, the applicant filed a motion concerning the scope of my ruling on the respondent’s April 4, 2025 motion.
The respondent’s April 4, 2025 motion
10The respondent moved for an order allowing it to use a supplementary document brief at the hearing. The April 4, 2025 Notice of Motion stated that the document brief consisted of the “claimant’s social media posts/videos” and attached screenshots of the applicant’s LinkedIn profile and his YouTube account. The applicant filed written submissions opposing the motion. The respondent’s April 16, 2025 reply submissions on the motion attached the YouTube videos and an Investigation Report.
11In addition to considering the parties’ written submissions, I heard oral submissions on the first day of the hearing. I provided oral reasons granting the motion on the second day.
12The respondent said that it did not serve and file the documents earlier because it was unaware of their existence until shortly before April 4, 2025. It argued that the documents were relevant to whether the applicant sustained a catastrophic impairment, and that he would not be prejudiced by admitting them because he was aware of them as their author. It relied on Bishara v Sonnet Insurance Company, 2024 CanLII 4245 (ON LAT), in which the Tribunal admitted social media posts served and filed six days before the hearing for those reasons.
13The applicant argued that the respondent should not be permitted to use the documents at the hearing because there was no reason why it could not have served and filed them by the deadlines set by the Tribunal and to use them would amount to trial by ambush.
14I found that the Rule 9.3 factors weighed in favour of permitting the respondent to use the documents at the hearing. The respondent’s reason for not complying with the 21-day deadline was not compelling and the applicant opposed the motion. Those factors weighed against permitting the respondent to use the documents. However, in the circumstances of this case, they were outweighed by the other Rule 9.3 factors:
i. The substance of the information was entirely with the applicant’s knowledge because he was the author of the social media posts;
ii. The prejudice to the applicant was not significant because he had always been aware of the documents’ existence, he became aware that the respondent intended to rely on them 18 days before the hearing, and he had sufficient time to prepare his testimony addressing them. He himself served and filed new documents five days before the hearing and took the position that the respondent still had sufficient time to prepare. He could fairly be expected to do the same with respect to the respondent’s documents, which were served and filed before his;
iii. The documents were relevant to whether the applicant sustained a catastrophic impairment. The LinkedIn profile concerned how long he was employed after the accident, and the YouTube videos concerned his ability to carry on activities of daily living. Both were live issues at the hearing that related to whether the applicant sustained a catastrophic impairment due to a mental or behaviour disorder.
15The respondent entered the Investigation Report and the YouTube videos into evidence on April 23, 2025, and put them to the applicant, his wife, and other witnesses on April 23 and 25, 2025.
The applicant’s May 6, 2025 motion
16In a Notice of Motion filed on May 6, 2025, the applicant stated that his wife was the author of certain social media posts in the Investigation Report. He requested that those parts of the Investigation Report be excluded, or, in the alternative, that I clarify whether my order on the respondent’s April 4, 2025 motion extended to those social media posts. He argued that the respondent said in its submissions on the April 4, 2025 motion that the social media posts should be admitted because he was their author, that the April 4, 2025 motion materials did not include or mention social media posts created by his wife, and that he was unaware the respondent intended to rely on them until it served them on April 16, 2025.
17The respondent opposed the motion, arguing that the applicant did not object when the social media posts in question were put to the witnesses, and that it served and filed the Investigation Report with its April 16, 2025 reply submissions so there was “no allegation of tampering.”
18I heard the motion on May 9, 2025 and dismissed it with written reasons to follow.
19The respondent argued the April 4, 2025 motion on the premise that the applicant was the author of the social media posts in question. That was not accurate. When I granted the motion, I was also unaware that the documents filed with the respondent’s reply submissions were broader in scope than those identified in its Notice of Motion. Had I decided the motion solely on the basis of the parties’ written submissions, it might have been necessary to revisit my decision. However, I concluded that the analysis under Rules 9.4.4 and 9.3 was substantially the same:
i. The applicant had the Investigation Report when he made oral submissions on the April 4, 2025 motion at the start of the hearing. He was aware of what social media posts the respondent sought to use, including his wife’s. In his oral submissions, he did not distinguish between his and his wife’s social media posts. He also did not object when the respondent took witnesses to posts authored by his wife;
ii. The social media posts in question are all photographs of the applicant. Even though he did not post them to social media himself, he was no less aware of the information they contain; and
iii. The applicant demonstrably had adequate time to prepare himself and his wife to address the social media posts in their testimony. They had already been examined by the time he filed the May 6, 2025 motion.
The applicant’s April 17, 2025 motion
20The applicant served and filed two letters from GVT Labs and Imaging Inc. on April 17, 2025. He submitted that he co-founded GVT and worked for it after the accident. The letters in question describe the applicant’s job responsibilities and remuneration. They are one page each.
21At the case conference on September 23, 2024, the Tribunal ordered the applicant to produce employment files for any employment he has held since the accident. The GVT letters fall in that category.
22In his submissions on the motion, the applicant said that he requested his employment file from GVT five or six times after the case conference, that he did not receive the letters until April 16, 2025, and that he served and filed them the following day. He submitted that he should be permitted to use them at the hearing because they were relevant and because the respondent requested them.
23The respondent argued that the GVT letters were irrelevant because the parties already had the applicant’s Employer’s Confirmation Form (OCF-2) and employment files, and the letters added nothing new. It also argued that the applicant should have served the letters by the deadlines for document exchange set at the case conference.
24I found that the Rule 9.3 factors weighed in favour of permitting the applicant to use the documents at the hearing:
i. The applicant’s reason for non-compliance with the 21-day deadline was valid. The documents were in the possession of a third party. The applicant acted diligently to obtain them, and served and filed them one day after receiving them;
ii. The documents were relevant. It was common ground that the applicant’s other employment documents were relevant. As the subject matter of the GVT letters is the same, they were just as relevant. Whether they added anything new was a separate question; and
iii. The prejudice to the respondent was not significant:
a) As the respondent took the position that there was no new information in the documents, permitting the applicant to use them would not take it by surprise;
b) Given that the documents were a total of two pages, reviewing them was not time consuming; and
c) The respondent’s argument that the applicant should have served the documents by the deadlines set at the case conference was unconvincing. The same was true of its late-filed documents, particularly given that its reason for delay was much less compelling than the applicant’s. I ruled that the respondent may use those documents. By the same token, the applicant’s late service and filing of the GVT letters should not have prevented him from doing the same.
ANALYSIS
The applicant sustained a catastrophic impairment
25The applicant alleges that he sustained a catastrophic impairment within the meaning of ss. 3.1(1)7 and 8 of the Schedule, commonly known as criteria seven and eight. I find that he meets the test for criterion eight. I therefore need not consider whether he meets the test for criterion seven.
26To meet the test under criterion eight, the applicant must establish that he sustained a mental or behavioural disorder resulting in a class four impairment (marked impairment) in three or more areas of function that precludes useful functioning, or a class five impairment (extreme impairment) in one or more areas of function that precludes useful functioning. Impairment is rated in accordance with chapter 14 of the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
27The four areas of function are:
Activities of daily living;
Social functioning;
Concentration, persistence, and pace; and
Deterioration or decompensation in work or work-like settings (adaptation).
28The five classes of impairment are:
Class 1: No impairment
Class 2: Mild impairment
Class 3: Moderate impairment
Class 4: Marked impairment
Class 5: Extreme Impairment
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
29Classes 1, 2, 3, and 5 are defined by a person’s level of useful functioning: respectively, all useful functioning, most useful functioning, some useful functioning, and no useful functioning. Class 4, on the other hand, is defined by whether useful functioning is significantly impeded rather than the residual level of useful functioning. Put in the same terms as the other classes, a class 4 (marked) impairment entails less than some useful functioning, but more than none.
30The parties agree that the applicant suffers from a mental or behavioural disorder due to the accident. Dr. Nina Belyakova, the applicant’s expert psychologist, diagnosed him with Major Depressive Disorder, Single Episode, Moderate, with Anxious Distress; Post-Traumatic Stress Disorder; and Somatic Symptom Disorder, Persistent with Predominant Pain. Dr. Ahmed Jwely, the respondent’s expert psychiatrist, diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Moderate to Severe; and Somatic Symptom Disorder. In his testimony, Dr. Jwely expressed uncertainty about his diagnosis of Adjustment Disorder based on the evidence presented to him. However, the respondent did not take the position that the applicant has no mental or behavioural disorder at all in its closing submissions.
31The applicant submits that he has marked impairments in all four areas of function. He, his wife, and Dr. Belyakova testified at the hearing. The respondent submits that he has moderate impairments in all four areas of function. It called Dr. Jwely and Kitty Shum, an occupational therapist who conducted two assessments of the applicant.
Activities of daily living
32The AMA Guides state that activities of daily living include activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities, cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring for self, grooming, using the telephone and directory, using the post office, and working. The AMA Guides direct assessors to judge the quality of these activities in the context of the individual’s overall situation by their independence, appropriateness, effectiveness, and sustainability, to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction, and to assess not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions. As an example, the AMA Guides state that a person who can cook and clean may still have a marked impairment if they are too fearful to leave the home.
33The applicant was in good health before the accident. He worked full-time as a data analyst, a job that he described as challenging and fulfilling. He testified that he was a triathlete who worked out for hours each day, that he was an amateur pilot, and that his other hobbies included photography, scuba diving, boating, motorcycling, snowmobiling, fishing, and playing the guitar. He shared household responsibilities equally with his wife, including cooking, cleaning, laundry, buying groceries, house maintenance, and taking care of their two teenage daughters.
Self-care and household tasks
34The applicant and his wife spoke to his ability to complete self-care and household tasks post-accident. Their testimony was generally consistent with what he reported to Dr. Belyakova, Dr. Jwely, and Ms. Shum. Taken together, this evidence shows that the applicant’s impaired motivation and persistence, anxiety, preoccupation with pain, and vulnerability to becoming easily overwhelmed significantly impede his ability to perform everyday tasks:
i. The applicant said that he rarely gets out of bed, that he lacks the motivation to leave the house, and that he rarely does so. His wife said that he never wants to do anything and spends all of his time on the couch;
ii. The applicant showers and changes his clothes every two to four days. He would go longer without prompting from his wife. His wife said that their daughters are reluctant to hug or kiss him because he smells;
iii. The applicant takes medication to sleep. Even then, he typically sleeps three to five hours per night and does not feel restored in the morning;
iv. The applicant has not kept up his pre-accident hobbies and activities except for playing the guitar; and
v. The applicant is minimally involved in performing household tasks. His wife is responsible for cooking, except meals requiring little or no preparation. They hire a cleaner and a landscaping service for tasks such as shovelling and lawn care. His wife is responsible for managing their finances and paying bills, although she will consult with him. She also makes sure that he takes his medications.
35Ms. Shum tested the applicant’s real-life ability to complete activities of daily living in her occupational therapy and situational assessments, both of which she completed at his home. She found that he did poorly even though he was “an overall willing and cooperative participant”:
i. During the occupational therapy assessment, Ms. Shum asked the applicant to perform a series of household tasks over a one-hour period. The tasks included making his bed, changing his clothes, washing a set of dishes, finding his doctor’s phone number, cleaning the floors or the bathroom, doing laundry, and looking for an item to use if the power went out. He partially completed the first four tasks, refused to attempt the cleaning or laundry tasks, and said that he would use his phone as a flashlight if the power went out but declined to retrieve it. Ms. Shum observed that he “demonstrated only minimal engagement in household tasks and frequently expressed frustration or fatigue.”
ii. Ms. Shum next asked the applicant to make a simple meal and a drink using at least five ingredients and the stove or the oven, then clean the kitchen after. He did not complete the task as requested. He agreed to make a coffee for himself, which required him only to push the button on the machine and add cream from the fridge. Aside from that, he took a tart from a box and put it in the oven and said that he could eat spaghetti from a takeout box on the counter “without additional preparation.” Ms. Shum observed that he “appeared to deteriorate toward the end of the assessment, secondary to reports of pain and fatigue.” He said that he could not continue and declined to attempt any other activities even if provided the opportunity to take an extended break. Ms. Shum consequently ended the assessment early.
iii. Ms. Shum conducted the situational assessment five days later. It was intended to include a community outing, which would evaluate the applicant’s abilities “in an uncontrolled environment and in the presence of increased demands.” Ms. Shum asked him to go with her to a local grocery store, where they would buy ingredients for a meal that he would prepare at home. He refused to leave the house because he did not feel well enough. She attempted to encourage him and proposed as alternatives that they go for a coffee or a walk around the neighbourhood. He again refused.
iv. After completing some sedentary tests, the applicant asked Ms. Shum to end the situational assessment because he was exhausted and anxious. He refused to attempt any further tasks even after being offered an extended break. Ms. Shum again ended the assessment early.
Travel
36The applicant’s post-accident travel was hotly contested. The social media posts tendered by the respondent mainly consisted of photographs taken of the applicant while on vacation with his family at various places around the world, including Costa Rica, Greece, Kazakhstan, Malaysia, and Thailand, among others. The applicant also lives in Spain for part of the year, which requires him to travel to and from Canada. The respondent examined the applicant, his wife, Dr. Jwely, and Dr. Belyakova at length on his post-accident travel, taking each of them through the photographs one by one. The respondent also made a copy of the applicant’s passport an exhibit and took him and Dr. Jwely through the stamps of his post-accident travel destinations.
37The respondent submits that the applicant’s ability to travel around the world is proof that he is not markedly impaired. It relies on Dr. Jwely’s opinion, given in his testimony, that a person who can travel internationally would not be markedly impaired because doing so requires one to complete a complex, lengthy series of tasks such as planning the trip, travelling to the airport, checking in, and getting to the gate. The applicant stresses that his wife always makes all the arrangements and travels with him, and that he relies on painkillers, sleeping pills, and anxiety medication to get through trips. In response, the respondent argues that the only evidence on this point is the applicant’s and his wife’s testimony, which should not be accepted because it is self-serving and uncorroborated. Specifically, he filed no objective evidence showing that he is unable to book flights, call a taxi, navigate through the airport, and so on.
38I disagree that the applicant’s post-accident travel is the smoking gun that the respondent submits.
39The narrow argument advanced in the respondent’s closing submissions centred on the complexity of international travel. That argument fails because the applicant’s wife always makes the arrangements and always accompanies him. On cross-examination, the applicant repeatedly pressed Dr. Jwely on whether those facts would change his opinion. He ultimately answered that they raised further questions, and he did not know.
40The AMA Guides require one to consider the quality of the applicant’s travel in context, with regard to his ability to carry it out independently, appropriately, effectively, and sustainably, and with regard to whether he is capable of initiating and participating in it independent of supervision or direction. The bare fact that he can take a plane from one city to another is not dispositive. The evidence reviewed above shows that the applicant would find it extremely onerous to plan and carry out an international trip on his own. Given that he lacks the capacity to carry out much smaller tasks, it is highly unlikely that he would do so independently and on his own initiative. Even if he could bring himself to attempt it, I find that he would fare very poorly and that he would find making such efforts unsustainable in the long run.
41I decline to place no weight on the applicant’s and his wife’s testimony that she always travels with him and always makes all the arrangements. It is consistent with the evidence reviewed above. It was not necessary for the applicant to file objective evidence regarding his ability to complete each step in an international trip, such as booking a flight or calling a taxi. He is not incapable of completing each and every one of those steps but finds them prohibitive taken together.
42Given the emphasis that the respondent placed on the social media posts and its submission that the applicant’s and his wife’s testimony was self-serving, I was left with the distinct impression that it sought to impugn their credibility. While the applicant claims to be largely bed- and house-bound, the respondent used the social media posts to paint a detailed picture of travel to exotic destinations, fine dining, and merrymaking with family and friends. The implication was that his injuries are less serious—perhaps very much less serious—than he claims.
43I disagree that the social media posts impugn the applicant’s and his wife’s credibility. Social media posts are not a reliable indicator of a person’s day-to-day lifestyle. They are most often carefully curated efforts to put the person in their best light. The applicant said that the social media posts represent 2-5% of his actual lifestyle. His wife said that they represent less than 1%. Both said that taking vacations and living part-time in Spain were forceful attempts on the part of his wife to get him out of the house and live something closer to a normal life. The applicant resists going. When on vacation, he spends most of his time in the hotel room. His wife memorably said “I am bringing him from one couch to another couch like [a] bag of potatoes.” She said further that his participation in the vacations did not consist of much more than posing for the photographs. On the trip to Greece, for example, she hired a private car to shuttle him and their daughters to scenic spots for pictures. She described it as an artificial attempt to create some happy memories and project a positive image of the family. She remarked that going through the photographs on cross-examination had been very painful because they are so far removed from real life.
Work
44The applicant’s post-accident work history was also hotly contested. After the accident on February 1, 2020, he returned to Norbord Inc., his pre-accident employer, in late June or early July of 2020. He worked there until December 2020, when a heart condition required him to undergo emergency surgery. He resigned in January 2021 shortly after returning to work. He then worked at GVT Labs and Imaging Services Inc., a company he had previously co-founded with two friends. According to a letter provided by GVT, his job consisted of “light information technology duties,” he worked no more than 10 hours per week on average, and he resigned on January 8, 2022.
45The applicant testified that his attempt to return to work at Norbord was unsuccessful. He worked only a few hours per day at the most. He had difficulty concentrating, had to take frequent breaks due to fatigue and pain, and struggled to cope with the pressure placed on him by his responsibilities and his coworkers. He was not productive and was not able to meet his deadlines. His relationships with his colleagues frayed, partly because of his poor work but also because he became increasingly frustrated and short-tempered. He described there being constant friction, that he would snap at coworkers, say inappropriate things, and yell, and that two altercations were reported to human resources. He resigned from Norbord when it denied his request for a one-month leave of absence after his heart surgery. He did not look for a similar job because he felt unable to do the work.
46The applicant testified that his responsibilities at GVT were very basic compared with those at Norbord, that he could do the work on a laptop in bed, and that he stopped working at GVT when he started living in Spain part-time in or around January of 2022.
47The applicant also testified that before the accident, he worked for two and half years to obtain certifications in cyber security from York University. This was an accomplishment that he took pride in. After the accident, he lost the certifications because he was unable to complete 120 hours of continuing professional development over three years.
48The respondent submits that the applicant has been able to work since the accident and that he has in fact done so. It argues that his testimony regarding his work history is self-serving and should not be accepted for the following reasons:
i. Nothing in Norbord’s employment file indicates that any complaints were made about the applicant or that he did not get along with his colleagues. To the contrary, the file shows that Norbord wanted him to work on an upcoming project as of December 2020;
ii. The applicant did not report any interpersonal issues at Norbord to the assessors. According to Dr. Belyakova’s and Ms. Shum’s reports, he identified his inadequate job performance as his reason for resigning. Dr. Jwely testified that the applicant told him the same;
iii. The applicant did not disclose that he had founded and worked at GVT to the assessors;
iv. The applicant’s LinkedIn profile states that he worked at GVT until October 2023, not January 2022 as he claims; and
v. His income tax returns show that he earned more money after the accident than before.
49I decline to place no weight on the applicant’s testimony regarding his ability to work after the accident. It is consistent with the evidence reviewed above regarding his impaired ability to perform other activities of daily living. It is also consistent with the evidence regarding his impaired social functioning, which I review below. I disagree that the evidence highlighted by the respondent impugns his credibility or reliability as a witness on this point:
i. Norbord’s employment file is inconclusive. It consists of his pay statements, his job description, his offer of employment, his resume and certificates documenting his credentials, his new employee information sheet, tax documents, a January 26, 2021 email denying his request for a leave of absence, and a January 31, 2021 email exchange in which he resigned. These documents do not shed any light on his job performance before or after the accident, including whether any complaints were made about him. His counsel asked Norbord to provide any performance reviews it had, but it advised it had nothing to provide. I do not see a document in the file regarding Norbord’s plans for the applicant as of December 2020. I take the respondent to be referring to a January 31, 2021 email in which a coworker admonished him for missing a project team call. In his reply, the applicant announced his resignation. The email does not support the contention that Norbord was satisfied with his performance or that it planned to use him on upcoming projects.
ii. I recognize that the applicant did not tell the assessors that interpersonal issues were one of his reasons for leaving Norbord. However, this omission does not meaningfully reduce the weight to be placed on his testimony. His poor job performance and his interpersonal issues were not mutually exclusive reasons. There is no indication that the assessors pressed him to state his reasons exhaustively or rule out the possibility that interpersonal issues were a factor.
iii. The applicant reported to Ms. Shum that after leaving Norbord, “he joined a venture with two business partners.” Although he does not name the company, it clearly fits the description of GVT in his testimony and GVT’s letters. Dr. Jwely reviewed Ms. Shum’s reports in preparing his own and quoted them extensively.
iv. The applicant said on cross-examination that his LinkedIn profile inaccurately stated his end date at GVT. In any event, the specific end date is irrelevant. He did not claim to stop working at GVT because he was unable, but because he started living in Spain part-time. The end date therefore has no bearing on his level of function.
v. The applicant and his wife testified that his post-accident income was higher because of passive income from the sale and lease of real estate. The respondent argues that there is no evidence to corroborate their testimony. I disagree that this is reason to doubt them or to draw an adverse inference that the applicant has been working more than ever. He could not reasonably have been expected to foresee that he would have to lead evidence parsing out the sources of his post-accident income. The respondent submits further that earning passive income is “adaptive in its own right.” It is a way of making ends meet, but that is a separate question from the applicant’s capacity to work.
50I conclude that the applicant’s ability to work is limited but not non-existent. He was unable to resume his pre-accident duties at Norbord. At GVT, he worked up to 10 hours per week from home performing simple tasks.
Conclusion
51I find that the applicant has a marked impairment in the activities of daily living domain of function. He neglects his personal care, is minimally involved in household tasks, rarely goes out, and is largely inactive. I disagree that his travel abroad reflects a higher level of function. His wife always plans the travel and always accompanies him, he resists going, and he spends most of his time on vacation in his hotel room. While his limited ability to work may imply a higher level of function on its own, it is only one of many activities of daily living. I conclude that the applicant’s useful functioning is significantly impeded overall.
Social functioning
52The AMA Guides state that social functioning refers to an individual’s capacity to interact appropriately, communicate effectively, and get along with others, including family members, friends, and members of the public. 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. Other indicators of social functioning include the ability to initiate social contact with others, communicate clearly, and interact and actively participate in group activities and cooperative behaviour, and to show consideration for others, awareness of others’ sensitivities, and social maturity. Social functioning in work situations may involve interactions with the public, responding to persons in authority such as supervisors, or being part of a team. An assessor must consider not only the number of aspects in which social functioning is impaired, but the overall degree of interference with a particular aspect or combination of aspects.
53The applicant described himself as an outgoing person before the accident. After the accident, his social circle shrank, and his continuing relationships became increasingly strained. He and his wife testified that he became irritable, short-tempered, and confrontational. He reported similar issues to Dr. Belyakova, Dr. Jwely, and Ms. Shum, albeit in more reserved language. He testified that when he loses his temper he will yell or scream at his wife and daughters, then retreat to his room. His wife testified that he alternates between being unresponsive and aggressive, that he is constantly angry and combative, and that she and their daughters are afraid to say anything that may trigger him.
54After 23 years of marriage, the applicant’s wife decided to divorce him in January 2025. It was clear that she had great difficulty making that decision because she still cares for him and is concerned about his well-being. However, she had reached her limit and was left bitter and exhausted. In her words, it is “impossible” to live with him when there is “screaming and unhappiness” all the time, and that the situation has “destroyed” the family.
55The applicant and his wife testified that his relationships with his daughters have also unravelled. His elder daughter rarely speaks with him and avoids visiting. His relationship with his younger daughter is also very distant, although she will call him on occasion. His wife said that they support her decision to divorce him.
56The applicant cried when he tried to explain how his mental illness had led him to alienate his wife and daughters. I took him to be feeling a mixture of regret, helplessness, and shame.
57The applicant testified that his work relationships frayed after his return to Norbord. He also referred to there being conflict with his partners at GVT, leading one of them to leave the company and his friendship with the other to become strictly a matter of business. His wife testified that she could not let him deal directly with the property manager and clients for their rental properties in Spain because he constantly fought with them and would say inappropriate words she could not repeat.
58I find that the applicant has a marked impairment in the social functioning domain. He is severely impeded in his ability to interact appropriately and get along with others. His relationships with his wife and daughters are highly dysfunctional. His post-accident work history has been punctuated by conflict, inappropriate behaviour, and altercations. He largely isolates himself, which limits his contact with members of the public. I was not referred to much evidence on this aspect of his social functioning aside from the assessors’ observations that he behaved appropriately. However, the AMA Guides caution that one must consider the number of aspects in which social functioning is impaired and the overall degree of interference with a particular aspect or combination of aspects. The applicant may often be able to comport himself appropriately in routine, day to day interactions. However, conflict and stress are inevitable in social situations. In such cases, the applicant’s volatility risks leading to explosive and inappropriate behaviour.
59The respondent again relies heavily on the social media posts, arguing that they show the applicant engaging with his family in what appear to be normal, caring, loving relationships. I place no weight on the social media posts in that regard. The fact that the applicant and his family are smiling in the photographs has no bearing on the health of their relationships. To the contrary, his wife described them as artificial attempts to create the appearance of a normal, happy family life.
60The social media posts also show the applicant and his wife visiting or hosting friends. In one video, for example, he makes a show of cooking an omelette for guests. These social media posts demonstrate that that applicant still has some social interactions. However, those interactions are infrequent and superficial. The applicant and his wife addressed the omelette video in their testimony. They said the guests were two of their closest friends. The applicant wanted to stay in bed, but she forced him to make an appearance. She prepared the omelette ingredients in advance, which required him to put in only a few minutes’ effort. She described the video as an act put on for show, just like the travel photographs. He likewise said that the video did not accurately reflect his social life. He said that when friends visit, he usually greets them then retires to his bedroom at the first opportunity. He also said that his wife is the one who initiates social outings.
61The respondent notes that the applicant did not report having marital problems to the assessors even though he claims they began six months after the accident. It notes further that the applicant and his wife continue to live together. In its submission, these facts “must be considered in the context of the numerous inconsistencies of the details of the claimant’s life.” I take it to be arguing that the applicant and his wife are in fact not estranged, and that their testimony on this point is self-serving and untrue. I do not accept that submission for the following reasons:
i. While the applicant ought to have been more forthcoming with the assessors, it is understandable why he was not. He alluded to having difficulty behaving appropriately, albeit in understated language. The collapse of his marriage and his relationships with his daughters is a highly personal matter that he finds painful and that reflects poorly on him. I do not infer from his reluctance to discuss it with strangers that his marital problems do not exist and that he and his wife made them up.
ii. The fact that the applicant and his wife still live together does not imply that they are happily married. First, the hearing began four to four-and-a-half months after she first decided to seek a divorce. She testified that they had not yet separated, partly because of an unsuccessful last-ditch attempt at reconciliation and partly because there are logistical matters that must be settled first. Second, the applicant depends heavily on her to cook and take care of their household. Third, they testified that they were living in different parts of their house in Spain (where they were currently staying) and did not see each other except where strictly necessary.
iii. The applicant and his wife expressed sincere pain when describing the dissolution of their marriage. Both became emotional during those parts of their testimony. On a balance of probabilities, I find that they were telling the truth rather than that they were sophisticated liars.
Deterioration or decompensation in work or work-like settings (adaptation)
62The AMA Guides describe deterioration or decompensation in work or work-like settings as repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
63The best evidence of the applicant’s level of function comes from the tests administered by Ms. Shum at the occupational therapy and situational assessments. I reviewed some of those tests above. They are relevant to the applicant’s level of impairment in the adaptation domain to the extent that they illustrate his ability to handle stress attendant to work-like tasks. Ms. Shum observed that the applicant became visibly frustrated when attempting to complete simple household tasks and appeared to deteriorate before asking her to end both assessments prematurely. It is also significant that he refused her request to go to the grocery store, or even to go out for a coffee or a walk around the neighbourhood. The community outing component of the assessment is particularly relevant to the adaptation domain because it tests a person’s functional abilities “in an uncontrolled environment and in the presence of increased demands.”
64Other tests administered by Ms. Shum at the situational assessment more sharply reveal the applicant’s difficulty in completing work-like tasks under stress:
i. The Real-Life Mathematical Calculations test required the applicant to complete four simple math problems with a calculator. For example, the first problem required him to total monthly expenses and subtract them from a monthly income. The applicant has an undergraduate degree in mathematics. Nevertheless, it took him 31 minutes to complete the first three problems and he answered the first incorrectly. When he answered the fourth question incorrectly and was asked to try again, he “appeared to arbitrarily” write down a different number. When asked to break down how he calculated that number, he gave up.
ii. The Weekly Calendar Planning Activity required the applicant to enter 17 appointments into a calendar in accordance with a set of instructions. On reviewing the list of items, he told Ms. Shum “[t]his is beyond me; I cannot concentrate on this.” When he attempted the activity, he made errors such as scheduling appointments on the wrong days, scheduling activities for the wrong lengths of time or neglecting to put down start and end times, omitting to schedule certain appointments, and scheduling others more than once. He also did not notice that Saturday and Sunday were reversed on the calendar. When Ms. Shum encouraged him to correct some errors after 11 minutes, he said that he had done the activity to the best of his ability, described feeling overwhelmed by the amount of information, and said that completing the calendar had required considerable effort.
65Ms. Shum concluded that the applicant demonstrated limited abilities to tolerate stress with prolonged activities, particularly those that he perceived would require a lot of effort or energy. She concluded further that while he demonstrated adequate focus and concentration when his symptoms were not heightened, with the onset of pain or the anticipation of increasing symptoms or fatigue, he was observed to deteriorate, such that he withdrew from the task at hand and from the assessments themselves.
66Ms. Shum’s findings are consistent with the applicant’s account of his return to work at Norbord, where he found himself unable to cope with the stress imposed by his workload and his colleagues. Ms. Shum’s findings are also consistent with the applicant’s ability to work at GVT because that work was not stressful or demanding. It only required him to perform what he considered to be easy tasks from home for a few hours per day at most.
67I find that the applicant has a marked impairment in the adaptation domain of function. When Ms. Shum gently pressed him to complete simple tasks, he deteriorated and decompensated, making hasty, scattered efforts to complete them, or giving up on them altogether. When she asked him to attempt other tasks and go on a community outing, he refused outright. These impairments are reflected not just in his test performance, but in his unsuccessful attempt to return to Norbord and his minimal engagement in activities of daily living.
Conclusion
68I find that the applicant has marked impairments in the activities of daily living, social functioning, and adaptation domains of function. As he need only prove that he has marked impairments in three domains, I need not determine his level of impairment in the concentration, persistence, and pace domain of function.
69The respondent argues that it is not enough to find that the applicant has three marked impairments. It argues that criterion eight requires further that those marked impairments “preclude useful functioning,” and that this phrase takes its colour from a passage in the AMA Guides stating that “[m]arked limitation in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment.” Assuming without deciding that this is a requirement of criterion eight, I find that it is met in this case. I have found that the applicant does not have the capacity to perform complex tasks such as international travel without his wife’s support and assistance, and that he lives in a sheltered environment under her care.
70Whether the applicant sustained a catastrophic impairment is legal question, not a medical question: Liu v 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para 29. That said, I will briefly explain why I do not accept Dr. Jwely’s opinion that the applicant has moderate and not marked impairments:
i. Dr. Jwely rated the applicant’s level of impairment in the activities of daily living domain as moderate rather than marked because “he struggled a lot,” but not to the point that he gave up all his activities of daily living and was under minute-by-minute supervision such that he depended on someone to constantly do “everything and anything for him.” (Dr. Jwely qualified this statement slightly on cross-examination, saying that the AMA Guides use the phrase “almost all” rather than “all”). Regarding travel, he said that a person with a marked impairment would find it extremely difficult even to go to their back yard. When taken through the applicant’s travel photographs, he opined that the applicant had no impairment at all (class 1) or a mild impairment (class 2) at most. I find that this conception of marked impairment is more strict than what the AMA Guides provide, and arguably verges on the test for extreme impairment.
ii. Dr. Jwely rated the applicant’s level of impairment in the social functioning domain as moderate because he was “not unable to form any kind of relationship” and, in another formulation, because he was “not unable to form or maintain meaningful relationships.” That test cannot be found in the fourth edition of the AMA Guides. Dr. Jwely may have drawn it from the “severe impairment” test for the interpersonal relationships domain under the Psychiatric Impairment Rating Scale. That is one of the tests to be applied under the 6th edition of the AMA Guides when assessing catastrophic impairment under criterion seven. It does not apply here. Furthermore, the applicant described his interpersonal issues to Dr. Jwely and the other assessors in relatively mild terms, without confiding in them about his relationships with his wife and daughters. Dr. Jwely consequently understood his level of function to be higher than the evidence bore out at the hearing. On cross-examination, he agreed that difficulties with immediate family and divorce could “easily” be indicative of a marked impairment.
iii. Dr. Jwely testified that a person with a marked impairment in the adaptation domain “cannot tolerate any tiny stress.” As an example, he said that a person with a marked impairment would find it “very stressful” and “a big challenge” if a clinic moved to another floor of the building. Again, I find that this conception of marked impairment is more strict that what the AMA Guides provide, and arguably verges on the test for extreme impairment.
71I conclude that the applicant sustained a catastrophic impairment due to a mental or behavioural disorder within the meaning of s. 3.1(1)8 of the Schedule.
The applicant is partly entitled to the medical benefits and assessments in dispute
72The Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15. Section 25(1)5 provides that the insurer shall pay reasonable fees charged and incurred for preparing an application for a catastrophic impairment determination, including any assessment or examination necessary for that purpose. The onus is on the applicant to prove that he is entitled to the benefits and assessments in dispute.
The February 26, 2024 treatment plan (issue two)
73The February 26, 2024 treatment plan claims $5,226 for a catastrophic impairment assessment by a psychologist. The proposed services consist of $2,000 for the assessment itself, a further $3,000 for unspecified “documentation support activities,” $200 for the cost of preparing the treatment plan, and $26 in tax.
74The respondent initially denied the treatment plan, but later partially approved it in the amount of $2,226: $2,000 for the assessment, $200 for the treatment plan, and $26 for tax. It refused to pay for the $3,000 of “documentation support activities” on the grounds that $2,000 is the maximum amount payable for an assessment under s. 25 of the Schedule.
75In closing argument, the applicant said that the treatment plan was for both Dr. Belyakova’s and Dr. Wilderman’s assessments. In his submission, the full amount of the treatment plan ought to have been approved because both assessments were reasonable and necessary. However, the treatment plan does not provide for an assessment to be conducted by Dr. Wilderman. The only expense claimed for his services is the $200 fee for preparing the treatment plan.
76I find that the applicant is not entitled to $3,000 for the unapproved portion of the treatment plan. Section 25(5)(a) of the Schedule provides that an insurer shall not pay more than a total of $2,000 plus Harmonized Sales Tax in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. The applicant is not entitled to a further $3,000 for documentation support activities related to the assessment.
77I find that the applicant is entitled to a further $260 in HST. The $26 in tax approved by the respondent relates only to the $200 cost of the treatment plan. If the applicant is entitled to $2,000 for the cost of the assessment, I see so reason why he would not also be entitled to HST on that amount.
The January 22, 2024 treatment plan (issue three)
78The January 22, 2024 treatment plan claims $20,226 for five catastrophic impairment assessments. The proposed services consist of $2,000 for each of the assessments, a total of $12,000 for unspecified “documentation support activities” relating to the assessments, $200 for the cost of preparing the treatment plan, and $26 in tax.
79The respondent initially denied the treatment plan, but later partially approved it in the amount of $10,226: $2,000 for each of the five assessments, $200 for the treatment plan, and $26 for tax. It refused to pay the remaining $12,000 for documentation support activities because $2,000 is the maximum amount payable for an assessment.
80The analysis is the same as for the February 26, 2024 treatment plan.
81I find that the applicant is not entitled to $12,000 for the unapproved portion of the treatment plan. He is entitled to $2,000 plus HST per assessment. He is not entitled to further amounts for documentation support activities related to those assessments.
82I find that the applicant is entitled to $1,300 for HST on the $10,000 cost of the assessments. The $26 in tax approved by the respondent relates only to the $200 cost of the treatment plan. If the applicant is entitled to $10,000 for the cost of the assessments, I see no reason why he would not also be entitled to HST on that amount.
The June 24, 2024 disability certificate (issue four)
83I was provided essentially no information about the $200 cost of the June 24, 2024 disability certificate. It is unclear why the applicant submitted one more than four years after the accident. The respondent’s letter denying the expense makes only the cryptic statement “I cannot pay this expense because this recommendation was not approved.”
84I find that the applicant has not established that he is entitled to the cost of the disability certificate. Section 25(1)1 of the Schedule provides that an insurer shall pay reasonable fees charged for preparing a disability certificate if required under s. 21, 36, or 37. By necessary implication, an insurer is not required to pay fees charged for disability certificates it did not require under those provisions. As I have not been referred to any evidence showing that the respondent required the applicant to provide the disability certificate in question under s. 21, 36, or 37 of the Schedule, I find that he is not entitled to the $200 cost of preparing it.
The June 27, 2024 treatment plan (issue five)
85The June 27, 2024 treatment plan claims $4,590.74 for a variety of treatments and a $135.36 expense titled “[p]reparation, service.” The treatment plan uses the treatment providers’ hourly rates for a person determined to have sustained a catastrophic impairment. The respondent partially approved the treatments at the non-catastrophic impairment hourly rates. It denied the “preparation, service” expense on the grounds that preparation is properly included in the hourly rate for treatment and is not a freestanding expense.
86Section 15(2) of the Schedule provides that an insurer is not liable to pay medical benefits for expenses related to goods and services that exceed the maximum rate established under the Guidelines. The Professional Services Guideline (Superintendent’s Guideline No. 03/14) sets out the maximum hourly rates for health care professionals. It sets out different rates for insured persons who have and have not been determined to have sustained a catastrophic impairment. It provides that services at the catastrophic impairment rate are payable “whether such services are rendered before or after such determination is made.”
87As I have found that the applicant sustained a catastrophic impairment, I find that he is entitled to the treatments set out in the June 27, 2024 treatment plan at the catastrophic impairment maximum hourly rates.
88I find that the applicant is not entitled to the “preparation, service” expense. The applicant did not refer me to evidence regarding this expense or address it in his submissions. He has therefore not met his onus of proving that he is entitled to it.
89I conclude that the applicant is entitled to the full amount of the treatment plan less the amount already approved and the $135.36 “preparation, service” expense. That total comes to $1,157.38.
The applicant is not entitled to an award
90Section 10 of Regulation 664 provides that the Tribunal, in addition to awarding the benefits and interest to which a person is entitled under the Schedule, may award a lump sum if it finds that the insurer unreasonably withheld or delayed payments.
91On the first day of the hearing, the respondent raised the issue that the applicant had not provided particulars of the award claim. The Case Conference Report and Order required him to provide those particulars within 30 days of receiving the adjusters’ log notes. The applicant advised that he provided the particulars in a June 18, 2024 letter. I quote them verbatim:
When denying the physiotherapy treatments, the respondent failed to take in[to] consideration the nature and extent of the injuries sustained by the applicant (fractures to left fibular head, fracture of L4 vertebra and multiple ribs fractures).
The respondent did not consider the medical evidence that supported the entitlement to the benefits and relied on medical reports that ignored such medical evidence to the detriment of the applicant.
The respondent’s actions led to the significant delays of the applicant’s healing time and eventually caused a deterioration of the applicant’s physical and psychological health.
92In closing argument, the applicant submitted that the respondent unreasonably delayed payment of benefits in two ways:
i. It denied every treatment plan for physical treatment until he filed the Tribunal application, which caused his health to deteriorate over the intervening years; and
ii. It partially approved the January 22, 2024 treatment plan only one month before the start of the hearing, which did not provide him a meaningful opportunity to obtain the assessments it approved.
93The respondent objects to the award claim being considered because the particulars provided by the applicant are boiler-plate statements that do not provide sufficient notice of the case to meet. On the merits, it argues that it reasonably adjusted the applicant’s benefits based on the medical records available to it, and that it was open to the applicant to request an adjournment of the hearing after it partially approved the January 22, 2024 treatment plan.
94I find that the award claim based on the respondent’s delayed approval of physical treatment falls within the particulars set out in the June 18, 2024 letter. However, I find that the applicant has not established that the respondent’s delay was unreasonable.
95The pre-application treatment plans for physical treatment are dated April 27, 2021, September 13, 2022, and February 27, 2024. The respondent initially denied them on the basis of an insurer’s examination conducted by a physiatrist, who opined that further physical treatment was unnecessary. In the denial letters, it wrote that it had not received updated medical records showing a deterioration in the applicant’s condition. The March 12, 2024 letter asks that he provide his family doctor’s clinical notes and records from December 2020 to date. Mark Henry, the current adjuster, testified that he reconsidered the treatment plans when he was assigned to the applicant’s file in May 2024. Based on the information before him at that time, he decided to approve the treatment plans. He said that he was unable to pass judgment on the merit of the previous adjusters’ decisions to deny them.
96It is well-established that insurers are entitled to rely on the expert opinions of medical assessors, and that they must continually assess insured persons’ entitlement to benefits as they receive new information. Based on the evidence before me, that is what the respondent did in this case. It initially denied the treatment plans based on the opinion of an expert physiatrist, and later reconsidered them in light of new information. The fact that it changed its view does not necessarily imply that its original decisions were unreasonable at the time.
97I decline to consider the applicant’s claim for an award with respect to the January 22, 2024 treatment plan. That claim is completely outside the scope of the particulars he provided. He confirmed at the start of the hearing that he was relying only on those set out in the June 18, 2024 letter. It did not become clear that he sought an award with respect to the January 22, 2024 treatment plan until midway through his cross-examination of Mr. Henry.
98The purpose of requiring the applicant to provide particulars is to give the respondent notice of the case to meet. Notice is a basic element of procedural fairness. I recognize that the basis of the claim was an event that occurred after the deadline for serving particulars. Nevertheless, it was incumbent on the applicant to provide updated particulars when that claim crystallized. He declined to do so, even when the respondent broached the issue at the start of the hearing.
99I conclude that the applicant is not entitled to an award.
The applicant is entitled to interest
100The applicant is entitled to interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to costs
101Rule 19.1 provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.
102The applicant seeks costs for the respondent’s motion to use the social media posts at the hearing. He argues that its late service and filing of the documents was trial by ambush and that he had difficulty addressing them at the hearing. He opposed the motion for the same reasons. I considered those submissions and determined that it was appropriate to permit the respondent to use the documents at the hearing. I therefore do not conclude that seeking permission to use them was unreasonable, frivolous, vexatious, or an action taken in bad faith.
103The applicant also seeks costs on the grounds that the respondent did not partially approve the catastrophic impairment assessments in the January 22, 2024 treatment plan until only one month before the hearing. That is a matter of its conduct in adjusting the applicant’s accident benefits, and properly falls under his claim for an award rather than a claim for costs in this application. I have declined to consider that claim for an award.
ORDER
104The applicant sustained a catastrophic impairment.
105The applicant is entitled to medical benefits and assessments in the following amounts:
i. $260 for the February 26, 2024 treatment plan;
ii. $1,300 for the January 22, 2024 treatment plan; and
iii. $1,157.38 for the June 27, 2024 treatment plan.
106The applicant is not entitled to $200 for the cost of the June 24, 2024 disability certificate.
107The applicant is entitled to interest pursuant to s. 51 of the Schedule.
108The applicant is not entitled to an award under s. 10 of Regulation 664.
109The applicant is not entitled to costs.
Released: July 4, 2025
Christopher Evans
Adjudicator