Citation: Kerr-Knights v. Definity Insurance Company, 2025 ONLAT 24-009699/AABS

Licence Appeal Tribunal File Number: 24-009699/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:

Iyana Kerr-Knights

Applicant

and

Definity Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Applicant:

Aline Avanessy, Counsel

For the Respondent:

Angelo Sciacca, Counsel

Heard by Videoconference:

May 26-30, 2025

OVERVIEW

1Iyana Kerr-Knights, the applicant, was involved in an automobile accident on June 7, 2019, 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, Definity 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 the Schedule (Criterion 8)?

ii. Is the applicant entitled to an income replacement benefit in the amount of $226.53 per week from March 2, 2021 to date and ongoing?

iii. Is the applicant entitled to $25,990.00 for catastrophic assessment, proposed by Downsview Healthcare Inc. in a plan dated December 8, 2022?

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

3At the outset of the hearing, the applicant advised me that issues 3-13 and 15-19, as listed in the Case Conference Report and Order dated December 13, 2024, had been resolved.

RESULT

4I find that:

i. The applicant is designated catastrophically impaired under criterion 8.

ii. The applicant is not entitled to an IRB from March 2, 2021 to September 1, 2024.

iii. The applicant is entitled to an IRB from September 1, 2024 to date and ongoing, plus interest.

iv. The applicant is not entitled to the treatment plan for a CAT assessment dated December 8, 2022.

PROCEDURAL ISSUES

Applicant’s motion to exclude a respondent’s witness is denied

5On the third day of the hearing, the applicant brought a motion to exclude the testimony of Montana Mullane, occupational therapist, on the basis that her evidence was not relevant to an issue in dispute.

6Each party had performed two sets of CAT assessments in this case due to an alleged deterioration of the applicant’s condition between 2021 and 2023. The applicant filed a second application for CAT (“OCF-19”) on April 11, 2023, based on her second set of CAT assessments. Ms. Mullane’s occupational therapy in-home and situational assessment reports were part of the respondent’s first set of CAT Insurer’s Examinations (“IEs”). The reports were dated October 14, 2022.

7The applicant submits that Ms. Mullane’s reports are not relevant to the issue of CAT, as they were issued prior to the OCF-19 and, as a result, it is not proper to hear from her as an expert witness. The applicant further submits that the reason Ms. Mullane was on the witness list at the case conference was that the respondent had not yet completed its second set of CAT IEs, and it was assumed that Ms. Mullane would be performing the second set of occupational therapy assessments because she had done the first ones. The applicant submits that she will be prejudiced by Ms. Mullane’s testimony and there is no value for the Tribunal in hearing from the witness.

8The respondent submits that Ms. Mullane’s assessments were performed during a relevant time period as they are dated less than a year prior to the applicant’s second set of CAT reports. The respondent further submits that the applicant’s submissions may be relevant to the weight given to Ms. Mullane’s testimony, but they are not a valid basis for excluding her testimony altogether.

9Both parties tendered both their first and second set of CAT assessment reports as evidence at the hearing. Given that Ms. Mullane’s reports were before me, and the low bar for determining the admissibility of evidence due to relevance, I found it appropriate to hear her testimony. I invited the applicant to make closing submissions respecting the weight I should give to Ms. Mullane’s testimony.

ANALYSIS

The applicant is designated CAT under Criterion 8

10I find that the applicant has sustained a catastrophic impairment under Criterion 8.

11In order to be found catastrophically impaired, the applicant must demonstrate, on a balance of probabilities, that she sustained an accident-related impairment that is defined as catastrophic under the Schedule. Criterion 8 determinations under the Schedule use the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition (“AMA Guides”).

12The AMA Guides refer to four areas of function, which are: activities of daily living (“ADLs”); social functioning; concentration, persistence and pace (“CPP”); and adaptation.

13Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning in each of the four areas. The levels are explained in the following table:

Area of Functioning	Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
ADLs	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Social Functioning
CPP
Adaption

14For the Tribunal to find that the applicant has sustained a catastrophic impairment under Criterion 8, the applicant must show that, as a result of a mental or behavioural disorder, she has an extreme level of impairment in any one of the four areas of function or that she has a marked level of impairment in at least three of the four areas of function. The applicant has the onus of proving this on a balance of probabilities.

15The applicant submits that the accident caused her to sustain a marked impairment in three areas of function: social functioning, CPP and adaptation. The applicant does not submit that she sustained a marked impairment in the ADLs domain, nor does she submit that she sustained an extreme impairment in any of the four areas of function.

16The respondent submits that the accident did not cause the applicant to sustain a marked impairment in any of the four areas of function.

17For the reasons that follow, I find that the applicant is catastrophically impaired under Criterion 8, as she has proven, on a balance of probabilities, that she sustained a marked impairment in three out of four of the areas of function.

The applicant sustained a mental or behavioural disorder as a result of the accident

18Dr. Shahzad Shahmalak, psychiatrist, completed a psychiatric assessment of the applicant on March 22, 2023 in support of the applicant’s second OCF-19. Dr. Shahmalak diagnosed the applicant with the following psychiatric diagnoses as a result of the accident: Somatic Symptom Disorder with predominant pain; Specific Phobia, situational type (vehicular); Major Depressive Disorder, moderate to severe; and Post-Traumatic Stress Disorder.

19Dr. Velan Sivasubramanian, psychiatrist, completed an assessment of the applicant on January 29, 2025, at the request of the respondent. Dr. Sivasubramanian generally agreed with Dr. Shahmalak’s diagnoses, and that the applicant sustained them as a result of the accident.

20I am therefore satisfied that the applicant sustained a mental or behavioural disorder as a result of the accident. It will form the basis of my Criterion 8 analysis.

The applicant sustained a moderate impairment in the area of ADLs

21The applicant does not claim to have sustained a marked impairment in the area of ADL. Both Dr. Shahmalak and Dr. Sivasubramanian determined that the applicant sustained a moderate impairment in this sphere of functioning.

22I am persuaded by the assessments of both experts in this instance. I find that the applicant has sustained a moderate impairment in the area of ADLs.

The applicant sustained a marked impairment in the area of social functioning

23I find that the applicant sustained a marked impairment in the area of social functioning.

24The AMA Guides specify that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.

25The applicant submits that she sustained a marked impairment in the area of social functioning. Specifically, the applicant submits that she functioned at a very high level pre-accident and, while she attempted to return to her normal activities for a few years after the accident, she was ultimately unable to do so. She submits that her failed attempts to return to work, school and social activities resulted in a further deterioration in her mental health. In support, she relies on the psychiatric assessment report of Dr. Shahmalak; the occupational therapy assessment of Varun Madan, occupational therapist, dated March 7, 2023; the s. 44 occupational therapy report of Shalah Kara, occupational therapist, dated April 9, 2025; and her own testimony.

26The respondent submits that the applicant sustained, at most, a moderate impairment in the area of social functioning. The respondent relies on surveillance evidence and photographs and videos taken from social media, which show the applicant participating in various activities between the time of the accident and 2023. The activities documented during this period include: travel, participation in podcasts, attending a festival with her niece, modeling for family members, eating in a restaurant with friends and driving. The respondent also relies on the psychiatry assessment report of Dr. Sivasubramanian.

27The applicant testified that pre-accident she had a boyfriend and numerous friends, including one particularly close friend from childhood, she attended university and worked part-time as a lifeguard and swim instructor. She testified that after the accident, she tried to return to her pre-accident activities and she tried for years to retain her existing relationships. However, with the exception of her family members, the applicant testified that she no longer has any relationship with her friends, including her long-time best friend.

28The applicant testified that she was fired on two occasions when she attempted to return to work post-accident. She explained that she obtained jobs at two restaurants, but that she was fired shortly after being hired due to altercations with her manager or the individual training her. The applicant acknowledged during cross-examination that she had been fired on one occasion pre-accident, but she explained that she had been fired because she was accused of throwing out an item left behind by a customer. I accept the applicant’s testimony that altercations with management in employment situations started after the accident, and find that they were likely a result of the applicant’s mental or behavioural disorders.

29The respondent led evidence that the applicant had travelled to British Columbia, Prince Edward Island and Washington, D.C. since the accident, that she had a lengthy conversation with a friend for a podcast, that she lived with roommates in Hamilton for a period of time, that she maintained a romantic relationship for up to two years after the accident, and that she lived with her partner for a period of time. I accept the applicant’s submission that her participation in these activities is not inconsistent with Dr. Shahmalak’s opinion that the applicant sustained a marked impairment in social functioning. First, I find that the social media photographs and videos were posed and often scripted and did not provide an accurate portrayal of the applicant’s functioning or condition so I give them little weight. Second, the applicant does not dispute that she engaged in these activities in an attempt to return to normal during the first three years post-accident. She claims only that she was unable to continue to function at this level when she suffered a significant deterioration of condition in about 2023. Third, the medical evidence shows that the applicant’s condition deteriorated in about 2023 or 2024, culminating in her hospitalization for psychiatric reasons. As a result, I give less weight to the evidence showing the applicant’s engagement in social activities during the initial post-accident period.

30While the parties each tendered an earlier set of CAT assessment reports, their submissions focused on the second set of CAT assessments. The applicant acknowledged in her submissions that despite her earlier objection to the testimony of Ms. Mullane, her reports and testimony accurately captured the fact that the applicant continued to show some functioning in multiple spheres at that time. I give less weight to the first set of CAT assessments reports and Ms. Mullane’s testimony because the applicant’s functioning at that time is not in dispute.

31Dr. Shahmalak opined that the applicant suffered a marked impairment in the sphere of social functioning at the time of his assessment in March 2023. Dr. Sivasubramanian opined that the applicant suffered a moderate impairment in this sphere at the time of his assessment in January 2025. I prefer the opinion of Dr. Shahmalak over that of Dr. Sivasubramanian because it corresponds with the preponderance of evidence regarding the applicant’s post-accident functioning. In particular, I find that Dr. Shahmalak’s opinion corresponds with both the evidence that shows the applicant trying to return to her pre-accident activities, such as the social media videos and photographs, but also the occupational therapy reports from both Mr. Madan and Ms. Kara and the applicant’s testimony about her eventual inability to maintain friendships and to function in a work setting.

32Further, I find that in formulating his opinion, Dr. Sivasubramanian placed significant weight on the applicant’s functioning in the two to three years after the accident, when the applicant testified she was trying to engage in her normal activities despite her impairments. The applicant testified that during this period she anticipated and hoped that her condition would improve. However, ultimately she was unable to sustain any level of engagement with activities such as socializing with friends, attending school, and working. Dr. Shahmalak testified that he frequently sees patients push themselves to return to their normal activities during the initial period after an accident because they think their impairments are temporary. If they do not recover, however, they are eventually unable to sustain the effort and give up on engaging in the activities that they pushed themselves to engage in. The loss of hope that they will be able to return to these normal activities can further exacerbate the patient’s mental health struggles. Dr. Shahmalak testified that the applicant’s post-accident experience reflected this pattern, and that her level of functioning at the time of his assessment was not inconsistent with her earlier attempts to travel, socialize, return to school and return to work.

33Dr. Sivasubramanian also placed significant weight on the applicant’s report that she maintained a positive relationship with several family members at the time of his assessment. However, I give weight to Dr. Shahmalak’s opinion that, because the applicant was heavily dependent on her family members, the fact that she continued to maintain those relationships was a matter of self-preservation. The applicant testified that at the time of the hearing she lived with her mother and two of her siblings and she had no independent source of income. The applicant reported to Dr. Shahmalak that she feels guilt over her dependence on her family and her irritability towards them. I find, in these circumstances, that the applicant’s ability to maintain a relationship with her mother and siblings is less indicative of positive social functioning, and it is more indicative of the kind of self-preservation described by Dr. Shahmalak.

34Further, while Dr. Sivasubramanian quoted extensively from the occupational therapy report of Ms. Kara, his opinion appears to conflict with her observations of the applicant’s functioning at that time. Ms. Kara states in her report that, over the two days of testing, it was clear that socializing, maintaining relationships and even participating in the assessment were all major challenges to the applicant. Dr. Sivasubramanian dismissed Ms. Kara’s observations because they did not correspond with evidence of the applicant’s historic functioning.

35I find that the applicant has demonstrated that after the accident she has been fired twice and has been unable to maintain pre-accident relationships. She has become gradually more isolated since the accident and no longer seeks out or participates in social or group activities. I find that this is consistent with impairment levels that significantly impede useful functioning in this area. Therefore, I find that the applicant has proven, on a balance of probabilities, that she sustained a marked impairment in the area of social functioning.

The applicant sustained a marked impairment in the area of CPP

36I find that the applicant sustained a marked impairment in the area of CPP.

37The AMA Guides describe this domain as the ability to maintain focus and attention long enough to complete tasks in a work setting or in the context of activities of daily living. The time taken to complete tasks is a relevant consideration.

38The applicant submits that she sustained a marked impairment in the area of CPP. In support, she relies on the testimony and psychiatric assessment report of Dr. Shahmalak; the occupational therapy assessment of Mr. Madan; the s. 44 occupational therapy report of Shalah Kara; her own testimony; the testimony of her treating psychiatrist, Dr. Risiah Paramsothy; and the hospital records relating to her hospitalization for psychiatric reasons in 2024.

39The respondent submits that the applicant sustained, at most, a moderate impairment in the area of CPP. In support, it relies on the psychiatric report of Dr. Sivasubramanian; the applicant’s post-accident academic transcripts; emails showing the applicant requesting accommodations at McMaster University; and the pre-accident clinical notes and records (“CNRs”) of Dr. Ashraf Mikhail, the applicant’s family doctor.

40The applicant described herself before the accident as a highly motivated and active individual who worked part-time as a lifeguard and swim instructor while gaining admittance to, and successfully completing, her first year in a competitive neuroscience program at McMaster University. While the respondent directed me to evidence that the applicant reported post-concussion symptoms to Dr. Mikhail in the years leading up to the accident, and sought accommodations from her school due to an acquired brain injury, I find that she continued to function at a high level at the time of the accident.

41After the accident, she described emotional symptoms related to pain and trauma, which worsened with time. The applicant described her attempts to return to work and school. She testified about how her identity was tied to being a student and how she pursued that dream for several years after the accident, but finally had to acknowledge that she was unable to continue.

42The respondent directed me to the applicant’s transcript and submits that the applicant obtained a number of “A” grades in courses after the accident. The applicant acknowledges this point. However, she testified that she received accommodations from the University; she had to switch out of her competitive neuroscience program; she had to drop a number of more difficult courses that she attempted to take post-accident; and many of the courses she completed were electives and music courses that she took for their therapeutic value. The applicant testified that completing these courses was difficult for her to manage and continuing in school was not sustainable. She did not graduate.

43Mr. Madan reported that the applicant experienced some difficulties with the calculation assessment and trail-making assessment, which demonstrated a reduced ability to concentrate. Dr. Shahmalak considered the results of Mr. Madan’s assessment along with his own interview with the applicant, and he opined that she exhibited a marked impairment due to the emotional impact of stress and physical symptom escalation.

44Dr. Sivasubramanian’s report quotes extensively from the occupational therapy report of Ms. Kara, who described how the applicant both reported and demonstrated an inability to maintain focus, persistence and pace due to her physical, cognitive and emotional symptoms. Despite acknowledging that the applicant appeared to demonstrate impairments on the two days of testing with Ms. Kara, Dr. Sivasubramanian opined that the applicant sustained at most a moderate impairment in the area of CPP because she appears to have historically functioned better in the years immediately following the accident.

45I prefer the opinion of Dr. Shahmalak over that of Dr. Sivasubramanian because Dr. Shahmalak based his opinion on the applicant’s functional abilities at the time of his assessment. I find that Dr. Sivasubramanian’s focus on the applicant’s historical function does not take into account the possibility of a deterioration in condition and function, as reported by the applicant.

46Therefore, I find that the applicant has proven, on a balance of probabilities, that she sustained a marked impairment in the area of CPP.

The applicant sustained a marked impairment in the area of adaptation

47I find that the applicant sustained a marked impairment in the area of adaptation.

48The AMA Guides explain the area of adaptation, also described as deterioration or decompensation in work or work-like settings, as a repeated failure to adapt to stressful circumstances, which can result in withdrawal from the stressful situation. In a work environment, relevant considerations can include attendance, making decisions, scheduling, completing tasks and interacting with others.

49The applicant submits that she sustained a marked impairment in this area of functioning. She relies on the occupational therapy reports of Mr. Madan and Ms. Kara, the report and testimony of Dr. Shahmalak, and the report and testimony of Dr. Sivasubramanian.

50The respondent submits that, despite Dr. Sivasubramanian’s opinion that the applicant sustained a marked impairment in this area, there is evidence that the applicant’s failure to adapt to stress in a work setting pre-existed the accident and that she is more functional than she appears during her assessments. In support, it relies on the applicant’s acknowledgment that she was fired on one occasion prior to the accident, along with the surveillance evidence and various social media photographs.

51The applicant described her pre-accident self as working well under pressure. She was a competitive athlete and student. She worked part-time as a lifeguard and swimming instructor. The applicant testified that she was fired on one occasion prior to the accident. She explained that she was accused of throwing away an item that belonged to a customer, which she denied doing. She denied that the incident was similar to the post-accident incidents of dysregulation described by Dr. Shahmalak and the occupational therapists.

52Both Ms. Kara and Mr. Madan described how the applicant deteriorated during their testing, became withdrawn and declined to participate in tasks.

53Dr. Sivasubramanian and the applicant both testified about an incident that occurred in Dr. Sivasubramanian’s office when the applicant attended and, due to a scheduling conflict, Dr. Sivasubramanian was unable to meet with her. The applicant described that she felt frozen and panicked. She testified that she did not know how long she stayed in the office. She recalls being told by the office staff that they would call the police if she did not leave. She recalls finding herself on the side of the highway with no recollection of how she got there. Dr. Sivasubramanian testified that when the office staff told the applicant that he would not be able to see her that day, she refused to leave the office. Eventually the staff threatened to call the police, at which point she left.

54I find that the applicant demonstrated similar behaviour while she was giving testimony at the hearing. She exhibited a number of emotional outbursts, particularly after she had been under cross-examination for some time and on one occasion when she asked for a break and was not excused immediately because counsel started discussing a procedural issue.

55I find that the majority of the social media photographs were from 2019 to 2021. The respondent relies on one photograph from 2025, which shows the applicant modeling for a charity. The applicant testified that she was only able to participate in the photo shoot because she was not getting paid so she felt like she could leave when she no longer felt well enough to participate.

56I find that the social media and surveillance does not conflict with the applicant’s testimony that she tried for years to return to her pre-accident activities, but was ultimately unsuccessful. She testified at the hearing that in 2023, when the most recent surveillance was conducted, she was still making some attempts to return to pre-accident activities.

57Therefore, I find that the applicant has proven, on a balance of probabilities, that she sustained a marked impairment in the area of adaptation.

58The applicant has sustained a marked impairment in three of the four areas of function. Therefore, I find that she is catastrophically impaired under Criterion 8.

Applicant’s entitlement to an IRB

59To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

60Then, to receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

61The applicant testified that, at the time of the accident, she worked part-time as a lifeguard and swimming instructor while attending McMaster University in the neuroscience program.

62While the applicant attempted to complete this program, and then a less challenging degree, she did not graduate from university.

63The applicant testified that she attempted to return to work as a lifeguard and swimming instructor in August 2019, once her cast was removed. She had an assistant to help her with any lifting required during instruction of children. She testified that she did not feel safe working as a lifeguard given the symptoms she continued to experience. She was uncertain about whether she quit or was fired from that position and about when she stopped working. The documents indicate that she worked part-time until March 2020.

64The applicant made two other attempts to return to work, although she was unclear about the timing of these attempts. Both positions involved working in a restaurant. She testified that on both occasions she was fired before she completed her training, describing altercations that she had with her supervisors or trainers.

First 104 weeks post-accident

65I find that the applicant is not entitled to an IRB from March 2, 2021 to June 7, 2021, which is the end of the 104-week post-accident period.

66The applicant received an IRB shortly after the accident until she returned to work in August 2020. The applicant submits that she is entitled to an IRB from March 2, 2021, when she stopped working again, to date and ongoing. In support, she relies on her own testimony and the medical evidence generally. In particular, the applicant directed me to the March 2025 occupational therapy report of Ms. Kara.

67The respondent submits that the applicant is not entitled to an IRB for two reasons. First, the respondent submits that the applicant’s first OCF-3, dated February 6, 2020, indicates that the applicant has returned to work on modified duties. The applicant did not file a new OCF-3, stating that she met the test for an IRB, until November 30, 2021, which was after 104 weeks post-accident. Second, the respondent submits that the applicant stopped working in March 2020 because of a work shortage due to COVID-19, not because of her accident-related impairments. In support of this, the respondent relies on the IE reports of Dr. Raymond Zabieliauskas, physiatrist, dated February 9, 2021, and Dr. Amena Syed, psychologist, dated February 9, 2021, and the testimony of these two experts.

68The applicant testified about both her swim instruction shifts and her lifeguarding shifts. I find that the essential tasks of the applicant’s pre-accident job involved: maintaining focus and attention for extended periods of time; responding to emergency situations; maintaining swimming fitness and lifesaving training; interacting with children; lifting, bending and sitting.

69I find that the applicant’s first OCF-3 states that the applicant has returned to work on a modified basis, with an assistant to help with her swim classes. The applicant did not file a new OCF-3 until November 30, 2021. While the second OCF-3, completed by Calvin Leung, occupational therapist, indicates that the applicant sustained a substantial inability to perform the essential tasks of her employment as a result of and within 104 weeks of the accident, I give it less weight, because the applicant was not assessed by Mr. Leung within 104 weeks of the accident.

70While the applicant testified that she worked reduced hours and was eventually unable to continue working because of her accident-related impairments, her testimony is not supported by her employment file, pay stubs or Employment Insurance file, all of which indicate that she worked her typical part-time hours between August 2019 and February 2020. Her application for Employment Insurance also indicates that she stopped working in March 2020 due to a work shortage. The timing of her application for employment insurance coincides with widespread business closures due to COVID-19.

71In addition, the applicant’s testimony relating to her inability to work during the pre-104 week period focused on her post-concussion symptoms, such as a sensitivity to light and noise. I find that the applicant has not proven, on a balance of probabilities, that her post-concussion symptoms, including sensitivity to light and noise, were caused by the accident because the hospital and ambulance records indicate that she did not hit her head in the accident. Further, the applicant testified about a pre-accident concussion, and there are records that demonstrate that the applicant sought and received accommodations from her university due to an acquired brain injury prior to the accident. In addition, the records of Dr. Mikhail show that the applicant was complaining of headaches, which she attributed to her prior concussion, in the year before the accident.

72Dr. Syed opined that the applicant was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and assessed her has not having difficulties at a level that would preclude her from performing the essential tasks of her pre-accident employment. I find that Dr. Syed’s testimony was compelling and that she examined the applicant during the relevant period, just prior to the beginning of the period of entitlement claimed by the applicant. I accept Dr. Syed’s opinion that the applicant’s psychological injuries did not preclude her from performing the essential tasks of her pre-accident employment.

73Dr. Zabieliauskas opined that in the accident the applicant sustained strain injuries and contusions that involved the right neck, right upper extremity and right knee, in addition to a right fifth finger fracture. He assessed her as having no objectively quantifiable physical impairment or functional limitations that would prevent her from resuming her previous employment duties as a lifeguard and swimming instructor. I find that Dr. Zabieliauskas’ opinion was compelling and confirmed by the medical records that the strains, contusions and fracture sustained by the applicant in the accident had healed by this time.

74As a result of the above, I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to an IRB between March 2, 2021 and June 7, 2021.

Post 104-week period

75I find that the applicant is entitled to an IRB from September 1, 2024 to date and ongoing.

76The applicant submits that the totality of her impairments, including a traumatic brain injury (TBI) and resulting cognitive impairments, migraines, psychological impairments and chronic pain, and the resulting functional limitations together result in her complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. In support of this submission, the applicant relies on the occupational therapy report of Ms. Kara; the report and testimony of Dr. Shahmalak; her own testimony; and that of her treating psychiatrist, Dr. Paramsothy.

77The respondent submits that the applicant has not proven that she meets the post-104 week test for entitlement to an IRB, which is not the same as the test for a marked impairment in the functional area of adaptation. The respondent relies on the emails showing the applicant requesting accommodations at McMaster University before the accident, and the pre-accident CNRs of Dr. Mikhail.

78I find that she did not complete her university degree. Her employment experiences include lifeguarding and some limited experience in the food service industry. The applicant also testified about modeling for certain friends and family members who were either professional or serious amateur photographers and videographers. I find that the applicant’s lack of university degree and limited employment experience make her reasonably suited for any entry level positions that require only a high school education.

79The applicant did not direct me to compelling medical evidence that her post-concussive symptoms, including migraines, were caused by the accident. I give little weight to the results of the post-accident SPECT scan, which shows some abnormalities, given the applicant’s acknowledgment that she sustained a pre-accident concussion and the applicant’s reports of post-concussive symptoms to Dr. Mikhail in the year leading up to the accident. I find that the applicant has not proven that her TBI or post-concussive symptoms are caused by the accident.

80I have found that the applicant was catastrophically impaired as a result of the accident and that she sustained a marked impairment in the sphere of adaptation as a result of her accident-related psychological injuries, based on the opinions of Dr. Shahmalak and Dr. Sivasubramanian. However, neither of these experts opined that she sustained a complete inability to engage in any employment for which she was reasonably suited.

81Ms. Kara’s April 2025 report establishes that the applicant’s cognitive, physical and psychological impairments prevent her from functioning to a great extent, her report does not attribute causes to the applicant’s functional limitations. I find that her report confirms Dr. Sivasubramanian’s opinion.

82Dr. Paramsothy treated the applicant while she was hospitalized for two weeks, for psychiatric reasons, in September 2024. He continued to treat her after her release from hospital. He testified that the applicant has reported to him that she is unable to engage in any meaningful work or academic pursuit and that those reports are consistent with his observations of the applicant. The respondent submits that Dr. Paramsothy’s testimony should be given less weight as he is not an impartial expert, but rather is advocating for his client. However, I find that Dr. Paramsothy’s testimony is confirmed by the medical evidence relating to the 2024 and 2025 period, including the reports of Ms. Kara and Dr. Sivasubramanian. As a result, I do not agree with the respondent’s submission to discount Dr. Paramsothy’s testimony.

83The applicant testified about being fired on two occasions, which I find are related to her accident-related psychological impairments. I find that the applicant exhibited emotional outbursts during the hearing, similar to those she testified to. I find that these behaviours make it unlikely that the applicant will be able to maintain employment in an entry level position in any field. In addition to the inability to regulate her emotions, the applicant testified about how her psychological impairments cause extreme exhaustion and prevent her from completing tasks.

84I find that the applicant’s testimony was vague with respect to the timing of the deterioration of her condition. If find that the applicant has not directed me to evidence of a deterioration of her condition starting on June 8, 2021. I find that the evidence demonstrates, on a balance of probabilities, that the applicant’s psychological impairments had deteriorated significantly by the time she was hospitalized in September 2024.

85As a result of the above factors, I find that the applicant has proven, on a balance of probabilities, that, as of September 1, 2024, her accident-related injuries resulted in her complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She is entitled to an IRB as of September 1, 2024.

The applicant is not entitled to the treatment plan for the second CAT assessment

86I find that the applicant is not entitled to the treatment plan, dated December 8, 2022, for the CAT assessment proposed by Downsview Healthcare Inc.

87Section 25(1) 5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. The applicant bears the onus of proving on a balance of probabilities that each item in a treatment plan is reasonable and necessary for the purpose of applying for a CAT determination under s. 45. The treatment plan proposed an orthopedic assessment and report, a neurological assessment and report, a psychiatry assessment and report and occupational therapy in-home and situational assessments and reports. The total cost proposed was $25,990.00. The goal of the treatment plan was to perform a multi-disciplinary CAT assessment of the applicant.

88The respondent submits that it funded a plan for a CAT assessment in 2021 and that the second CAT assessment was redundant. The respondent submits that there was no evidence of a deterioration in the applicant’s condition between 2021 and December 8, 2022, when the disputed treatment plan was submitted.

89The applicant submits that the second CAT assessment, which was done under a new OCF-19, was necessary because of the deterioration in the applicant’s condition between 2021 (when her first CAT assessment was performed) and the time of this treatment plan. While the applicant submits there is clinical evidence of her deteriorated condition, she does not refer me to any specific evidence. The applicant further submits that the fact that the respondent obtained a second set of CAT assessments is indicative of a change in her condition.

90While I find that the applicant’s hospitalization for her psychological condition in 2024 and Ms. Kara’s report in 2025 show a significant decline in the applicant’s condition, the relevant time frame for determining entitlement to a treatment plan is the time the treatment plan was submitted. I therefore give less weight to the evidence of hospitalization and to Ms. Kara’s report.

91Similarly, the respondent obtained its second set of CAT assessments in 2025, after the applicant’s hospitalization. I find that the fact that the respondent decided to obtain a second set of CAT assessments in 2025 is not indicative of a deterioration of the applicant’s condition in late 2022 or early 2023.

92I find that the second CAT assessment itself, on its face, does not demonstrate the deterioration in her psychological condition that the applicant submits existed at the time. The first CAT assessment provisionally assessed the applicant with a marked impairment in 3 out of 4 areas of function. The second CAT assessment assessed the applicant with a marked impairment in 3 out of 4 areas of function. The provisional assessment in the first CAT assessment was due to concerns that the psychological assessor had as a result of validity test results. These validity issues were resolved in the second CAT assessment.

93As a result, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for a second CAT assessment was reasonable and necessary.

Interest

94Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the overdue IRB payments from September 1, 2024.

ORDER

95I find:

i. The applicant is designated catastrophically impaired under criterion 8.

ii. The applicant is not entitled to an IRB from March 2, 2021 to September 1, 2024.

iii. The applicant is entitled to an IRB from September 1, 2024 to date and ongoing, plus interest.

iv. The applicant is not entitled to the treatment plan for a CAT assessment dated December 8, 2022.