Licence Appeal Tribunal File Number: 24-007719/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:
Chrysanthus Paranawithana
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATORS:
Nathan Prince, Adjudicator Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Savannah Chorney, Counsel Melissa Sidhu, Counsel
For the Respondent:
Eric B. Heath, Counsel
Interpreters:
Iynul Hadhi and Naga Ramalingam (Sinhala language)
HEARD by videoconference:
May 26-30, 2025
OVERVIEW
1Chrysanthus Paranawithana, the applicant, was involved in an automobile accident on August 3, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the Schedule). The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal for resolution of the dispute.
2Specifically, the respondent denied that the applicant’s accident-related impairments meet the definition of catastrophic impairment (CAT). If it is determined that he is CAT, the applicant is entitled to the extended tier of benefits that accompanies this designation. The applicant is also seeking attendant care benefits, housekeeping and home maintenance benefits, several treatment plans, funding for a Disability Certificate, an award, and interest.
ISSUES
3The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from August 3, 2018 and ongoing?
iii. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from August 3, 2018 to ongoing?
iv. Is the applicant entitled to the following treatment plans/OCF-18s (plans) proposed by Scarborough Rehabilitation Clinic:
a) $648.48 ($1,896.30 less $1,247.81 approved) for physiotherapy services proposed in a plan dated June 4, 2021;
b) $7,133.96 for occupational therapy services proposed in a plan dated June 18, 2021;
c) $3,416.68 for psychological services proposed in a plan dated November 26, 2021;
d) $2,644.16 for chiropractic services proposed in a plan dated November 15, 2023; and
e) $2,200.00 for a psychological assessment proposed in a plan dated June 4, 2021?
v. Is the applicant entitled to $4,000.00 ($6,200.00 less $2,200.00 approved) for a catastrophic psychological assessment proposed by Verity Medical in a plan dated June 8, 2023?
vi. Is the applicant entitled to $200.00 for the cost of a Disability Certificate (OCF-3) in a plan dated August 23, 2023?
vii. Is the applicant entitled to $2,000.00 for a catastrophic assessment executive summary proposed in a plan dated October 20, 2023?
viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
4At the outset of the hearing, the applicant withdrew his claim for the costs of catastrophic assessments in the amount of $22,226.00.
RESULT
5We find the applicant has sustained a catastrophic impairment under Criterion 7, as defined in section 3.1(1)7 of the Schedule.
6The applicant is entitled to attendant care benefits upon proof that the benefit has been incurred, however, the respondent is not required to provide payment of these benefits within this application.
7The applicant is entitled to housekeeping and home maintenance benefits upon proof that the benefit has been incurred, however, the respondent is not required to provide payment of these benefits within this application.
8The applicant is not entitled to the medical benefits in dispute.
9The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
Applicant’s motion to file his Supplementary Book of Authorities
10The applicant requests that his Supplementary Book of Authorities be accepted and considered for this hearing. He submits that it contains four additional caselaw decisions, and that it was served by email to respondent’s counsel the evening prior to the commencement of the hearing. The respondent does not object to its filing as long as it has the opportunity to file a responsive Supplementary Book of Authorities. The respondent confirmed that it would file its additional authorities with sufficient time for the applicant to review prior to closing submissions.
11The applicant’s motion is granted. The parties consent to each filing additional authorities, and the respondent has agreed to file its Supplementary Book of Authorities within a reasonable time prior to closing submissions. The filing of the Supplementary Book of Authorities prior to closing submissions in this manner will not prejudice either party. I note that the applicant only referenced one of the supplementary authorities in his submissions.
Applicant’s motion to exclude the respondent’s Supplementary Book of Authorities
12The applicant submits that the respondent’s Supplementary Book of Authorities was served on the last day of the hearing, and not within a reasonable time frame as the respondent had advised on the first day of the hearing. The applicant recognized that the parties had agreed to each filing their supplemental authorities, but here, it was not done in an appropriate time, and at first glance, it does not appear to be in response to the additional cases he submitted.
13The respondent submits that the parties had agreed to accept each other’s additional authorities and that there was no attempt to ambush the applicant. The additional authorities are in response to the issues in dispute and, as it extended the courtesy to the applicant earlier in the week, the same should be done here. Its supplemental authorities should be accepted.
14The applicant’s motion was granted during the hearing. The respondent’s Supplemental Book of Authorities will not be considered. Filing these authorities in the afternoon on the final day of the hearing and shortly before closing submissions, is procedurally unfair as the applicant will not have time to review or respond to them.
BACKGROUND
15The applicant was born in Sri Lanka and immigrated to Canada in 1990 as a student of martial arts (currently a 3rd degree black belt), sponsored by his martial arts master. He has since received his Canadian citizenship. At the time of the subject accident on August 3, 2018, the applicant had been laid off from his job and was in the process of seeking new employment. The applicant testified and reported to various assessors that prior to the accident, he was independent in all activities of daily living. He enjoyed martial arts, coaching soccer and other physical activities. He liked socializing with friends, and he was in a long-term relationship which terminated after the accident.
16On August 3, 2018, the applicant was driving his car when the vehicle travelling in front of him came to a sudden stop. The applicant was unable to avoid a collision and subsequently struck the other vehicle on the rear passenger side. Police and paramedics attended the scene. The applicant declined to be transferred to the hospital. He attended his family physician on August 8, 2018, with complaints of pains throughout his body, particularly involving his neck, back and head. He was prescribed analgesic medications and was referred to a physiotherapy facility.
17Pursuant to the Disability Certificate (OCF-3) dated September 7, 2018, the applicant’s injuries included: radiculopathy; sprain and strain of the cervical spine, thoracic spine, lumbar spine, sacroiliac joint, shoulder joint, elbow, wrist, hip, ankle, other and unspecified parts of the knee, malaise and fatigue, headaches, and nightmares. The applicant does not recall if he lost consciousness.
ANALYSIS
Has the applicant sustained a CAT impairment as defined by the Schedule?
18The applicant seeks a CAT determination under Criteria 7 and 8 as a result of his accident-related impairments. The applicant bears the burden of proof. Based on the evidence provided and the testimony of all witnesses, the applicant has persuaded the Tribunal, on a balance of probabilities, that he sustained a CAT impairment based on Criterion 7.
ANALYSIS
Has the applicant sustained a CAT impairment as defined by the Schedule?
Criterion 7
19To qualify under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% Whole Person Impairment (WPI) threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 6th edition, 2008, and is combined with the physical WPI rating from the American Medical Association’s Guides, 4th edition, 1993, using the Combined Values Table. An impairment percentage derived by means of the Guides is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.
20The applicant relies on the multi-disciplinary CAT reports of Verity Medical Assessments in which he was assessed by Dr. West, orthopaedic surgeon, Dr. Majl, neurologist, Dr. Shahmalak, psychiatrist, and Zainab Bukhari, occupational therapist. Dr. Blitzer, physiatrist, undertook the orthopaedic assessment as well as the executive summary. Dr. Blitzer concluded that the applicant sustained a combined WPI rating of 61% and therefore meets the CAT threshold.
21The applicant submits his non-CAT limits are exhausted and that a decision on this matter will be primarily dependent on a determination of his functionality as this point is mainly where the parties disagree. He argues that the CAT assessors from both sides are close in opinion, and he argues that the opinions of his CAT assessors should be preferred where they diverge. The applicant submits that the respondent’s expert did not follow the methodology established in the Guides, as he failed to rate all three segments of the spine when rating the musculoskeletal system and ignored the applicant’s potential radiculopathy. Regarding the rating for headaches, the applicant submits that his assessor’s rating provides a more fulsome analysis.
22The respondent relies on the multidisciplinary CAT assessment reports of AssessMed in which he was assessed by Dr. Angel, neurologist, Dr. Karabatsos, orthopaedic surgeon, Dr. Sivasubramanian, psychiatrist, and Boris Potoyants, occupational therapist. Dr. Karabatsos also prepared the executive summary and concluded that the combined WPI rating under Criterion 7 is 29%.
23The respondent submits that the applicant is largely functioning and relies on its surveillance evidence to demonstrate this point. Further, it notes that the applicant suffers from a host of pre-existing impairments (such as headaches and upper back pain) that explain his presentation. Regarding the Criterion 7 evidence put forward by the applicant, the respondent submits that there is no evidence of a brain injury, and Dr. Blitzer’s rating for sleep or cognitive impairments should be discounted. In addition, there was no electrodiagnostic testing to confirm the existence of radiculopathy. The applicant also submits that Dr. Blitzer did not personally see the applicant at the time of his 2023 report, and he instead relied on a report of Dr. Majl which did not appear to be prepared in the context of CAT. Finally, the respondent raises issues with the applicant’s credibility and his self-reports of his functionality.
24The chart below provides a summary of both parties’ assessors’ ratings and the Tribunal’s findings regarding Criterion 7. The rationale for our findings will follow.
| Impairment | Applicant’s Rating | Respondent’s Rating | Tribunal’s Finding |
|---|---|---|---|
| Musculoskeletal system Cervicothoracic spine Thoracolumbar spine Lumbosacral spine |
19% 5% 5% 10% |
10% 5% 5% |
19% |
| Upper extremities | 0 | 0 | 0 |
| Lower extremities | 0 | 0 | 0 |
| Headaches | 17% | 3% | 17% |
| Sleep disorder and associated fatigue | 7% | Not addressed | 0 |
| Skin | Not addressed | 0 | 0 |
| Cognitive mental status | 7% | Not addressed | 0 |
| Urological / Incontinence | 0 | Not addressed | 0 |
| Pain | Not addressed | 0 | 0 |
| Combined Physical Impairment | 44% | 16% | 35% |
| Mental and behavioural rating | 30% | 15% | 30% |
| Combined Physical and Mental and Behavioural Impairment | 61% | 29% | 55% |
Musculoskeletal system
25Both, Dr. Blitzer and Dr. Karabatsos, provided an impairment rating for the applicant’s musculoskeletal system based on their respective orthopaedic assessments. Dr. Blitzer, however, assigned ratings to three separate impairment ratings for the spine (the cervicothoracic, thoracolumbar and lumbosacral segments), whereas Dr. Karabatsos rated only two sections, being the cervicothoracic and lumbosacral segments. Both experts agreed on a rating of 5% for the cervicothoracic spine. The discrepancies in their reports pertain to the ratings (or lack thereof) for the thoracolumbar and lumbosacral spine.
26We prefer the approach of Dr. Blitzer as it is more in line with the Guides (4th edition). Chapter 3 of the Guides provide that, to determine a rating for the musculoskeletal system, an assessment and determination should be provided for all three segments of the spine (cervicothoracic, lumbosacral and thoracolumbar). Dr. Karabatsos’ report combines the ratings for the lumbosacral and thoracolumbar segments into one rating – whether done inadvertently or otherwise. Dr. Karabatsos did not point to any reference in the Guides to substantiate this approach.
27When questioned about his decision to rate two sections of the spine, Dr. Karabatsos explained the applicant indicated to him that he was experiencing pain in two regions: his neck and his back. He therefore assigned ratings for two categories. He added that he was not certain to which area the applicant was pointing when describing his pain as it was in an area where the thoracolumbar segment and the lumbosacral segment meet. He acknowledged that he used the terms thoracolumbar and lumbosacral interchangeably in his report, and he opined that a rating of 5% for the lumbosacral spine was adequate. He stated that this rating was very generous considering he did not make a subtraction for any pre-existing impairment. Based on his understanding of the Guides and his assessment of the applicant, Dr. Karabatsos combined the rating for both the thoracolumbar and lumbosacral segments and rated the impairment at 5%.
28Dr. Karabatsos’ CAT executive summary report states:
i. The Orthopaedic assessment determined that [the applicant] did not sustain a structural injury to his back as a result of the accident.
ii. The AMA Guides applies an impairment rating to this condition using the LumboSacral Spine DRE rating method (pages 101-103). The assessment of [the applicant’s] Lumbosacral spine identified the following findings relevant to the DRE rating methodology:
a. No fractures;
b. No instability;
c. No spinal cord injury;
d. No radiculopathy;
e. Some decreased range of motion
iii. In accordance with the AMA Guides, the above findings correspond to a DRE Thoracolumbar Category II impairment at 5% WPI (pages 101-103).
29Regarding the lumbosacral segment rating of 10% by Dr. Blitzer (versus Dr. Karabatsos’ rating of 5%), Dr. Blitzer explains that the 10% rating is based on the Guides’ DRE III rating as he found there was a possibility of radiculopathy reported by the applicant. In contrast, Dr. Karabatsos testified that he provided a rating of 5% even though he found that the applicant’s complaints of radiculopathy date from before the accident.
30Clinical notes and records (CNRs) of the applicant’s family physician were entered into evidence at the hearing. The respondent pointed to, in particular, a CNR of March 22, 2017 (prior to the accident), where the applicant attended at his family physician and complained of “low back pain, with radiation of pain down R side down to the ankle level” and submitted that the applicant’s radiculopathy pre-existed the accident, and therefore, should not be considered in the WPI rating as testified by Dr. Karabatsos.
31We are not persuaded that Dr. Karabatsos’ 5% rating considered complaints of radiculopathy made before the accident. At no point in Dr. Karabatsos’ report does he address the applicant’s pre-existing radiculopathy. The assessor’s rating is based on the Section 44 Catastrophic Orthopaedic Surgery Assessment Report (dated March 28, 2024) which he authored and in which he found that the applicant had “no radiculopathy”.
32There are discrepancies in the self-reporting the applicant provided to the various assessors regarding the radiculopathy, as well as other impairments and facts in this matter. This can be explained, in part, by the applicant’s limited ability to understand and communicate in English. We do not find that the applicant intentionally meant to mislead any assessors and do not question his credibility in this regard. We are assisted by the numerous reports and other information tendered into evidence at the hearing to best resolve these discrepancies.
33We accept the respondent’s evidence that there were complaints of pain and radiculopathy prior to the accident, however, we find that the accident exacerbated these impairments and hindered the applicant’s functionality. At the hearing, the applicant testified through an interpreter that he complained of back pain in the past (which he described as a natural part of ageing), but that these pains were addressed by his health practitioners and were not present at the time of the accident. The evidence before the Tribunal supports that after the accident, the applicant’s pain, including his back pain and pre-existing radiculopathy, limited his ability to perform his activities of daily living, affected his sleep, and affected his desire to interact socially. These were all activities he performed independently prior to the accident. A further discussion of the applicant’s alleged pre-existing impairments is included below.
34We therefore accept Dr. Blitzer’s 10% rating for the lumbosacral segment, and his rating of 19% WPI as the total musculoskeletal system impairment. As both experts assigned a rating of 5% for the cervicothoracic segment of the spine and provided their analysis, we also accept this rating.
Headaches
35We find that the rating of 17% WPI assigned by Dr. Blitzer is better supported by the evidence and that his analysis is in alignment with the Guides (4th edition). We assign less weight to Dr. Karabatsos’ opinion of 3% WPI.
36Dr. Blitzer’s evidence is that he reviewed the report of Dr. Majl, neurologist, who found that the applicant suffers post-traumatic migraine headaches. Dr. Majl administered the HIT-6 Headache Impact Test and found that the applicant’s headaches are having a severe impact on his life. Based on the migraine headache diagnosis, Dr. Blitzer provided an analysis and explanation for his rating using the Guides. Dr. Blitzer concluded that the applicant’s headaches result in a severe impact on his life, assigns them to the trigeminal nerve (for migraines) and adopts a conservative approach by applying a rating in the lower range of the middle category of impact using the Guides.
37In contrast, Dr. Karabatsos based his rating of 3% WPI solely on Dr. Angel’s neurology report, in which Dr. Angel found:
Some reports have commented on cognitive changes after the motor vehicle accident. I did not assess his cognition but based on the nature of his headaches, I believe they are whiplash medicated and not due to a primary brain injury. His diagnosis is that of post whiplash chronic migraine complicated by a medication overuse. I would assign a WPI 3% for his headaches and 3% for medication overuse for a total of WPI 6%.
38In his executive summary, Dr. Karabatsos did not provide further comment of Dr. Angel’s finding of whiplash chronic migraine or of his process for confirming Dr. Angel’s 3% rating. In his testimony, Dr. Angel stated that the Guides do not provide a rating for migraine headaches but he opined that an individual with migraine headaches should be rated and therefore, he provided the 3% WPI. He does not elaborate on the severity of the headaches, the impact on the applicant’s life, nor does he substantiate the 3% rating in reference to the Guides. Dr. Karabatsos also testified that the Guides do not really provide ratings for headaches but since Dr. Angel provided 3%, he assigned same.
39Although Dr. Blitzer also testified that the Guides do not actually provide a way to turn headaches into a WPI rating, he noted that the Guides advise assessors to go to the specific organ system (which he associated with the trigeminal nerve). Dr. Blitzer explained that by using the pain intensity grid provided in the Guides (p. 145), he concluded a rating of 17% based on Dr. Majl’s report and the applicant’s reports of daily significant headaches. As Dr. Blitzer substantiated his finding through a proper use of the Guides, we accept his approach over that of Dr. Angel’s and Dr. Karabatsos’ approach.
40Regarding the respondent’s argument that Dr. Majl’s neurological report did not appear to be prepared in the context of CAT, we note that, although the report does not speak to CAT specifically, it provides an independent assessment of the applicant from a neurological perspective. It was also prepared within the timeframe of the other CAT assessments (July and August 2023). We find that Dr. Majl’s findings are of assistance in the analysis of a determination of CAT from a neurological perspective.
Sleep disorder and associated fatigue
41Dr. Blitzer assigned a rating of 7% WPI for the applicant’s sleep disorder and associated fatigue. Dr. Karabatsos did not assign a rating and testified that to do so would require a documented brain injury and/or testing to see if there is a specific sleep disorder. Dr. Karabatsos also raised concerns with duplication should a rating be provided, and he noted that ratings should not be based on symptoms.
42We agree with Dr. Karabatsos. Dr. Blitzer relies on Chapter 4 (The Nervous System) and Table 6 found at page 143 of the Guides (4th edition) for his rating. We do not agree with Dr. Blitzer’s interpretation of this section. The Guides state that:
[T]he emphasis of this chapter is on deficits or impairments that may be identified during the neurologic evaluation and demonstrated by standard clinical techniques. […] Nevertheless, before evaluating and estimating the extent of an impairment, the physician should attempt to establish an accurate diagnosis. (Guides at p.139).
43Dr. Majl’s neurology report, relied on by Dr. Blitzer, concludes that those with post traumatic headaches often have concurrent medical and psychological conditions that can perpetuate or exacerbate headaches, such as sleep disorders. In this sense, the applicant’s sleep disorder and fatigue could perpetuate or exacerbate the applicant’s headaches and would have been considered in Dr. Blitzer’s rating for headaches (above). We therefore find that a separate rating for the sleep disorder would be duplicative.
44In addition, Dr. Majl’s neurology report does not provide for a diagnosis, nor was there any testing to determine the cause of the applicant’s sleep disorder, a requirement stipulated in the Guides. In his report, Dr. Blitzer notes that a sleep disorder was reported by the neurologist, orthopaedic surgeon, psychiatrist and occupational therapist, and he relies on the diagnosis of the occupational therapist who found the applicant suffered insomnia and chronic fatigue. Although diagnosed, we find that the occupational therapist’s diagnoses fall outside of her realm of expertise, and again, Dr. Majl did not provide for a diagnosis in his report.
45For these reasons, we do not agree with Dr. Blitzer’s rating of 7% WPI for sleep disorder and associated fatigue.
Cognitive mental status
46Dr. Blitzer assigned a rating of 7% WPI for cognitive mental status noting that the neurology assessment (as well as the psychiatry and occupational therapy reports) reported difficulty with the applicant’s memory, concentration, and ability to focus. He concludes that Dr. Majl diagnosed the applicant with a mild closed head injury and post-concussive symptoms. In coming to the 7% rating, Dr. Blitzer’s report notes that he relied on Table 2 in Chapter 4 of the Guides (4th edition).
47Dr. Karabatsos did not suggest a rating for this impairment and testified that nowhere in the medical documentation was there any indication of a significant brain injury. He added that Chapter 4 of the Guides (The Nervous System) states that testing is required if a brain injury is opined, and in his opinion, a neuropsychiatric evaluation was not appropriate in this case.
48As discussed in the Tribunal’s analysis for headaches above, before rating an impairment subject to Chapter 4 of the Guides, an attempt to establish an accurate diagnosis is required. Although Dr. Blitzer’s evidence suggests that Dr. Majl, neurologist, diagnosed the applicant with “mild closed head injury and post-concussive symptoms”, the Tribunal is not convinced that this is a proper diagnosis. Instead, it appears that Dr. Majl is referring more to a description of a medical condition and its symptoms. There was no conclusive evidence presented at the hearing to suggest that the applicant suffers from a brain injury, and there is no evidence that any testing was performed to conclude same. This is supported by Dr. Karabatsos’ testimony which relied on Dr. Angel’s neurological assessment. Dr. Angel noted that no treating practitioners or family doctor noted concern with a brain injury. We agree with Dr. Krabatsos’s testimony that no treating practitioner noted a brain injury and we have not been directed to evidence of a brain injury.
49In any event, we find that the inclusion of this rating by Dr. Blitzer creates a duplication to what was already considered and rated by Dr. Shahmalak, psychiatrist, in his mental and behavioural rating (discussed below). Dr. Blitzer himself testified (and noted in his report) that the 7% rating is based on his use of Table 2 of the Guides (4th edition). Table 2 refers specifically to “Mental Status Impairments” to which Dr. Shahmalak reviews, comments and rates in his analysis of the applicant’s mental and behavioural impairments.
50We therefore find that to include a rating for cognitive mental status would cause a duplication as it would have been considered and included in the rating assigned for mental and behavioural impairments below. We do not accept this finding from Dr. Blitzer.
Medication / Treatment
51Both experts assign a WPI rating of 3% for medication / treatment.
52In his report, Dr. Blitzer notes that the applicant received significant treatment and assistance (physiotherapy, psychological, occupational therapy and assistance with completing his activities of daily living). He explains his analysis in determining the 3% rating using the Guides (4th edition). Dr. Karabatsos also assigned a 3% rating for medication / treatment based on the neurology report (discussed above under headaches). Although he does not provide a full analysis of his finding for a 3% rating, as there is agreement between the experts, we accept this rating.
Mental and behavioural impairment
53To obtain the WPI rating under Chapter 14 of the 6th edition of the Guides, three scales are administered by assessors to determine a person’s score which include: the Brief Psychiatric Rating Scale (BPRS), the Global Assessment of Function (GAF) and the Psychiatric Impairment Rating Scale (PIRS). The median score is then taken from the three scales and represents a person’s total WPI from a psychological perspective.
54The applicant relies on the assessment of Dr. Shahmalak, psychiatrist, who diagnosed him with Somatic Symptom Disorder (with predominant pain persistent), Major Depressive Disorder (severe; rule out psychotic symptoms) and Post-Traumatic Stress Disorder (PTSD). Dr. Shahmalak administered the three scales outlined in Chapter 14, which, when converted into a total WPI, equalled 30%.
55The respondent relies on the assessment of Dr. Sivasubramanian, psychiatrist, who also diagnosed the applicant with Somatic Symptom Disorder (with predominant pain) and Major Depressive Disorder (but with moderate severity with anxious distress). Dr. Sivasubramanian, however, did not agree with a diagnosis of PTSD. Instead, he diagnosed the applicant with Other Specified Trauma and Stressor-Related Disorder (incorporating elements of PTSD and Specific Phobia) but with minimal impairment and no significant avoidance. His scores on the psychiatric scales, when converted into a WPI, equalled 15%.
56We note that both experts’ diagnoses were similar. However, the experts differed on the severity of the Major Depressive Disorder and the applicant’s expert diagnosed him with PTSD, while the respondent’s expert diagnosed him with Other Specified Trauma and Stressor-Related Disorder. At the hearing, Dr. Sivasubramanian testified that, even if he had found that the applicant suffered from PTSD, his ratings would likely not change. In this sense, the difference in diagnosis does not explain the divergence in the ratings assigned by each expert.
57The results stemming from the administration of the three scales are as follows:
| Assessor | GAF | PIRS | BPRS | WPI % |
|---|---|---|---|---|
| Dr. Shahmalak | 15% | 30% | 30% | 30% |
| Dr. Sivasubramanian | 15% | 15% | 30% | 15% |
58Both experts agree that after administering the GAF scale, the applicant should be assigned a rating of 15%. Both experts also agree that the applicant should be assigned a rating of 30% for the BPRS. The difference in the total rating for mental and behavioural impairment falls therefore to the results of the PIRS scale where Dr. Shahmalak assigned a rating of 30% and Dr. Sivasubramanian assigned 15%.
59Dr. Sivasubramanian testified that he reviewed Dr. Shahmalak’s report and concluded that both experts more or less agreed on the applicant’s diagnoses. There was also not much difference in their observations. However, Dr. Sivasubramanian testified that he reduced the applicant’s PIRS score because he opined the applicant’s pain was primarily caused by his physical impairments rather than his mental impairments. As per the Guides, he found that a rating should not consider impairment in functioning due to physical or environmental limitations. He added that he found the applicant was not being adequately treated with psychiatric medication which he opined could improve his symptoms but the expert did not expand on this opinion or how psychiatric medication could improve the applicant’s presentation.
60Having reviewed the experts’ reports and considering the experts’ testimonies, we find that the opinion of Dr. Shahmalak is more in line with the medical evidence. Both psychiatrists’ diagnoses and observations were similar, however Dr. Sivasubramian testified that he reduced his rating because he found the applicant’s pain was caused by his physical impairments. We do not find this consistent with the experts’ diagnoses. Both psychiatrists diagnosed the applicant with, in part, Somatic Symptom Disorder, a mental health condition which influences the applicant’s pain complaints. Dr. Sivasubramian also testified that the applicant had an excessive preoccupation with pain. We therefore do not agree with Dr. Sivasubramian that the applicant’s pain complaints were solely or primarily caused by his physical impairments.
61Due to the diagnosis of Somatic Symptom Disorder, we find that Dr. Sivasubramanian’s explanation for reducing the PIRS score was not supported by the evidence. We prefer Dr. Blitzer’s rating of 30% and find that it is more consistent with both psychiatrists’ diagnoses and observations.
Surveillance evidence
62The Tribunal finds that the surveillance evidence provides little probative value to the question of the applicant’s credibility.
63Much was made by the respondent of the surveillance evidence it introduced at the hearing. Parts of the surveillance were played for the Tribunal. Many of the expert witnesses were asked if they reviewed it and asked their observations of it. In its submissions, the respondent raised issues with the applicant’s credibility and argued that no validity testing was done. It states that all of the applicant’s impairments are “invisible” mental and behavioural disorders and therefore, the surveillance evidence should be given much weight to assist the Tribunal in determining the applicant’s functionality. The respondent submits that the surveillance evidence shows the applicant can function well; he can drive a car (even take a series 400 highway to Scarborough), he is seen attending various stores, walking through the mall, communicating with store clerks, attending church, and is able to treat members of the public with courtesy.
64The applicant submits that CAT does not equal catatonic as the ability to complete a task does not mean an individual is not CAT. He relies on R.V. v. Aviva Insurance Canada (citation being 18-001944 v. Aviva Insurance Canada, 2019 CanLII 22202 (ONLAT)) and states that it is the quality, as opposed to the quantity, of these activities that should be considered.
65The evidence submitted consists of three periods of surveillance being May 8-10, 2019 (three days of surveillance), November 11-30, 2021 (six days of surveillance), and October 26, 2023 to November 4, 2023 (six days of surveillance). Over a total of approximately 175 hours of surveillance, the applicant was observed outside of his home for approximately 19.5 hours.
66The vast majority of the sightings occurred in the late afternoon/early evening. We find this is consistent with the applicant’s evidence and self-reports that the most difficult time for him to function is in the morning. Some days, the surveillance notes that the applicant is not observed leaving his home at all.
67Although the applicant is seen at various times walking, bending, driving and carrying items (such as take out or other items), we do not find that overall, this is inconsistent with his evidence or his self-reports to assessors. He drives short distances to local places (except, as he testified, when he attends his physiotherapy sessions in Scarborough); and his interactions with the public are transactional and brief. The applicant is observed wearing the same clothing on consecutive days and spending unspecified time stationary in his vehicle. He is observed at times smiling, and briefly greeting individuals he possibly knows.
68We find that these moments in time are not illustrative of the applicant’s overall functionality, nor are they illustrative of inconsistencies with the evidence.
Pre-existing impairments
69The applicant was cross-examined on complaints he made to his family physician during various pre-accident visits. The following specific entries were submitted by the respondent from the family physician’s CNRs.
a) March 22, 2017 – complaint of low back pain, with radiation of pain down the right side down to the ankle level;
b) June 10, 2017 – complaint of multiple joint pain;
c) September 15, 2017 – complaint of hands and feet paresthesia;
d) September 23, 2017 – complaint of headaches and multiple joint pain (worse in right shoulder, lower back, right leg);
e) September 27, 2017 – the applicant’s family physician prepared a referral to Dr. Jonathan Shero in which he indicated a history of mechanical low back pain; and
f) June 9, 2018 – complaint of gout and upper back pain.
70The applicant’s evidence is that he associates these aches and pains to the normal ageing process and a period of time when he was B12 deficient (we note that the applicant was subsequently prescribed B12 1000mcg/ml). Upon receiving medical advice and medications, he testified that the pains alleviated. When these CNRs were put to Dr. Blitzer during cross-examination, Dr. Blitzer responded that the multiple joint pain on June 10, 2017 appeared to be in the context of the applicant contracting the flu. Regarding the September 27, 2017 referral that indicated “mechanical low back pain”, Dr. Blitzer responded that the comment was made in the context of the applicant’s medical history and not that it was present at the time. In response to the “gout and upper back pain” on June 9, 2018, Dr. Blitzer noted that the applicant was not referred for an examination of his back; only of his toe.
71We are not persuaded that the applicant’s current impairments predate the accident. There is also no evidence in the CNRs of any pre-existing mental or psychological impairments. The applicant, a 65-year old man and former athlete, continued to be independent with his daily activities prior to the accident. We acknowledge that some of the applicant’s current complaints were raised to his family physician prior to the accident, but there is not sufficient information or additional evidence to support that they persisted beyond the family physician’s intervention. Even the respondent’s expert psychiatrist, Dr. Sivasubramanian, testified that the applicant’s mental state deteriorated from the first time he assessed him in April 2022 to his following assessment in February 2024. As determined through our CAT analysis above, we find the applicant is CAT. If any of the current impairments existed prior to the accident, based on the assessment reports submitted by both parties, we find that the accident exacerbated them.
72In summary, we accept the following WPI ratings: 19% for musculoskeletal system; 17% for headaches; 3% for treatment/medication; and 30% for mental and behavioural. Based on the Combined Values Chart, these ratings equal a combined WPI of 55%. Having met the 55% threshold, we find the applicant CAT.
Criterion 8
73We have already found the applicant has met the definition of CAT pursuant to Criterion 7. As such, it is not necessary to undergo an analysis under Criterion 8.
Is the applicant entitled to attendant care benefits?
74The applicant is entitled to attendant care benefits (ACB) but he has not met his onus to show that the ACBs have been incurred in accordance with section 3(7)(e) of the Schedule. No ACBs are payable.
75Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aid. Section 3(7)(e) provides that a person has “incurred” an attendant care expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.
76The definition of “incurred” in section 3(7)(e) of the Schedule sets out two categories of attendant care providers:
a. Professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and
b. Non-professional service providers.
77For the services of a non-professional care provider to be compensable under the Schedule, section 3(7)(e)(B) stipulates that the care provider must have sustained an economic loss as a result of providing the goods and services. In addition, under section 19(3)4 of the Schedule, the amount of ACBs payable is limited to the economic loss sustained by a non-professional care provider while, and as a result of, providing the attendant care.
78The applicant submits he incurred expenses for attendant care provided by his friend, George, from August 3, 2018 to date and ongoing. The applicant testified that George began helping him approximately three weeks after the accident and returns regularly about three times a week for two to four hours. He testified that he pays George $20.00 per hour. The applicant relies on an Occupational Therapy In-Home Assessment report of Chantelle Bernard, occupational therapist, dated March 23, 2019, to support his entitlement to this benefit and argues that the respondent denied the benefit without obtaining its own opinion.
79The respondent submits that a section 44 report was prepared for ACBs being the Catastrophic Impairment Rating Report of Dr. Karabatsos, orthopaedic surgeon, dated March 28, 2024, which found the applicant did not meet the criteria for CAT under Criteria 7 and 8.
80Ms. Bernard found during her assessment that the applicant continues to experience pain and presented with difficulties and pain with movements, strength and endurance. As required by the Schedule, an Assessment of Attendant Care Needs (Form 1) was completed which recommended the following:
| Activity | Minutes | Times per day | Minutes per week |
|---|---|---|---|
| Part 1: Grooming -toenails: cleans and trims as required |
30 | 1 | 30 |
| Feeding -provides assistance, either in whole or in part, in preparing serving and feeding meals |
60 | 7 | 420 |
| Total Part 1: | 450 | ||
| Part 2: Hygiene Bathroom -cleans tub/shower/sink/toilet after applicant’s use Bedroom -change applicant’s bedding, makes bed, cleans bedroom, including Hoyer lifts, overhead bars, bedside tables -ensures comfort, safety and security in this environment |
10 10 10 |
7 7 7 |
70 70 70 |
| Total Part 2: | 210 | ||
| Part 3: Exercise -assists applicant with prescribed exercise / stretching program |
20 | 14 | 280 |
| Total Part 3: | 280 |
81A total monthly attendant care allowance for Parts 1, 2 and 3 was determined to be $1,114.84. Although the applicant claims $3,000.00 per month, section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (Form 1), here, being $1,114.84.
82We assign much weight to the in-home assessment report prepared by Ms. Bernard. The activities Ms. Bernard identifies in her report are corroborated by information in the various expert CAT reports (trimming toenails and preparing meals) and align with the applicant’s psychological and physical impairments, notably his back pain and headaches. We find that the evidence supports the need for assistance in the areas she identified, and therefore find that the applicant is entitled to this benefit. The report of Dr. Karabatsos on which the respondent relies concluded that in his opinion, the applicant did not satisfy the requirements of a CAT determination. Having found that the applicant is CAT, as discussed above, we find that Dr. Karabatsos’ report is not helpful in our determination of whether the applicant is entitled to ACBs.
83Before determining what amount, if any, is payable by the respondent, an additional review of the evidence of incurred care is required. As noted above, to satisfy the requirements of section 3(7)(e)(B), the applicant must show that George, a non-professional service provider, sustained an economic loss as a result of providing the services. Here, limited information pertaining to George’s loss of earnings was submitted into evidence. When cross-examined on the subject, the applicant testified that he provided his invoices and receipts to his previous counsel. No “invoices” were submitted at this hearing and the applicant’s testimony about George’s services is not sufficient to satisfy this requirement. The applicant has therefore not met his onus of demonstrating ACBs were incurred.
84As such, we find that the applicant is entitled to ACBs but find that no ACBs are payable by the respondent within this application.
Is the applicant entitled to housekeeping and home maintenance benefits?
85The applicant is entitled to housekeeping and home maintenance benefits but no benefit is payable by the respondent within this application.
86Section 23 of the Schedule states that an insurer shall pay up to $100.00 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of the accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
87The applicant submits that there is ample evidence that he requires housekeeping assistance. The applicant testified that a lady (named Donna) would help him clean his house but, after the accident, there were times when the applicant would get angry and yell at her. Over time, Donna became scared of the applicant and ceased helping. His friend George subsequently took on those tasks. The applicant relies on the Occupational Therapy In-Home Assessment report of Chantell Bernard, occupational therapist, dated March 23, 2019 which also addressed housekeeping and home maintenance.
88The respondent did not make submissions regarding this claim.
89Ms. Bernard assessed and determined that the applicant could benefit from housekeeping assistance of 5.25 hours per week that focus on the more physically demanding tasks, as follows:
| Activity | Minutes / Week |
|---|---|
| Making bed and changing sheets | 30 |
| Bathroom cleaning | 30 |
| Meal preparation/cooking | 60 |
| Dishwashing | 30 |
| Kitchen cleaning | 30 |
| Garbage removal | 15 |
| Mopping/sweeping | 30 |
| Dusting | 30 |
| Laundry/ironing | 30 |
| Groceries | 30 |
| TOTAL: | 5.25 hours/week |
90We are persuaded by Ms. Bernard’s report because the need for assistance with these activities is corroborated by the information provided to CAT assessors and noted in their reports (such as cleaning, meal preparation, garbage removal, and groceries), and is in alignment with the applicant’s physical and psychological impairments (e.g., back pain, headaches). We therefore find that the applicant is entitled to housekeeping and home maintenance benefits. However, we note that there are duplications with the recommendations made for ACBs. Notably, “making bed and changing sheets”, “bathroom cleaning” and “meal preparation/cooking” have already been included within the analysis of ACBs. To consider them within the context of housekeeping and home maintenance benefits would be duplicative. As such, the weekly hours required for the remainder of the activities are reduced to 3.25 hours per week.
91As with our analysis for ACBs, we need to determine what amounts, if any, are payable by the respondent within this application. Similarly to the analysis of the ACBs above, this is done pursuant to section 3(7)(e) of the Schedule.
92Here, the applicant has not submitted any invoices by a professional service provider and limited proof that a non-professional care provider sustained an economic loss as a result of providing the services. He testified that all invoices were provided to his prior counsel but the applicant’s testimony is not sufficient to satisfy this requirement.
93Having found the applicant CAT, we also find that the applicant is entitled to housekeeping and home maintenance benefits. We find, however, that the applicant has not satisfied his onus of demonstrating that any costs associated with this benefit have been incurred, and as such, the benefit is not payable by the respondent within this application.
Medical Benefits
94The applicant is also seeking entitlement to the following medical benefits plans:
a) $648.48 for physiotherapy services;
b) $7,133.96 for occupational therapy services;
c) $3,416.68 for psychological services;
d) $2,644.16 for chiropractic services;
e) $2,200.00 for a psychological assessment;
f) $4,000.00 for a catastrophic psychological assessment;
g) $200.00 for the cost of a Disability Certificate (OCF-3); and
h) $2,000.00 for a catastrophic assessment executive summary.
95To receive payment for medical benefits under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
96The applicant submits the medical benefits in dispute are reasonable and necessary. No further submissions were made and the applicant did not point us to the treatment plans or any evidence in support of the treatment plans. The applicant did not address the goals identified for each of these treatment plans, how the goals would be achieved, or their cost. As such, we find that the applicant has not satisfied his onus of establishing that the medical benefits in dispute are reasonable and necessary.
Interest
97Interest applies on the payment of any overdue benefits, pursuant to section 51 of the Schedule. We did not find that the applicant is entitled to payment for any of the benefits in dispute. As such, no interest is payable.
Award
98The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
99The applicant did not make submissions or direct us to any evidence in support of his claim for an award. Therefore, we find that the applicant is not entitled to an award.
ORDER
100For the above reasons, we find:
i. The applicant has sustained a catastrophic impairment under Criterion 7, as defined in section 3.1(1)7 of the Schedule.
ii. The applicant is entitled to ACBs but not benefits are payable.
iii. The applicant is entitled to housekeeping and home maintenance benefits but no benefits are payable.
iv. The applicant is not entitled to the medical benefits in dispute.
v. The applicant is not entitled to interest or an award.
Released: August 13, 2025
Nathan Prince
Adjudicator
Trina Morissette
Vice-Chair