Russnaik v. Royal & Sun Alliance Insurance Company of Canada, 2025 CanLII 81435

Russnaik v. Royal & Sun Alliance Insurance Company of Canada

Citation: Russnaik v. Royal & Sun Alliance Insurance Company of Canada, 2025 ONLAT 24-005267/AABS

Licence Appeal Tribunal File Number: 24-005267/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:

Karen Russnaik

Applicant

and

Royal & Sun Alliance Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Nkiru Nwabudike, Counsel

For the Respondent: Geoffrey L Keating, Counsel

Heard by Videoconference: March 10 to 13, 2025

OVERVIEW

1Karen Russnaik, the applicant, was involved in an automobile accident on October 17, 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 Royal & Sun Alliance Insurance Company of Canada, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The 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 $2,768.30 per month from June 7, 2022 to February 28, 2023?

iii. Is the applicant entitled to attendant care benefits in the amount of $913.92 per month from March 1, 2023 to November 22, 2023?

iv. Is the applicant entitled to attendant care benefits in the amount of $263.01 per month from November 23, 2023 to February 26, 2024?

v. Is the applicant entitled to attendant care benefits in the amount of $499.75 per month from February 27, 2024 to ongoing?

vi. Is the applicant entitled to the treatment plans/OCF-18 (“treatment plan”) proposed by Cristyn Franic - OT Professional Corporation, as follows:

1. $1,200.00 for occupational therapy services, in a treatment plan dated June 7, 2022;
2. $120 ($3,811.25 less $3,691.24 approved) for occupational therapy services, in a treatment plan dated June 17, 2022;
3. $1,964.70 for assistive devices, in a treatment plan dated August 2, 2022;
4. $2,946.80 for a mattress, in a treatment plan dated August 2, 2022;
5. $1,808.00 for a water system, in a treatment plan dated September 29, 2022; and
6. $698.25 ($3,791.04 less $3,092.79 approved) for occupational therapy services, in a treatment plan dated January 12, 2023?

vii. Is the applicant entitled to the treatment plans proposed by Essential Physio and Rehab, as follows:

1. $10,476.44 for a chronic pain treatment, in a treatment plan dated December 3, 2021;
2. $4,967.18 for physiotherapy services, in a treatment plan dated April 22, 2022;
3. $2,216.78 for physiotherapy services, in a treatment plan dated June 3, 2022;
4. $2,231.02 for physiotherapy services, in a treatment plan dated July 7, 2022; and
5. $2,995.12 for physiotherapy services, in a treatment plan dated February 19, 2021?

viii. Is the applicant entitled to the treatment plans proposed by Therapy Connections, as follows:

1. $3,382.41 for case management services, in a treatment plan dated October 4, 2022;
2. $2,615.00 for social work counselling, in a treatment plan dated December 22, 2022;
3. $2,856.23 for case management services, in a treatment plan dated June 5, 2022;
4. $3,842.58 for case management services, in a treatment plan dated July 19, 2022;
5. $3,842.58 for case management services, in a treatment plan dated December 19, 2022;
6. $2,615.00 for case management services, in a treatment plan dated December 22, 2022;
7. $4,129.83 for rehab counselling, in a treatment plan dated February 22, 2023;
8. $3,185.05 for case manager services, in a treatment plan dated April 11, 2023; and
9. $3,535.00 for case manager services, in a treatment plan dated September 29, 2023?

ix. Is the applicant entitled to the physiotherapy services proposed by Physiomed Waterloo, as follows:

1. $2,452.00 in a treatment plan dated March 31, 2023;
2. $2,326.75 in a treatment plan dated June 28, 2023;
3. $2,326.75 in a treatment plan dated October 20, 2023; and
4. $2,326.75 in a treatment plan dated February 2, 2024?

x. Is the applicant entitled to $1,693.19 ($3,243.63 less $1,550.47 approved) for home assistive devices, proposed by Fisher, Franic & Associates in a treatment plan dated April 18, 2023?

xi. Is the applicant entitled to $2,614.00 for physiotherapy services, propose by Activa Kitchener in a treatment plan dated September 9, 2022?

xii. Is the applicant entitled to $1,500.00 for speech language pathology services proposed by J.A. Venhuizen Speech-Language Pathology Professional Corporation in a treatment plan dated July 4, 2022?

xiii. Is the applicant entitled to $11,000.00 ($24,560.00 less $13,560.00 approved) for a CAT assessment, proposed by Downsview Healthcare in a treatment plan dated November 12, 2020?

xiv. Is the applicant entitled to $134.63 ($397.56 less $262.94 approved) for assistive devices, in an OCF-6 dated April 16, 2023?

xv. Is the applicant entitled to $3,340.36 for attendant care services, proposed by Advanta Health Care Services and submitted in an invoice dated December 29, 2023?

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

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

RESULT

3The applicant is not catastrophically impaired.

4She is not entitled to any treatment plans, attendant care, nor interest.

5The respondent is not liable to pay an award.

PROCEDURAL ISSUES

6The applicant’s oral motion to add a witness was denied.

7At the start of the hearing, the applicant asked to add Montana Mullane, the respondent’s occupational therapist, as a witness in this proceeding. She submits that the testimony of this witness is relevant because the applicant’s psychiatrist relied on Ms. Mullane’s report when formulating an opinion on catastrophic impairment. She also submits that she only recently decided to call this witness while preparing for this case.

8The respondent objected to the applicant’s motion. It received no notice of this witness and had no chance to prepare. In its view, allowing this motion would be procedurally unfair.

9I note that Rule 9.3 of the LAT Rules, 2023 (Rules) states that if a party fails to comply with any order in respect to witness lists, then the party may not call a witness who is not on a witness list, filed in compliance with the order, to give evidence without the permission of the Tribunal.

10The Case Conference Report and Order, dated October 11, 2024, allowed the applicant to call 8 witnesses from a list of 15 proposed witnesses. The applicant had five months to submit a motion to add Ms. Mullane to the list of proposed witnesses. This was not done because the applicant only recently decided that Ms. Mullane should be called as a witness. In my view, this explanation does provide a sufficient basis to justify the lateness of this request.

11I agree that the testimony of an occupational therapist may be relevant. However, the respondent raised the issue of prejudice. In particular, preparing its case and not having any notice of this witness until after the hearing started. I agree that these circumstances are procedurally unfair.

12I denied the applicant’s oral motion because she did not provide a sufficient basis to justify the lateness of her request and because it would be procedurally unfair to allow this request.

ANALYSIS

Catastrophic impairment – Criterion 7

13A catastrophic impairment under Criterion 7 results when, as a result of an accident, an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides”), where the impairment score is combined with a physical impairment rating from Criterion 6, and results in a 55% or more Whole Person Impairment (WPI) rating.

14The medical reports in evidence provide the following WPI ratings for physical impairments:

Impairment	Applicant’s Ratings	Respondent’s Ratings
Dr. Basile’s Neurological Evaluation dated January 15, 2021		Dr. Moddel, neurologist, Insurer Examination dated May 31 2022
Neurological Impairment		0%
Emotional or Behavioural Ch. 4, Table 3	10%
Consciousness and Awareness Ch. 4, Table 4	15%
Lumbar Spine Ch. 3, Table 72 (duplicates the lumbar spine rating also found in Dr. Getahun’s report)	5%
Sleep Ch. 4, Table 6	3%
Occipital Neuralgia Ch 4, Table 23	10%
Migraine Headache	2%
Tension Headache	1%
Sexual Dysfunction Ch 4, Table 19	4%
Dr. Getahun’s Orthopaedic Report, January 19, 2021		Dr. Marchuk’s Insurer Examination dated May 31, 2022
Cervical Spine Ch. 3 Table 73	5%	5%
Thoracic Spine Ch. 3, Table 74	5%
Lumbar Spine Ch. 3, Table 72	5%	5%
Dr. Shahmalak Psychiatric Evaluation dated November 13, 2024		Dr. Aladetoyinbo Insurer Examination dated May 31, 2022
Mental and Behavioral	30%	15%
Total WPI Rating: (using the combined values chart in the Guides)	59%	24%

15According to the applicant, she is catastrophically impaired under Criterion 7 because the medical reports referenced in the Executive Summary of Dr. Tajedin Getahun, orthopaedic surgeon, establish that she has a 59% WPI rating. In particular, she submits that the Tribunal should rely on the Neurological Evaluation of Dr. Vincenzo Basile, neurologist, dated January 15, 2021, because it offers a comprehensive analysis of the applicant.

16The respondent submits that the applicant is not catastrophically impaired under Criterion 7. It argues that Dr. Basile’s ratings cannot be accepted because he provides no explanation for his ratings and that the absence of neurological impairment is supported by the report of its own neurologist, Dr. Moddel. It further submits that the 24% WPI rating by its assessors are fully explained, and therefore, more reliable.

Cerebral dysfunction

17Dr. Basile rated the applicant as having a 10% WPI rating for emotional or behavioural impairments under Table 3 of Chapter 4 of the Guides. The applicant submits that this neurological impairment is properly rated. The respondent argues that this rating is not appropriate because it does not consider the applicant’s psychological impairments.

18I agree with the respondent and give no weight to this WPI rating.

19Ratings under Table 3 of Chapter 4 of the Guides are for emotional or behavioural disturbances caused by a neurological injury. The impairment may include irritability, outbursts of rage, and involuntary laughter or crying. The impairment is rated according to how it impacts the applicant’s ability to socially interact. For example, the impairment description in the Guides for the rating used by Dr. Basile states that the impairment results in a “mild limitation of daily social and interpersonal functioning.”

20Dr. Basile diagnoses the applicant with post-concussive syndrome consistent with a traumatic brain injury. He notes that there is an “indication of trouble controlling emotions with excessive/out of character laughter and/or excessive/out of character tearing and crying. She described some features of pseudobulbar affect also known as emotional incontinence.”

21He does not explain what causes the “emotional incontinence” symptoms in his report. As such, his report does not establish a link between these symptoms and a neurological injury that is ratable under the Guides.

22The applicant has been diagnosed with psychological disorders. Dr. Shahmalak, psychiatrist, diagnosed her with an accident related psychological injury of major depression and post-traumatic stress disorder in his November 13, 2024 report. Dr. Aladetoyinbo diagnosed the applicant with major depression which he attributes to the accident in his May 31, 2022 report. Additionally, Dr. Felix Yaroshevsky, psychiatrist, opined in his May 20, 2021 report that the accident exacerbated the applicant’s pre-existing chronic mood symptoms. Dr. Basile does not appear to be aware of any psychiatric diagnosis. This is significant as the cause of the emotional and behavioural impairment being rated under Table 3 of Chapter 4 must be neurological in nature and not based on psychiatric symptoms.

23There is no dispute that the applicant suffers from psychological disorders. Dr. Basile does not address these psychiatric symptoms and how such symptoms can be distinguished from neurological symptoms when determining the cause of emotional and behavioural impairments. Consequently, I find there is no way to ascertain if the applicant’s “emotional incontinence” is caused by a ratable neurological injury rather than a psychological injury.

24Even if there was clear evidence showing that the applicant’s “emotional incontinence” was caused by a neurological injury, I find Dr. Basil would have to further explain how this limitation results in a “mild limitation of daily social and interpersonal functioning.” This is not explained in his report. As such, I find that Dr. Basile does not establish a nexus between the applicant’s symptoms and the impairment description in the Guides.

25Further, Dr. Basile’s report does not link the applicant’s emotional and behavioural symptoms to a neurological injury. As well, he does not explain how neurological symptoms can be distinguished from the psychiatric symptoms to cause “emotional incontinence.” I have also found that Dr. Basil does not link “emotional incontinence” symptoms to the impairment description. For all these reasons, I find that there is an insufficient basis to rate the applicant under Table 3 of Chapter 4.

26I do not accept Dr. Basile’s 15% WPI rating for impairment of consciousness and awareness.

27Table 4 of Chapter 4 describes this impairment as being a “Prolonged alteration of state consciousness, diminishing capabilities in personal care and other activities of daily living.”

28Dr. Basile notes that the applicant “described an inability to focus and concentrate with some memory issues.” However, he does not identify any symptoms showing that the applicant loses consciousness or somehow deviates from a normal waking state. As such, there is no evidence supporting the premise that the applicant has issues with maintaining consciousness.

29I further note that having consciousness-related symptoms is not enough to allow for a WPI rating under Table 4 of Chapter 4. Those symptoms must interfere with the ability to complete activities of daily living (ADL) for the impairment to be ratable. Dr. Basile reports that the applicant’s ability to complete the ADL is limited by pain, however, he does not report limitations in the applicant’s ability to complete ADLs that are caused by an impairment to her consciousness.

30As such, I do not accept Dr. Basile’s WPI rating for impairment of consciousness because his analysis does not touch on the essential elements needed to make this rating pursuant to the Guides.

Spine

31Dr. Basile and Dr. Getahun both rate the applicant as having a 5% WPI rating for the lumbar spine. Ratings cannot be double counted. Therefore only Dr. Getahun’s rating, which I accept, is considered below.

Sleep

32I find that there is sufficient evidence to justify Dr. Basile’s 3% WPI rating for sleep.

33In Table 6 of Chapter 4 of the Guides, WPI ratings are given for sleep disorders caused by both neurological and mental and behavioural factors such as depression, irritability, and social problems. The impairment description for Dr. Basile’s rating is given as: “Reduced daytime alertness with sleep pattern such that the patient can carry out most daily activities.”

34Dr. Basile’s report documents the applicant’s self reported broken sleep pattern which she attributes to pain and anxiety. She also described “a feeling of haziness, fogginess and at times grogginess and fatigue to her mental capacity,” to Dr. Basile. The mental fog reported by the applicant accords with the “reduced daytime alertness” in the impairment description of the Guides.

35Other reports document the applicant’s post-accident sleep issues, such as the report of Dr. Shahmalak, psychiatrist, dated November 13, 2024, and the report of Dr. Paul Jensen, neurologist, dated June 11, 2019. Cumulative weight of all these reports persuade me that the applicant’s post-accident sleep issues are caused by psychiatric factors. This impairment can be rated under Table 6, Chapter 4 of the Guides. Consequently, I find that the applicant sustained a ratable sleep disorder. For this reason, I accept Dr. Basile’s 3% WPI rating for sleep.

Cervicogenic headaches/greater and lesser occipital neuralgia

36I disagree with Dr. Basile’s 10% WPI rating for cervicogenic headaches/greater and lesser occipital neuralgia.

37Table 23, Chapter 4 of the Guides rates sensory impairment of the spinal nerves in the head and neck region due to a sensory abnormalities or loss of strength. This is done by identifying the applicable percentage of impairment from Table 23. The severity of the impairment is then identified in Table 20 and the rater decides on the percentage of sensory impairment. The final step is to multiply the percentage from Table 23 with the percentage derived from Table 20 to determine the WPI rating.

38Dr. Basile’s report provides a 10% WPI rating, but he does not show any of the above noted steps that are needed to make this rating. For example, he does not identify what percentage of sensory impairment was used from Table 20. Consequently, I do not accept this rating because the report does not demonstrate that the process in the Guides was followed to reach this WPI rating, and as a result, it is not possible to understand how this rating was formulated.

Headaches

39Dr. Basile provides a 2% WPI for migraine headaches and a 1% WPI rating for tension headaches but does not state what table he used to make these ratings. A WPI rating cannot be understood without referencing the correct table used to make that rating. For this reason, I do not accept these ratings.

Sexual dysfunction

40I do not accept Dr. Basile’s 14% WPI rating for sexual dysfunction.

41Table 19 in Chapter 4 of the Guides provides WPI ratings for sexual dysfunction that results from spinal cord or other neurological disorders. The impairment description for the rating chosen by Dr. Basile states: “Reflex sexual functioning is possible but there is no awareness.”

42Dr. Basile describes various symptoms related to sexual function, including a lack of lubrication when desire is present. This is inconsistent with the impairment description which requires a complete inability to be aroused. More significantly, Dr. Basile does not explain the nexus between the applicant’s sexual function and the accident. The only comment he makes is that the applicant reported that her difficulties with sexual function are “above and beyond lack of desire secondary to pain.” This statement offers no meaningful insight into what accident-related spinal cord or other neurological injuries impacted the applicant’s sexual functioning.

43I also note that the applicant was 65 years old at the time of Dr. Basile’s assessment. The Guides advise that assessors should consider the patient’s age and previous sexual functioning when assessing this impairment. There is no indication that this was done. Consequently, it does not appear that Dr. Basile followed the instructions in the Guides to assess this impairment. This is significant because assessors must follow the standardized method in the Guides to ensure consistency with the rating system.

44I do not accept Dr. Basile’s WPI rating for sexual dysfunction because he did not follow the method of evaluating this impairment in the Guides, he did not establish a nexus between the accident and the impairment, and because the impairment description that he relies on does not match the symptoms reported by the applicant.

45If the remaining WPI ratings of Dr. Getahun for the spine and Dr. Shahmalak’s rating for mental and behavioural WPI ratings are accepted at face value, the applicant’s WPI rating does not meet the required 55% threshold to be found catastrophically impaired under Criterion 7:

Impairment	Rating
Sleep	3%
Cervical Spine	5%
Thoracic spine	5%
Lumbar Spine	5%
Mental and Behavioural	30%
Total WPI Rating: (using the combined values chart in the Guides)	43%

46Consequently, I find that the applicant is not catastrophically impaired under Criterion 7.

Catastrophic impairment – Criterion 8

47I find that the applicant is not catastrophically impaired under Criterion 8 for the following reasons.

48In the applicant’s Psychiatric CAT Assessment Report, dated November 13, 2024, Dr. Shahmalak, psychiatrist, diagnoses the applicant with a Major Depressive Disorder and a Post-Traumatic Stress Disorder. He notes that the applicant has a pre-accident history of depression and anxiety and, post-accident, her symptoms became worse. In particular, he concludes that her trauma symptoms and cognitive difficulties resulted from the accident and caused psychological impairments. The respondent’s expert, Dr. Aladetoyinbo, psychiatrist, describes the applicant’s psychiatric symptoms but does not address causation in his Independent Psychiatry Examination, dated May 31, 2022. As such, I find that Dr. Shamalak’s diagnosis and analysis establishes a causal link between the accident and the applicant’s mental and behavioural disorders.

49A catastrophic impairment under Criterion 8 results when an insured person sustains three of more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) in an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder. The four areas of function in Criterion 8 are activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.

50I note that an assessment under Criterion 8 involves a different framework and different descriptions of impairment levels than what is found in Criterion 7.

51The Guides set out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:

Area or Aspect of Functioning	Class 1: NO Impairment	Class 2: MILD Impairment	Class 3: MODERATE Impairment	Class 4: MARKED Impairment	Class 5: EXTREME Impairment
Activities of Daily Living	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
Concentration, Persistence and Pace
Adaption

Activities of Daily Living (ADL)

52This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. The quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

53The applicant relies on the observations of various occupational therapists to confirm Dr. Shahmalak’s marked impairment rating for the ADL.

54The respondent argues that the applicant’s ability to function precludes a marked impairment rating in the ADL.

55I note that the text of Dr. Shahmalak’s report states that the applicant has a marked impairment in the ADL, while the chart in his report shows a moderate impairment rating. At the hearing, he testified that the moderate rating is correct.

56Dr. Aladetoyinbo rates the applicant as having a moderate rating. Thus, both assessors agree that the applicant has a moderate impairment in the ADL.

57The applicant’s submissions referenced the various occupational therapy reports to show that she has a marked impairment in the ADL. However, in my view, the following observations of occupational therapists establish that the applicant’s impairment levels are compatible with some useful functioning which is consistent with a moderate impairment:

Julian Amchislavsky, occupational therapist, Occupational Therapy Catastrophic Impairment Determination Assessment Report dated May 15, 2021:

a. Bathes in the morning and sometimes at night. Brushes teeth daily. Grooming activities such as washing, drying, and setting her hair, and cutting toenails are only limited by pain which is not a psychological impairment;

b. Feeds her cat;

c. Food preparation is limited by pain, which is not a psychological impairment.

Jag Dhirayain, occupational therapist, Attendant Care Assessment Report, dated June 11, 2019:

a. No impairments in dressing and undressing, bathing, toileting.

Cristyn Franic, occupational therapist, Occupational Therapy Assessment of Attendant Care, and Assessment of Motor Skills and Process Skills, dated July 22, 2022:

a. Independent in her ability to wash her hands and face, to wash and brush her hair, washing her hair using a handheld shower head.

b. Cares for her cat independently, including feeding, providing water and cleaning the litter;

c. Independent in her ability to transfer off and on all surfaces, to ambulate indoors, as well as to ascend and descend stairs without the use of any assistive devices.

Montana Mullane, occupational therapist, Independent Occupational Therapy In Home Assessment, dated May 31, 2022:

a. Independent with medication, skin care, mobility, laundry, grocery shopping, vacuuming, and caring for her cat.

Montana Mullane, occupational therapist, Independent Occupational Therapy Situational Assessment, dated May 31, 2022:

a. The applicant reported that she is independent with personal care.

58The applicant submits that the occupational therapist reports document her memory issues and other cognitive deficits which cause her to become frustrated and unable to complete tasks. In particular, she referenced her inability to complete the grocery shopping task in the situational assessment with Mr. Amchislavsky. She also submitted that during a situational assessment with Ms. Mullane, the applicant had difficulty finding the shopping cart in Walmart.

59The mental and behavioural functional impairments from the situational assessments are inconsistent with in the surveillance from January 28, 2023. The footage documents the applicant continuously shovelling the snow in her driveway for 45 minutes. When asked to explain how she was able to do this, the applicant testified that she did not know because she did not remember ever shovelling snow at her current address.

60After shovelling snow, the applicant gets in her car and spends the next two hours attending five different stores, including a Walmart were she uses the self-checkout line to complete her purchase.

61This surveillance shows that the applicant’s psychological impairments do not impede her from maintaining the focus and determination for the extended period of time needed to complete the strenuous task of clearing the snow from her driveway. This is an example of good functioning. The applicant then goes shopping at stores over a two hour period. This is a further example of good functioning in the area of the ADL.

62The applicant argues that no weight should be given to the surveillance from January 28, 2023 because it is just one example of good functioning and is not representative of her functional abilities. I disagree. There are other surveillance videos which show the applicant purchasing alcohol and attending an Ikea store. In my view, these examples show that her impairments are compatible with shopping, and grocery shopping.

63Consequently, I find that the applicant has a moderate impairment in the ADL because the observations of the occupational therapists and surveillance show that her psychological impairment levels are compatible with some useful functioning.

Social Functioning

64Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with family members, friends, neighbours, grocery clerks, landlords, and other members of the public.

65The applicant argues that the moderate impairment rating by Dr. Aladetoyinbo should not be accepted because he made unfounded inferences from the situational assessment of Ms. Mullane. In her view, greater weight should be given to Dr. Shahmalak’s marked impairment rating because it is better supported with more reliable evidence.

66Dr. Shahmalak states that the applicant isolated herself after the accident because of pain and amotivation. He also states that the applicant has no social life and has lost all her friends because she is less tolerant of others and gets irritable more easily after the accident. He seems to base this on the applicant’s self reported emotional dysregulation towards family, friends, and community members. During the assessment, he observed the applicant being unclear in her communication which he attributes to emotional disturbances. In particular, the applicant had difficulty with topic initiation, topic maintenance, and she became mentally fatigued as the assessment progressed. He rated her as having a marked impairment in social functioning.

67In my view, the evidence does not show that the applicant isolated herself after the accident. During the situational assessment by Ms. Mullane, the applicant was required to locate various items in a store. On her own initiative and without any direction or cuing, the applicant sought the assistance of store employees when she was unable to locate an item. The applicant was also observed waving back at a small child that waved at her. These examples of good functioning are inconsistent with someone who isolates herself and is unable to interact with others.

68The surveillance video from July 2, 2021 shows the applicant walking around in an Ikea store. While viewing the footage she testified that she “talks to a lot of strangers” because it helps her if they smile and say something positive to her. The applicant also testified that she always wanted to socialize after the accident and that she is not a hermit. Again, this testimony is inconsistent with Dr. Shahmalak’s opinion that she is someone who isolates herself.

69The applicant submits that her testimony went off on tangents and that various questions had to be rephrased in order for her to answer them. According to her, this shows that her impairments impede her ability to effectively communicate. I disagree with this characterization of her testimony. The applicant did, at times, veer away from the question being asked. However, this had a minor impact on her ability to communicate and answer questions during testimony. Additionally, I would note that there were times when the applicant also sought confirmation from the questioner to ensure that she had fully answered the question. This shows empathy and consideration and is a good example of functioning in regard to interacting with others. I further note that the applicant stood her ground, maintained her composure, and appeared confident when her credibility was challenged during her testimony on snow shovelling. In my view, the applicant communicated well under the stressful circumstance of providing testimony.

70As such, the willingness and ability to socialize with strangers and her ability to communicate well during testimony show that her impairments are compatible with some useful functioning. For this reason, I find that the applicant has a moderate impairment in social functioning.

71The applicant requires at least three marked impairments to be found catastrophically impaired. Having determined that she did not meet her burden of establishing that she has a marked impairment in two domains, an analysis of the remaining grounds is not required as she cannot be found to be catastrophically impaired.

72She makes no submissions in regard to having a Class 5 Extreme impairment in CPP or adaptation. Instead, she relies on Dr. Shahmalak’s rating of a marked impairment in both areas of function. Given these circumstances, there is no basis to find that the applicant has extreme impairment in CPP or adaptation.

73The applicant has not met her onus of establishing that she has three marked impairments or one extreme impairment. Consequently, I find that she is not catastrophically impaired under Criterion 8.

Attendant Care

74The applicant makes no submissions on this issue. As such, there is no basis for me to conclude that she is entitled to attendant care.

75To receive payment for a treatment and assessment plan under s. 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.

76The applicant submits that the testimony of Jag Dhirayain, occupational therapist, establishes that six to eight months after the accident she was unable to carry out her ADL and required the assistive devices which the insurer denied. She also references three reports by Cristyn Franic, occupational therapist, to further support that she continues to have pain in her spine and that the assistive devices in Ms. Franic’s reports dated July 22, 2022, January 6, 2023, and September 15, 2023 are reasonable and necessary.

77The applicant did not identify any specific treatment plans. Instead, she is asking the Tribunal to review an exhibit of 668 pages to identify which of the various treatment plans and denials relate to the reports of Ms. Franic. In my view, the applicant cannot ask the Tribunal to review a large swath of evidence to pick out which treatment plans may relate to her submissions. Doing so inappropriately places the Tribunal in the role of her advocate because she is asking me to connect the dots and make her case. It is up to her to identify the specific plan and explain how the evidence supports her entitlement to that plan.

78The applicant makes no submissions on treatment plans. The respondent only submits that it maintains its denials. As such, the applicant has not met her onus of establishing that the plans are reasonable and necessary. For this reason, I find that she is not entitled to the treatment plans in dispute.

Interest

79Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

80The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

81The applicant provided no basis upon which to grant an award. Consequently, I find that the respondent is not liable to pay an award.

ORDER

82The applicant is not catastrophically impaired.

83The applicant is not entitled to attendant care, any treatment plans, nor interest.

84The respondent is not liable to pay an award.

85This application is dismissed.

Released: August 11, 2025

__________________________

Harry Adamidis

Adjudicator