Licence Appeal Tribunal File Number: 24-013129/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:
Ronald Singh
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATORS:
Rebecca Hines
Trina Morissette
APPEARANCES:
For the Applicant:
Muniza Kabir, Counsel
Minhas Ramendeep, Counsel
For the Respondent:
Sean Chambers, Counsel
Heard by videoconference:
July 28-31, 2025
OVERVIEW
1Ronald Singh, the applicant, was involved in an automobile accident on November 5, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal (“the 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 claiming four treatment plans, 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 $2,460.00 for a social work assessment, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) dated September 20, 2023?
iii. Is the applicant entitled to $12,665.00 ($25,495.00 less $12,830.00 approved) for catastrophic impairment assessments, proposed by 101 Assessments in a plan dated January 12, 2024?
iv. Is the applicant entitled to $1,181.16 ($3,790.70 less $2,609.54 approved) for a psychological assessment, proposed by 101 Assessments in a plan dated March 25, 2024?
v. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments in a plan dated October 22, 2024?
vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4After considering the testimony of all witnesses and reviewing all the evidence, we find:
i. The applicant did not sustain a CAT impairment; and
ii. The applicant is not entitled to any of the medical benefits claimed, interest or an award.
BACKGROUND
5On November 4, 2020, the applicant was driving his vehicle on a collector road when another vehicle cut into his lane and struck his vehicle on the driver’s front side. The applicant’s wife was a front seat passenger. Police, fire and paramedics attended the scene. The applicant reported that he hit his head against the window but did not lose consciousness. He reported neck, left shoulder and lower back pain, dizziness and a headache. The applicant and his spouse were transferred by ambulance to the hospital where the applicant underwent x-rays. The x-rays were unremarkable and he was discharged home.
6Pursuant to the chronic pain assessment of Dr. Karmy, chronic pain specialist, dated November 26, 2021, the applicant sustained the following injuries: chronic post-traumatic headaches, exacerbation of prior mild traumatic brain injury with post-concussion symptoms, chronic pain in his neck, back, both shoulders, both legs, and knees, and chronic pain syndrome. The applicant was also diagnosed with psychological impairments by other assessors.
ANALYSIS
7The applicant seeks a CAT determination under Criteria 6, 7 and 8 under the Schedule.
8This matter is complicated by the fact that the applicant has a significant pre-accident medical history. He was involved in prior motor vehicle accidents in 2005 and 2016. In 2005, the applicant was involved in a significant accident when his vehicle was rear-ended. The injuries sustained from this accident included a diagnosis of a brain injury, chronic pain (back and shoulder), and depression. The applicant ceased working following this accident and began receiving Canada Pension Plan (CPP) benefits due to his severe and prolonged disability. He continues to collect CPP today.
9In 2016, the applicant was involved in another accident when he was again rear-ended while stopped at a traffic light. The injuries sustained from this accident were less severe and include a concussion and whiplash.
10Prior to the subject accident, the applicant’s medical history also documents hearing loss/tinnitus, type II diabetes, glaucoma, pancreatitis, migraines, gout, carpal tunnel syndrome, elevated cholesterol, hypertension and a seizure in May 2020. There is also documentation that references a left shoulder injury due to a work-related accident (2001-2002) and a right elbow partial tear in 2018. In addition, the applicant testified that some time after his mother’s death in 2017, he fell down the stairs and fractured his tail bone.
11The applicant was in another motor-vehicle accident in October 2023, subsequent to the subject accident, when he was rear-ended at a traffic light. He reported having sustained pain in his back and neck.
12In addition, there were various pre- and post-accident events in the applicant’s life that had an impact on his pre- and post-accident psychological condition including: his mother’s tragic murder in his native Trinidad in 2017; a marital affair in 2017 which resulted in a breakdown of his marriage and separation from his spouse and children in 2020; and his father’s strokes in 2020 and subsequent death due to COVID-19 in 2022. While in hospital for his seizure in May 2020 (prior to the subject accident), the applicant was diagnosed with major depressive disorder.
13The respondent submits that the applicant has not sustained a CAT impairment as a result of the subject accident. Rather, it submits that the applicant’s current physical impairments stem from the 2005 accident and the subsequent 2016 accident. It also argues that his psychological impairments are a result of the series of significant life events. The applicant has the burden to prove his case, and here, the respondent submits the applicant has not met his burden.
14The respondent acknowledges that the applicant sustained various impairments as a result of the accident, however it submits that the applicant’s assessors either inflated the impairment ratings by not accounting for apportionment, gave ratings where no accident-related impairment existed, or provided ratings that were not supported by the medical records.
15The applicant acknowledges that he had significant pre-accident health issues and had gone through very difficult moments since his accident in 2005. However, he submits that physically, his headaches and back pain stemming from the prior accidents had subsided and that he was stable in the two years leading up to the subject accident. He also maintains that he was independent in carrying out his daily activities. Psychologically, he was relatively stable; he had moved back in with his family, was spending time with his childhood friends on a monthly basis, met regularly with his treating psychiatrist, and was taking medication. The applicant submits that the subject accident exacerbated his chronic back pain and headaches and created new issues such as additional neck and back pain, shooting pain, and incontinence.
16We will therefore focus our analysis on which physical and psychological impairment ratings are supported by the medical record in determining whether the applicant sustained a CAT impairment as a result of the accident.
The applicant does not meet the CAT threshold under Criterion 6
17In order to qualify for CAT status under Criterion 6, the applicant must prove that he has a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) results in 55 per cent or more physical WPI. 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.
18The applicant relies on the multi-disciplinary CAT reports of ACE Catastrophic Assessments in which he was assessed by Dr. Getahun, orthopaedic surgeon, Dr. Basile, neurologist, Dr. Hasan, psychiatrist, and Julian Amchislavsky, occupational therapist (OT Amchislavsky). Dr. Herschorn, primary care physician, completed the executive summary and concluded that the applicant sustained a 54% WPI rating (rounded to 55%) and therefore met the CAT threshold.
19The applicant submits that the reports of his assessors should be given more weight because the respondent’s reports do not account for the evidence of radiculopathy when assessing the spine, and apportionments were made for pre-existing impairments despite the fact that the evidence shows no neck complaints, back issues, or headaches in the two years prior to the accident. The applicant also argues that the respondent’s neurological report does not provide WPI ratings or any reference to the Guides. Additionally, he maintains that although his neurologist was not called to testify, his neurological report is comprehensive as it considers the application of the Guides and provides WPI ratings.
20The respondent relies on the multidisciplinary CAT assessment reports of Viewpoint in which he was assessed by Dr. Oshidari, physiatrist, Dr. Ranalli, neurologist, Dr. Williams, psychiatrist, and Kelly Wendt, occupational therapist (OT Wendt). Dr. Oshidari prepared the executive summary which concluded that the applicant achieved a physical WPI rating of 12% and therefore, does not meet the CAT threshold.
21The respondent submits that the applicant’s expert reports should be assigned less weight as they fail to account for his pre-accident impairments and other life events that impacted his mental health. It argues that although the applicant’s experts refer to his pre-existing impairments, they essentially attribute the entirety of his impairments to the subject accident which is unsupported by the evidence. In contrast, it submits that its experts properly apportioned for the pre-existing impairments and conclude that the applicant has not suffered a CAT impairment due to the accident.
22The following chart highlights the WPI ratings assigned by each party’s assessors under Criterion 6 and 7. Our findings and our rationale will follow. We will not address ratings where the parties agree.
| Impairment | Applicant’s Rating | Respondent’s Rating | Tribunal’s Finding |
|---|---|---|---|
| CRITERION 6 | |||
| Cervical/cervicothoracic spine | 15% | 0% | 5% |
| Thoracis/thoracolumbar spine | 5% | 0% | 5% |
| Lumbar/lumbosacral spine | 10% | 0% | 5% |
| Trochanteric bursitis | 0% | 2% | 2% |
| Medication | 3% | 3% | 3% |
| Headaches Cervicogenic headaches Migraine headaches Tension headaches |
10% 10% 2% 1% |
5% | 5% |
| Mental status impairment | 14% | 0% | 0% |
| Sleep disorder | 3% | 0% | 0% |
| Smell | 2% | 0% | 0% |
| Vertigo | 4% | 0% | 0% |
| Sexual dysfunction | 2% | 0% | 0% |
| Hearing (tinnitus) | 2% | 2% | 2% |
| Vestibular impairment | 4% | 0% | 0% |
| Total WPI: | 54% (rounded to 55%) |
12% | 25% |
| CRITERION 7 | |||
| Mental and behavioural rating | 20% | 10% | 10% |
| TOTAL COMBINED RATINGS | |||
| Combined WPI: | 63% | 21% | 33% |
Spine Impairment
23Dr. Getahun assigned a cervical spine impairment rating of 15% WPI, a thoracolumbar spine impairment of 5%, and a lumbosacral spine impairment of 10%. In contrast, Dr. Oshidari assigned 0% WPI overall for the applicant’s spine rating.
24There are two main considerations with respect to the applicant’s spinal impairment. The first is whether there is sufficient evidence to conclude the presence of radiculopathy. Secondly, we must determine whether the experts appropriately considered the apportionment of pre-existing impairments, if any.
25For the following reasons, we find there is insufficient evidence to conclude there was radiculopathy in the applicant’s cervical and lumbar regions of the spine.
26Dr. Getahun testified that he assigned the 15% cervical and 10% lumbar ratings following the results of an electromyography (EMG) study and report of Dr. Basile dated October 1, 2021. Dr. Basile found that the results of an EMG “point towards” right-sided chronic C5-6 cervical radiculopathy and left-side active L5 lumbosacral radiculopathy. Based on Dr. Basile’s “finding” of radiculopathy in the cervical and lumbar regions, Dr. Getahun placed these impairments in the Guides’ DRE III category and assigned ratings of 15% and 10%, respectively.
27We assign little weight to Dr. Basile’s neurological report because many of his WPI ratings were not supported by the medical evidence and there was insufficient evidence that many of the impairments he rated were caused by the subject accident, which we discuss further below.
28We specifically assign little weight to Dr. Basile’s finding of radiculopathy, relied on by Dr. Getahun, because it is not supported by the medical evidence in this matter and his ratings are not in line with the application of the Guides. For example, despite Dr. Basile’s conclusion of radiculopathy in the cervical and lumbar regions of the spine, his ratings indicate radiculopathy in all three regions of the spine, including the thoracolumbar spine, for which there is no evidence. Also, despite Dr. Basile’s conclusion of radiculopathy, he still assigns 5% for the cervical spine, 0% for the thoracic spine, and 5% for the lumbar spine which is inconsistent with DRE III ratings as proposed by the Guides. Dr. Basile was not called to testify.
29Dr. Getahun testified that Dr. Basile erred when applying the ratings from Tables 72, 73 and 74 of the Guides. However, Dr. Getahun also confirmed that his examination of the applicant did not indicate any neurological findings. He relied on Dr. Basile’s finding of radiculopathy in assigning his ratings. While we agree with Dr. Getahun’s approach of assigning DRE III ratings when radiculopathy is found, the finding of radiculopathy is not in line with a subsequent MRI dated November 6, 2021 of the cervical and lumbar spine. In his report, Dr. Getahun provides details of the applicant’s medical history which he reviewed in preparing his report. Part of this history includes the results of an MRI of the cervical and lumbar regions of the spine, dated November 6, 2021. The MRI found multilevel degenerative changes to the cervical and lumbar spine regions, but no radiculopathy.
30Dr. Getahun did not address the November 2021 MRI findings but recognized that Dr. Jha, treating neurosurgeon, also found no radiculopathy following a March 24, 2022 assessment of the applicant. We note that Dr. Jha’s report indicates he considered the November 2021 MRI report. We also note that Dr. Ranalli, neurologist, also found that the applicant’s neurological examination was normal.
31We therefore find that there is insufficient evidence of radiculopathy in the applicant’s cervical and lumbar spine because of the results of the November 6, 2021 MRI, the inconsistencies in Dr. Basile’s report and because two other neurologists (Dr. Jha and Dr. Ranalli) confirmed that the applicant’s neurological examination was normal with no finding of radiculopathy. We accept that the impairment should be classified in DRE II, and therefore assign a rating of 5% for each region.
32Next, on the question of apportionment, we find there is insufficient evidence to conclude the ratings should be apportioned due to pre-existing conditions.
33Both parties agree that the applicant sustained significant impairments following his 2005 accident, including an injury to his back and a diagnosis of chronic pain. However, the applicant submits that he did not complain of back pain in the two years prior to the accident and that the pain had become manageable. The respondent argues that the applicant’s significant back pain subsisted throughout the years and points to the OHIP summary which shows numerous entries from 2005 up to the date of the subject accident, along with three MRIs in the span of six months in 2014. The respondent also argues that the applicant did not provide his full medical history. Rather, only information pertaining to two years pre-accident was provided to the experts for analysis during their assessments.
34We are not persuaded that apportionment should be made in the case of the spinal impairment. The Guides state that in cases where apportionment is required, the analysis must consider the nature of the impairment and its possible relationship to each alleged factor, and it must provide an explanation of the medical basis for all conclusions and opinions. Section 2.3 of the Guides uses the example of a spine impairment where it states that the current spine impairment would be estimated, and the impairment of any pre-existing spine problem would also be estimated. The pre-existing estimated impairment would then be subtracted from that of the present impairment.
35We acknowledge the spinal impairments caused by the applicant’s 2005 and 2016 accidents and recognize that he continued to receive CPP disability, however, we find there is insufficient evidence that his back pain was symptomatic in the two years preceding the subject accident.
36As such, we find there was no pre-existing ratable spine impairment prior to the subject accident and therefore no apportionment should be made. For these reasons, we assign 5% WPI rating for each, the cervical and lumbar spine.
37Regarding the thoracolumbar spine, Dr. Oshidari opined that the impairment fell within the DRE II category but apportioned his pre-accident impairment which also fell within the DRE II category, resulting in a WPI rating of 0%. Dr. Getahun agreed with the DRE II rating but did not apportion for any pre-accident impairment.
38As both experts agree that the impairment to the thoracolumbar spine falls within the DRE II category of the Guides, and our finding that no pre-accident apportionment should be applied, we accept Dr. Getahun’s 5% rating for the thoracolumbar spine.
39In summary, we assign 5% each for the cervical, thoracic and lumbar spine.
Trochanteric bursitis
40Dr. Oshidari found during his assessment that there was a positive finding of right greater trochanteric bursitis and assigned 2% WPI. The applicant does not contest this finding. We therefore accept the 2% WPI.
Headaches
41Dr. Herschorn’s executive summary notes that Dr. Basile provided three potential ratings for headaches being cervicogenic headaches (10%), migraine headaches (2%) and tension headaches (1%). She explains that pursuant to the Guides, she adopted the highest of the three ratings, being 10% WPI. Dr. Oshidari assigned a rating of 5% WPI.
42We prefer the rating of 5% by Dr. Oshidari. We find that this rating is more in line with the medical evidence before us. Dr. Oshidari took into consideration the applicant’s pre-existing migraine headaches but recognized that these headaches worsened immediately after the subject accident.
43In his testimony, Dr. Oshidari discussed Dr. Basile’s 10% rating for cervicogenic headaches due to greater occipital neuralgia and noted that no other assessor had reported this abnormality. Dr. Oshidari also considered that the applicant had at least two pre-existing concussions with significant traumatic brain injury severe enough that he was not able to return to work since the 2005 accident. Although Dr. Oshidari found no signs to suggest greater occipital neuralgia, he gave the applicant the benefit of the doubt and provided an impairment rating for headaches by analogy. Based on the Guides, he provided an impairment rating by analogy of 5% WPI.
44We accept Dr. Oshidari’s 5% rating for headaches.
Vertigo and vestibular impairment
45Dr. Basile assigned 4% for vertigo and 4% for vestibular impairment. Dr. Oshidari assigned 0% for both and explained that no other assessor discussed inner ear involvement, or cerebral dysfunction contributing to vertigo as a result of the subject accident. Dr. Oshidari opined that if there is vertigo, it could be due to the significant brain injury of 2005 or the head injury in 2016.
46Pursuant to the Guides (4th edition, p.228), associated symptoms of vertigo include nausea, vomiting, headache, fear of movement, ataxia, and nystagmus. The Guides also state that to classify a potential vertigo or vestibular impairment, a physician must establish a firm diagnosis based on carefully obtained history, thorough examination, and the use of appropriate objective tests, supplemented by sound clinical judgment.
47Dr. Basile found that the applicant’s vertigo and vestibular impairment fall within Class 2 (Guides, 4th edition, p.229). In order to classify an impairment as a Class 2, the following symptoms need to be present: (a) signs of disequilibrium are present with supporting objective findings and, (b) the usual activities of daily living are performed without assistance, except for complex activities such as bicycle riding or certain types of demanding activities related to the patient’s work, such as walking on girders or scaffolds.
48We do not accept Dr. Basile’s ratings. Dr. Basile does not point to any complaints of nausea, vomiting, clumsiness, or unusual eye movements. He did not conduct any testing and did not provide a diagnosis. All of these are requirements for a vertigo/vestibular impairment rating pursuant to the Guides. In addition, the evidence also shows that the applicant continued to drive his wife to work and his children to school regularly, which we find to be a complex activity. In addition, we find that providing a rating for both vertigo and vestibular impairment would be duplicative.
We reject the balance of the ratings assigned by Dr. Basile
49We do not accept Dr. Basile’s ratings for mental status impairment (14%), sleep disorder (3%), smell (2%), and sexual dysfunction (2%) because there is no compelling medical evidence to support that the applicant sustained these impairments as a result of the accident.
50The Guides define a “mental impairment” as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. During his assessment, Dr. Basile states that the applicant’s mental complaints described features of depression and anxiety and the applicant would be following up with a psychiatrist in this regard. We do not find that Dr. Basile’s observations without further reasons warrant a rating for mental status impairment.
51Overall, we find that Dr. Basile does not sufficiently justify the reasons for his ratings in his report. Dr. Basile observed that the applicant complained of a loss of smell but there is no further compelling information to support a 2% rating. Further, although we acknowledge that the applicant had issues with sleep and experienced sexual dysfunction, we find there is not sufficient medical evidence to support that these issues are as a result of the subject accident. Rather, the evidence supports that the applicant had these issues prior to the accident. Additionally, he was taking anti-depressants which, as Dr. Seyone, neuropsychiatrist, explains in her clinical notes and records, cause sexual dysfunction, and there was no trauma to the genital area or any spinal cord injury that would explain the sexual dysfunction was caused by a physical impairment.
52For the reasons discussed above, we assign 5% for the cervical spine, 5% for the thoracic spine, 5% for the lumbar spine, 2% for trochanteric bursitis, 3% for medication, 5% for headaches and 2% for hearing (tinnitus) for a total physical WPI rating of 25%. As a result, we find that the applicant does not meet the CAT threshold under Criterion 6.
The applicant is not CAT impaired under Criterion 7
53To 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% WPI threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the Guides, 6th edition, 2008, and is combined with the 4th edition of the Guides using the Combined Values Table.
54To 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.
55The applicant relies on the assessment of Dr. Hasan who diagnosed him with Somatic Symptom Disorder (predominantly pain, persistent, moderate), Major Depressive Disorder (moderate) and Post-Traumatic Stress Disorder. Dr. Hasan administered the three scales outlined in Chapter 14, which, when converted into a total WPI, equalled 20%.
56The respondent relies on the assessment of Dr. Williams who diagnosed the applicant with Somatic Symptom Disorder (with predominant pain, persistent) and Major Depressive Disorder (single episode, moderate). Dr. Williams’ scores on the psychiatric scales, when converted into a WPI, equalled 15%.
57The results stemming from the administration of the three scales are as follows:
| Assessor | GAF | PIRS | BPRS | WPI % |
|---|---|---|---|---|
| Dr. Hasan | 15% | 20% | 40% | 20% |
| Dr. Williams | 10% | 10% | 30% | 10% |
58We reject both Dr. Hasan and Dr. Williams reports. We find that Dr. Hasan’s ratings do not account for the applicant’s pre-existing psychological impairments or other life events, in particular, the tragic murder of his mother which the applicant testified and reported continues to be a source of his mental health issues. We also do not accept Dr. Williams’ ratings because she did not testify or provide explanations for her ratings.
59In any event, we note that even if we accept Dr. Hasan’s mental and behavioural rating of 20% WPI, and combine it with the total physical WPI found above (25%), this would result in a combined physical and psychological WPI of 40% which is below the 55% WPI threshold.
60As a result, we find that the applicant has not met his onus in proving on a balance of probabilities that he meets the 55% threshold to qualify for CAT status under Criterion 7.
The applicant did not sustain a CAT impairment under Criterion 8
61In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the 4th edition of the Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’ useful daily functioning. The Guides set out the four spheres of functioning and the levels of impairment as outlined 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 | |||||
| Adaptation (Deterioration in a work-like setting) |
62As noted above at paragraphs 55 and 56, both parties’ experts diagnosed the applicant with psychological disorders.
63The applicant relies on the reports of OT Amchislavsky and Dr. Hasan, psychiatrist, who concluded that the applicant had three marked impairments under Activities of Daily Living (ADL), Social Functioning, and Adaptation, and a mild impairment under Concentration, Persistence and Pace.
64The applicant submits that prior to the subject accident, he was relatively stable from a psychological perspective. He concedes that he had previous life stressors and pre-accident psychological impairments but at the time of the subject accident his marital issues were relatively stable; he had moved back with his family, was seeing his childhood friends on a monthly basis, and was managing his issues with his treatment providers and medication. He argues that the observations and opinions of his assessors should be preferred because their findings are more in line with the applicant’s state of functioning in all four spheres. Further, the applicant submits that the respondent did not call its expert psychiatrist as a witness to testify and explain her findings.
65The respondent relies on the ADL functional assessment and community functional assessment reports of OT Wendt, and the psychiatric report of Dr. Williams who determined that the applicant had moderate impairments in ADL, Adaptation, and Concentration, Persistence and Pace, and a mild impairment in Social Functioning.
66The respondent submits that the opinion of its assessors should be given more weight because Dr. Hasan’s findings are based in part from inaccuracies made in OT Amchislavsky’s report, and Dr. Hasan’s observations and findings are not in line with the medical documentation. More specifically, the respondent submits that Dr. Hasan’s report does not consider the applicant’s mental health upwards trajectory as reported by his treating health professionals prior to Dr. Hasan’s assessment and does not apportion for the applicant’s pre-existing psychological impairments.
67Overall, we prefer the occupational therapy findings of OT Wendt over those of OT Amchislavsky because we find the reports of OT Wendt were more thorough as they were conducted over two-days (approximately three hours and forty minutes on the first day and three hours and thirty minutes on day two) versus the approximate two-and-a-half-hour assessment over one day completed by OT Amchislavsky. We find that OT Wendt obtained more functional data and a more fulsome picture of the applicant’s presentation.
68We also assign less weight to Dr. Hasan’s report of May 15, 2023 because we find his findings are not supported by the medical evidence. Dr. Hasan concluded that the applicant’s prognosis was guarded at the time of the assessment. He stated that it had been more than two years since the accident and the applicant had made no significant recovery. He opined that the applicant’s depression had become severe and was treatment resistant.
69We find Dr. Hassan’s prognosis is not supported by the medical documentation. The evidence shows that in the summer of 2022, the applicant began receiving cortisone injections in his lower back. By October 2022, he reported to his treatment provider, iScope, that his pain had improved by 80% to 90%. By March 2023, the applicant’s psychiatrist, Dr. Seyone, noted improvement in the applicant’s mood, which was also confirmed by Dr. Gale (the applicant’s treating psychologist). This resulted in the applicant requesting to be taken off Clonazepam. The applicant also reported to Dr. Seyone that he was spending significant time with his children which gave him purpose, and although his chronic pain continued, he had more energy and motivation. Further, Dr. Gale’s consultation report of March 14, 2023, notes that the applicant’s depression was currently in remission. In September 2023 the applicant had stopped taking all medication except for Propranolol. In our view, the records of the applicant’s psychological treatment providers do not support Dr. Hasan’s opinion that the applicant’s condition had become worse or was treatment resistant.
70We find that the applicant was in an upward trajectory regarding his mental health from the summer of 2022 until the date of the applicant’s experts’ assessments. However, he was then involved in another motor vehicle accident in October 2023 which resulted in minor injuries and aggravated his back and neck pain.
71In addition, we find Dr. Hasan did little to justify his ratings during his testimony and his findings are heavily based on the assessment of OT Amchislavsky and the applicant’s self-reports. Dr. Hasan conceded in his testimony that any documentation noting improvement in the applicant’s mental health status was important for him to consider in the context of his assessment, but he stated that he still based his findings on what the applicant communicated to him on that day.
72We are also not persuaded that Dr. Hasan considered the applicant’s pre-accident psychological condition when assigning his ratings or that he attempted to apportion his ratings based on the applicant’s various life stressors. During cross-examination, Dr. Hasan acknowledged reviewing the applicant’s medical history but did not recall whether he was aware of the applicant’s diagnosis of major depressive disorder six months prior to the subject accident, or his pre-accident suicidal ideations. We note that in July 2022, the applicant reported continued unresolved grief issues related to his mother’s violent death to Dr. Gale, which he acknowledged contributed to the chronicity of his depression. We also note that he also unexpectedly lost his father in the summer of 2022 due to COVID-19, less than a year prior to Dr. Hasan’s assessment.
73As previously noted, Dr. Williams did not testify. As such, and without further explanations for her findings, we do not assign any weight to her report.
Activities of Daily Living (ADL)
74We find that the applicant has a moderate impairment in the sphere of ADL as a result of his accident-related psychological impairment.
75The Guides (4th edition) specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
76Prior to the accident, the applicant testified he was independent in all his ADLs. Post-accident, he attempts to complete his self-care and ADLs independently but it takes him longer, he has no motivation and it aggravates his pain. At times, he requires assistance with household chores from his children and a neighbour. Following the accident, he no longer enjoys leisure activities such as drawing with his son or playing cricket. He reported that the only thing that “stuck to him” after the accident was listening to music.
77Dr. Hasan’s report and his marked impairment rating rely on OT Amchislavsky’s report. Dr. Hasan notes that the applicant remains unable to complete many of his previous household responsibilities such as assisting his wife with cooking, cleaning and laundry. Dr. Hasan’s conclusions are not supported by OT Amchislavsky’s report which notes that prior to the accident his spouse was mainly responsible for all of the cooking, housekeeping and homemaking activities and the applicant was responsible for the exterior maintenance of the home, such as snow removal.
78The applicant explained to OT Amchislavsky that since the subject accident, his spouse was also having difficulty doing her activities so he would attempt to help her with the cooking, cleaning, and other responsibilities, but is limited in doing so.
79We note that two months following the subject accident, the applicant reported to Dr. Waxer, psychologist, that he was currently able to manage 50% to 60% of his household responsibilities. He reported that he continued with his responsibilities such as snow removal, although at a slower pace and often with the assistance of a neighbour.
80The applicant also reported to OT Amchislavsky that he has resumed his personal care activities, aside from toenail clipping, but requires additional time and often lacks the motivation to shower, shave or brush his teeth. He testified he could go a day or two without grooming.
81The applicant experiences sleep disruptions due to pain and accident-related flashbacks and nightmares he gets on occasion. Although we acknowledge that part of the applicant’s sleep issues were caused by the accident, we find that the applicant’s issues with sleep also pre-existed the subject accident. We note that in May 2020, six months prior to the accident, the applicant was referred to a sleep study.
82The applicant experienced driving anxiety following the subject accident. However, by March 2023, he reported to Dr. Seyone that he was spending a significant amount of time on the road chauffeuring his children to school, to work and to extracurricular activities. The applicant reported to Dr. Gale in March 2023 that “he is feeling comfortable driving now and is spending a significant time on the road.”
83We find that the applicant’s psychological impairments are not marked as Dr. Hasan suggests. Rather, there has been a reduction in some, but not all, useful functioning. For any household responsibilities, primarily snow removal, the applicant can complete it but at a slower pace and sometimes requires assistance. He can do the same for most of his self-care tasks although he sometimes lacks the motivation. Although he suffered from driving anxiety following the subject accident, by March 2023, the applicant was comfortable driving.
84For the above reasons, we find that the applicant has a Class 3 moderate impairment.
Social Functioning
85We find that the applicant has a mild impairment in the sphere of social functioning as a result of his accident-related psychological impairment.
86According to the Guides, this area of social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals such as family and friends, neighbours, clerks and others. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.
87The applicant testified that despite his marital separation, the family was living together under one roof with the applicant living downstairs and his spouse and children living upstairs. He also testified that he was spending time with his grandchild. He reported having a positive relationship with his wife and children. He reported to OT Amchislavsky that he predominantly speaks with his family when he requires assistance with ADLs, however, as noted above, he reported that he was spending a significant amount of time with his children as of March 2023.
88The applicant also testified that prior to the subject accident, he would spend time with his childhood friends or have a “boys night out” but noted that these gatherings were sporadic. He would also attend Alcoholic Anonymous meetings and on occasion, family gatherings. Following the accident, he became socially isolated, with poor energy levels. He reported to OT Amchislavsky that he stays connected with friends/family on social media, but only when he is “in the mood”. We find that the applicant’s lack of socializing with his friends is partly due to the subject accident, partly due to the continued grieving of his mother’s and father’s passings (as he reported to OT Amchislavsky), and partly due to the family’s decision to move to another city approximately one month prior to the subject accident.
89Regarding other family members, the applicant testified that following his mother’s murder in 2017, he had conflict with his brother, and he reported to treatment providers that after his father’s death, his relationship with his brother grew worse as well as with certain other family members.
90We find that the applicant experienced more social isolation since the subject accident, which we attribute, in part, to the accident but also to other life stressors. However, we find that the evidence supports that his relationships with his wife and children are positive and he spends quality time with his children and grandchild. He no longer spends time once a month with his friends which we also attribute, in part, to the subject accident. For these reasons, we find that the applicant has a mild impairment in social functioning.
91Having found that the applicant suffers a moderate impairment in the sphere of ADLs, and a mild impairment in Social Functioning, the applicant does not meet the CAT threshold under Criterion 8. Consequently, it is not necessary to address the applicant’s ratings for Adaptation.
92Although we find that the applicant sustained impairments as a result of the accident which have had a negative impact on his life, we do not find that these impairments meet the CAT threshold under Criterion 8.
The applicant is not entitled to any of the medical benefits in dispute
93The parties agree the non-CAT limit has been exhausted. Since we have determined that the applicant did not sustain a CAT impairment, he is not entitled to the medical benefits in dispute.
The applicant is not entitled to interest
94Interest applies on the payment of any overdue benefits, pursuant to section 51 of the Schedule. Since we have not determined that any benefits are overdue, no interest is payable.
The applicant is not entitled to an award
95The 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.
96The applicant did not make submissions or direct us to any evidence in support of his claim for an award. In light of our decision in this matter, the applicant is not entitled to an award.
ORDER
97For all of the above reasons, we make the following order:
i. The applicant did not sustain a CAT impairment.
ii. The applicant is not entitled to any of the medical benefits claimed, interest or an award.
iii. The application is dismissed.
Released: September 17, 2025
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Rebecca Hines
Adjudicator
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Trina Morissette
Vice-Chair