Licence Appeal Tribunal File Number: 23-014178/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:
Aleksandr Bilak
Applicant
and
Certas Home and Auto Insurance Company
Respondent
AMENDED DECISION
PANEL:
Harry Adamidis, Member
Henry Harris, Vice-Chair
APPEARANCES:
For the Applicant:
Shane Henry, Counsel
Nitish Bali, Counsel
Fabio Longo, Counsel
For the Respondent:
Jean-Claude Rioux, Counsel
Heena Kapoor, Counsel
Court Reporter:
Guido Riccioni
Heard by Videoconference:
June 9–13 and 16, 2025
OVERVIEW
1Aleksandr Bilak (the “applicant”) was involved in an automobile accident on August 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Certas Home and Auto Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 21, 2023 to date and ongoing?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3At the start of the hearing, the applicant withdrew issues 3-12 as listed in the case conference report and order dated May 6, 2024 (the “CCRO”).
RESULT
4The applicant has not established that he sustained a catastrophic impairment, as defined by the Schedule under Criterion 8.
5The applicant has not established entitlement to IRB, interest or an award.
6The application is dismissed.
PROCEDURAL ISSUES
7Prior to the hearing, the applicant filed a motion dated February 24, 2025 seeking an order to amend his witness list set out in the CCRO. Specifically, he sought permission to call 5 substitute witnesses from the 10 witnesses listed in the CCRO. At the hearing, the applicant advised that he was only seeking to call a total of 8 witnesses, being 4 of the current witnesses listed in the CCRO and 4 substitute witnesses. The applicant submitted that the substitute witnesses comprised of:
i. 3 lay witnesses who were necessary to provide evidence on different spheres of his functioning relevant to proving his entitlement to a catastrophic impairment determination; and
ii. Dr. David Lipson, physiatrist and chronic pain specialist, who assessed the applicant and would be able to testify as to his physical injuries and impairments.
8The respondent did not object to the applicant’s proposed substitution of witnesses and did not identify any prejudice that it would experience if the motion was granted.
9We granted the applicant’s motion on the basis that not allowing the amendment would prejudice the applicant in terms of presenting his case whereas no prejudice was identified by the respondent and it took no position on the motion. Further, as both parties agreed the hearing could be completed in one less day than was scheduled as the applicant had withdrawn several issues, we found that the amended witness list would allow for an efficient and timely resolution of the merits of the hearing.
ANALYSIS
The applicant has not sustained a catastrophic impairment under Criterion 8
10We find the applicant has not established that he has sustained a catastrophic impairment as defined by the Schedule for the reasons that follow.
11The applicant seeks a catastrophic (“CAT”) impairment determination under s. 3(2)(f) of the applicable version of the Schedule (i.e. prior to the 2016 amendments) as the accident occurred before June 1, 2016, referred to as Criterion 8. The applicant bears the burden of proof on a balance of probabilities standard.
12In order to meet the threshold for CAT status under Criterion 8, an individual must have sustained at least one marked (class 4) impairment or one extreme (class 5) impairment out of the four spheres of functioning as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “Guides”).
13Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four areas or “spheres” of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
14The four spheres of functioning, five classes of impairment and rating criteria set out in the Guides are 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 | |||||
| Adaption (in a work-like setting) |
15The parties’ catastrophic assessors gave the following ratings:
| Sphere | Applicant | Respondent |
|---|---|---|
| Activities of Daily Living | Class 4 | Class 3 |
| Social Functioning | Class 3 | Class 3 |
| Concentration, Persistence, and Pace | Class 3 | Class 3 |
| Adaptation | Class 4 | Class 3 |
16The applicant has not satisfied us that he meets the CAT threshold under Criterion 8 as we do not find he has a Class 4 marked impairment in either of the areas of activities of daily living or adaptation, which we will address now.
Activities of Daily Living (“ADL”)
17We find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of ADL.
18The Guides specify that activities of daily living include such activities as 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. 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.
19The applicant relies on the assessments dated August 16, 2024 and February 14, 2025, completed by Dr. Konstantine Zakzanis, neuropsychologist, and an in-home functional reassessment report dated March 27, 2024 of Rhoda Breen, occupational therapist. Dr. Zakzanis opined that the applicant had a marked impairment in the areas of ADL and adaptation.
20The respondent relies on the assessments dated August 23, 2023, completed by Dr. Stephanie Wiesenthal, psychiatrist, Dr. Yuri Marchuk, physiatrist, and Avi Kaplun, occupational therapist. Dr. Wiesenthal determined that the applicant had a moderate impairment in each of the four spheres of functioning.
21Both Dr. Zakzanis and Dr. Wiesenthal found the applicant to have accident-related diagnoses of somatic symptom disorder with predominant pain, and major depressive disorder of moderate severity. Dr. Wiesenthal noted that pre-accident, the applicant had a history of neck pain and stiffness which the applicant attributed to the temperature of his pre-accident employment location, however, he was not experiencing depression and anxiety. She found there was significant exacerbation of pain post-accident. Dr. Zakzanis also diagnosed the applicant with an adjustment disorder with anxiety. Given the commonality of two of the diagnoses of the applicant and respondent’s assessors, we find that the applicant suffers from a mental or behavioural disorder as a result of the accident.
22The applicant testified that he can still do the same ADLs that he was doing before the accident, but that it sometimes causes him frustration because emotionally he knows he can do better. For example, he now goes to the gym three days per week whereas before the accident he went five or more times per week. He can bench press 135 lbs now, whereas he used to bench press over 200 lbs pre-accident. We find this account demonstrates that the applicant is capable of initiating activities that are meaningful in the areas of recreational activities, ambulation, travel, communication and self-care. The applicant also testified that he continued to drive a car post-accident, including regularly driving for nearly two hours between Collingwood and Toronto to visit his girlfriend, who he maintained a romantic relationship with for eight years post-accident. Engaging in activities at a reduced level compared to pre-accident still demonstrates useful functioning. It shows that his useful functioning is reduced but not significantly impeded.
23The applicant lives with his aging parents and moved in with them approximately six weeks prior to the accident. He shares the laundry, cleaning, washing the dishes, and garbage disposal duties with his parents. He does grocery shopping. He makes his bed daily and changes his sheets every two weeks.
24The applicant’s girlfriend testified that after the accident their sex life was less active, the applicant prioritized sleep and they would sleep in separate beds due to his need to have the pillows a particular way and that she was not aware of him engaging in any social activities after the accident other than going to the gym.
25We find the evidence shows the applicant has useful function and is capable of initiating without supervision or direction in important areas of ADL, such as self-care, personal hygiene, communication, ambulation, travel and recreational activities. His psychological disorders have some impact on sexual function, sleep, and social activities. Overall, the evidence shows that his impairment levels are compatible with some, but not all useful functioning. For these reasons, we find that the applicant is moderately impaired in the area of activities of daily living.
26Accordingly, we find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of ADL.
Adaptation
27We find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of adaptation.
28The Guides specify that adaptation is the functional ability to adapt to stressful circumstances in work or work-like settings. Deterioration or decompensation in work or work-like settings refers to the repeated failure to adapt to such stressful circumstances, in which an individual may withdraw from the situation or experience an exacerbation of signs and symptoms of a mental disorder. The person may decompensate or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.
29Pre-accident, the applicant worked in IT as a technician systems administrator in Toronto. His job required him to sit at a desk with a computer and perform IT duties, including servicing computer users and performing software upgrades. He elected to not renew his work contract which ended on June 30, 2015 in order to move to Collingwood to live with and take care of his aging parents prior to the accident on August 13, 2015.
30In Dr. Zakzanis’ first s. 25 CAT neuropsychology examination report dated August 16, 2024, he rated the applicant as having a moderate impairment in the area of adaptation. In the February 24, 2025 re-examination report of Dr. Zakzanis, he updated his impairment rating of the applicant from moderate to marked for adaptation. This re-examination report is based on a follow up interview with the applicant on February 19, 2025. In coming to this updated rating, Dr. Zakzanis noted that, while he was mindful of the failing health of the applicant’s parents playing a contributory role, he based his updated rating on the applicant’s more expansive narrative of work and work-like tasks being significantly impeded by ongoing mental behavioural impairment.
31Dr. Wiesenthal’s August 23, 2023 IE CAT psychiatric examination report rated the applicant as having a moderate impairment in the area of adaptation. Dr. Wiesenthal had previously completed a psychiatric assessment of the applicant on November 12, 2020. In the August 23, 2023 report, Dr. Wiesenthal chronicled other non-accident related stressors, including a subarachnoid hemorrhage in June 2019, a sinus infection in 2020 that led to a dependence on a prescription sleeping pills which was overcome later that year, feelings of isolation during the time of COVID-19 lockdowns, and struggling with being overwhelmed by the responsibility to care for his parents.
32Dr. Wiesenthal also referred to the concurrent IE CAT occupational therapy situational assessment report dated August 23, 2023 of Mr. Kaplun, occupational therapist. The applicant was able to read, comprehend, and respond adequately to written instructions. He displayed good safety judgement and generally worked at a good pace. He did not require any ambulatory aides or environmental supports when standing or ambulating. Mr. Kaplun noted in conducting cognitive testing that the applicant generally worked at a good pace, presented with very good problem solving for the tests completed, and did not display any inappropriate behaviour over the course of the evaluation.
33We find that the opinion of Dr. Wiesenthal more closely aligns with all of the evidence of the applicant’s functional abilities in the area of adaptation than does the opinion of Dr. Zakzanis in his re-examination report. As detailed above, the applicant has the functional ability to drive a vehicle, shops for groceries regularly, shares responsibility for laundry, cleaning, and garbage disposal duties with his parents, and attends to his personal self-care and recreational activities, including going to the gym three days per week. Despite being faced with various non-accident related stressors listed in Dr. Wiesenthal’s report, the applicant has maintained these ADLs. As well, we find that his efforts to care for his elderly and unwell parents since the accident shows adaptation in a work-like settings. This would include the need to make decisions relating to the care of his parents, scheduling and attending medical appointments and other tasks, and interacting with medical staff and administrators. Overall, his impairment levels are compatible with some, but not all useful functioning. For these reasons, we find that the applicant is moderately impaired in the area of adaptation.
34Accordingly, we find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of adaptation.
Social Functioning
35We find the applicant has not sustained a marked impairment under the domain of social functioning.
36The Guides specify that the factors to consider under the social functioning domain are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities are seen as strengths in social functioning.
37It is agreed between the parties that the applicant did not sustain a marked or extreme impairment under the domain of social functioning and on the evidence before the Tribunal, we see no reason to interfere.
Concentration, Persistence, and Pace (“CPP”)
38We find the applicant has not sustained a marked impairment under the domain of CPP.
39The Guides specify that CPP refers to the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. In activities of daily living, concentration may be reflected in the ability to complete everyday household tasks. Deficiencies in CPP are best noted from previous work attempts or from observations in work-like settings. The Guides specify that psychological tests are useful in assessing intelligence, memory and concentration. Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.
40It is agreed between the parties that the applicant did not sustain a marked or extreme impairment under the domain of CPP and on the evidence before the Tribunal, we see no reason to interfere.
CAT Criterion 8 Conclusion
41Without at least one marked or extreme impairment, the applicant cannot meet the minimum required to be found catastrophically impaired.
42Accordingly, for the reasons set out above, we find that the applicant has not proven on a balance of probabilities that he sustained a catastrophic impairment under Criterion 8.
The applicant is not entitled to IRB
43We find the applicant has not established entitlement to IRB.
44To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving on a balance of probabilities that they meet the test.
45To receive payment for a post-104 week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
46The applicant submits that from 2008 until June 30, 2015, approximately six weeks prior the accident, he worked as an IT technician systems administrator in Toronto. He testified that he elected not to renew his work contract. Although not employed at the time of the accident, there is no dispute that the applicant was employed for at least 26 weeks during the 52 weeks before the accident, thus satisfying the alternative condition under s. 5(1).
47Starting with the pre-104 week IRB, the applicant testified that his job required him to sit at a desk with a computer and perform IT duties, including providing systems support for Apple computer users at the company. This role included performing software upgrades and handling digital printing. The position required him to frequently be in a computer server room that had air conditioning which he complained would blow cold air on him and caused him to suffer neck pain.
48The applicant’s former manager, John Hallows, testified tat the applicant worked as an IT technician. His job duties included helping to manage the computer systems, setting up new computers, installing software, troubleshooting problems, and providing help desk functions such as investigating and fixing issues. His role involved regular interaction with co-workers.
49Based on the testimony of the applicant and his former manager, we find the essential tasks of the applicant’s employment as an IT technician to be siting at a desk with a computer, occasionally walking, performing IT duties of setting up computers and managing software updates, handling digital printing, providing help desk function for computer users, and interacting with colleagues.
50The applicant testified that before the accident stress was something he enjoyed and treated as a challenge. After the accident, he indicated that stress is something he tries to avoid. As noted above, the applicant also testified that he can still do the same ADL that he was doing before the accident, but that it sometimes causes him frustration because emotionally he knows he can do better. He did not otherwise address in his testimony what work tasks or duties he was unable to perform after the accident.
51The Disability Certificate (OCF-3) dated February 29, 2016 was prepared by the applicant’s family doctor, Dr. Mina Tasharofi Kia. It lists neck pain as the only injury as a direct result of the accident. The doctor checked off that the applicant can return to work on modified hours and/or duties, and she indicated in the form that in her opinion, the applicant should be able to gradually return to work and see if he can tolerate. In her testimony, Dr. Kia stated that she did not include mental health in the OCF-3, as it is her practice to not include it where a patient denies mental health issues. Further, she testified that she was not certain the applicant would qualify for a diagnosis of depression.
52The applicant questioned Dr. Kia on her clinical notes and records (“CNRs”) of December 2, 2017 which included a note that he “has been feeling depressed in the last couple of years after the accident and getting progressively worse. Does have anxiety and can worry about his health too much”. Dr. Kia testified that these statements were a summary of what the applicant was telling her at the time. The CNRs also indicated that the applicant left his job in 2015 “to try to care of himself better and hasn’t been able to go back to his job”.
53Dr. Kia’s CNRs of April 29, 2019 indicate that he was going through a lot of stress as his mother was sick, that he does regular exercises and stretches, and that he is still not ready to work as he continues to get angry quickly and has trouble as a result in communications with people and socializing. Her notes assess the applicant with depression since the accident with chronic pain.
54We find that these CNRs are not persuasive in considering the pre-104 week IRB period which ended in August 2017, as both notes are after this period and thus do not represent contemporaneous evidence. Indeed, the OCF-3 prepared by Dr. Kia during the relevant period post-accident, indicated only a physical injury of neck pain as a result of the accident. Further, other than her assessment in the CNRs of April 29, 2019, Dr. Kia notes the statements were self-reporting by the applicant at the time.
55In addition, in addressing the OCF-3 listing a physical injury of neck pain, the respondent arranged s. 44 assessments. In the December 16, 2016 s. 44 physiatry examination report of Dr. Michael Lang, the doctor found there was no objective medical evidence of an accident-related physical or neurological impairment that would be expected to cause the applicant to suffer a substantial inability to perform the essential tasks of his previous employment. Dr. Lang recommended the applicant consider returning to employment at a different facility where he would not be exposed to cold air conditioning that the applicant feels triggered his pre-existing chronic neck pain.
56We find the report of Dr. Lang to be persuasive, as he conducted an independent examination and testing of the applicant, as well as documentary review of his medical history, in reaching his opinion on the applicant’s ability to perform the essential tasks of pre-accident employment. As well, Dr. Lang noted in his report that the applicant reported that he had feeling progressively depressed about his current situation. In his testimony, Dr. Lang indicated that depression was not within his scope to diagnose, but he included it in his report as the applicant had not seen as psychologist or psychiatrist. While the applicant submits that the respondent should have undertaken a s. 44 psychological examination in light of this reported symptom, it is the applicant who bears the onus of establishing that he meets the entitlement test and not the obligation of the respondent to disprove.
57On the medical evidence, we find the applicant has provided little evidence to objectively demonstrate that he could not substantially perform the essential tasks of his pre-accident employment.
58For these reasons, we find the applicant has not established entitlement to pre-104 week IRB.
59With this finding of not satisfying the “substantial inability” standard, it follows that we find the applicant has not established an ongoing entitlement to the benefit of post-104 week IRB under the higher standard of “complete inability”.
60Accordingly, we find on a balance of probabilities that the applicant has not established that he is entitled to IRB.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
62The 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.
63As no benefits are overdue, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Reg. 664. Therefore, no award is payable.
ORDER
64For the reasons outlined above, we order that:
i. The applicant has not sustained a catastrophic impairment as defined by the Schedule under Criterion 8;
ii. The applicant is not entitled to IRB, interest or an award; and
iii. The application is dismissed.
Released: September 29, 2025
Harry Adamidis
Adjudicator
Henry Harris
Vice-Chair