Licence Appeal Tribunal File Number: 23-011001/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:
Shannon Plante
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Jaden Bailey, Litigation Guardian Joseph Obagi, Counsel Chantelle Colangelo, Counsel
For the Respondent:
Martin Forget, Counsel
HEARD: by Videoconference:
June 23-24. 2025
OVERVIEW
1Shannon Plante, the applicant, was involved in an automobile accident on May 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Definity Insurance Company Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
Motion
2On June 20, 2025 the applicant filed a motion seeking the following relief:
a) an Order to exclude the transcripts from a previous Tribunal hearing, which was ordered by the Divisional Court to be reheard before a different adjudicator;
b) an Order to exclude the two previous decisions of Vice-Chair Moore, which were set aside by the Divisional Court on the basis that Shannon Plante was not afforded a fair hearing;
c) an Order to exclude the written particulars of the Respondent on catastrophic impairment.
d) Excluding Transcripts
3At the hearing, the applicant argued that s. 15.1 (1) of the Statutory Powers Procedure Act, R.S.O. 1990 (SPPA) requires the respondent to obtain the applicant’s consent to admit previously admitted evidence, in this case the transcript from the previous Tribunal hearing where the decision was overturned by the Ontario Superior Court of Justice, Divisional Court in Plante v. Economical Insurance Company, 2024 ONSC 7171.
4The respondent submits that the transcript was not admitted at the previous Tribunal hearing, and therefore, does not constitute “previously admitted evidence” within the meaning of s. 15.1 (1) of the SPPA. In reply, the applicant noted that the transcript is previously admitted evidence because it is a transcription of testimony that was in evidence at the previous hearing.
5I agree with the applicant. Section 15.1(2) of the SPPA defines “previously admitted evidence” as follows:
“previously admitted evidence” means evidence that was admitted, before the hearing of the proceeding referred to in that subsection, in any other proceeding before a court or tribunal, whether in or outside Ontario.
6In my view, viva voce evidence falls within the parameters of “previously admitted evidence” because it was heard and considered by the Tribunal. The respondent does not have consent from the applicant to admit this evidence. As such, I find that it is appropriate, under s. 15.1(1) of the SPPA to exclude the transcript from this current proceeding.
b. Excluding Previous Tribunal Decisions
The applicant argued that no weight should be given to the previous Tribunal decision because the Divisional Court found that the previous hearing was procedurally unfair. In her view, allowing the previous decision into evidence would taint this current proceeding.
7I disagree with the applicant because a decision is not evidence. It is an interpretation and analysis of the evidence by another adjudicator. The Tribunal’s previous decision cannot be entered into evidence and weight cannot be given to it, in the manner suggested by the applicant, as this current hearing is a de novo hearing. Consequently, there is no basis to grant this part of the motion.
8Even so, I am allowing the decision to be submitted as case law which is not problematic and entirely appropriate.
c. Excluding Respondent’s Written Particulars
9The applicant argues that the respondent’s particulars are not evidence and should be struck from the record.
10The applicant previously filed a motion requesting a new case conference to identify and clarify the issues. Adjudicator Evans issued a Motion Order, dated May 15, 2025, denying the request for a new case conference. However, the order required the respondent to provide the applicant with particulars of its determination that she is not catastrophically impaired. I agree that the particulars are not evidence. Even so, the Tribunal cannot strike documents simply because they are not evidence. There must be a reason to justify such action. The Tribunal ordered the respondent to create this document. The applicant has not identified any concerns or prejudice with the particulars other than the particulars not being evidence. Given these circumstances, I find that there is an insufficient basis to strike the particulars.
ISSUES
11The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $1,538.44 ($5,130.00 less $3,591.56 approved) for psychological services, proposed by Function Ability in a treatment plan/OCF-18 (“plan”) dated September 10, 2023?
iii. Is the applicant entitled to $680.04 ($5,989.79 less $5,309.75 approved) for case management services, proposed by Branching Out Case Management in a plan dated November 29, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
12The case conference report and order, dated March 20, 2024, lists res judicata as a preliminary issue. The respondent withdrew this issue at the start of the hearing.
RESULT
13The applicant is not catastrophically impaired.
14She is not entitled to the disputed portions of the treatment plans, nor interest.
15The respondent is not liable to pay an award.
PROCEDURAL ISSUES
16The applicant objects to Dr. Rehan Dost, neurologist, testifying at this proceeding. He prepared two reports for the respondent that provide Whole Person Impairment (WPI) ratings of the applicant’s nervous system. Both reports are referenced by the respondent’s expert Dr. James Stewart, general practitioner, in his Catastrophic Impairment Determination Executive Summary, dated June 9, 2023, where the applicant is found to be catastrophically impaired (CAT) under Criterion 7. It appears that the applicant seeks to have these reports stand on their own without any further testimony from Dr. Dost.
17She argues that if the respondent wanted to provide any further evidence to clarify the findings of Dr. Dost’s previous reports, then it could have obtained an addendum report from Dr. Dost. Instead, it seeks to call Dr. Dost as a witness to question him on his findings, and in doing so, obtain a de facto addendum report that the applicant cannot review and consider. She further argues that the respondent’s summary of the witness testimony and the particulars give no indication that the respondent intends to challenge its own expert. In her view, she has not had proper notice of this witness’ testimony and it is procedurally unfair to allow Dr. Dost to testify.
18The respondent argued that both the summary and the particulars gave the applicant a meaningful understanding of why the witness is being summoned. The respondent further argues that it can summons a witness to test their evidence and there is nothing unfair about this.
19The respondent provided the particulars to the applicant on or about May 26, 2025. This document states that the applicant’s post- accident gait and incontinence issues, as reported to Dr. Dost, are inconsistent with other evidence. In my view, this is a clear indication that the respondent intends to challenge Dr. Dost’s ratings for gait and incontinence.
20There is nothing unfair about questioning a doctor who authored a report in evidence. The opposite is true. It is procedurally unfair to prevent a party from testing the evidence of an expert. Doing so improperly infringes on a party’s ability to present its case, to be heard, and to ensure an understanding the evidence.
21In any event, Dr. Dost was on the respondent’s final witness list that was filed with the Tribunal 21 days before the hearing in compliance with Rule 9.4.3 of the Licence Appeal Tribunal Rules, 2023 (Rules). The respondent followed the Rules to have Dr. Dost testify, and in my view, the applicant has not provided a sufficient basis to exclude him from this hearing.
ANALYSIS
Catastrophic impairment (CAT) under Criterion 7
22I find that the applicant does not have a catastrophic impairment as defined under the Schedule for the following reasons.
A 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 (the “Guides”), where the impairment score is combined with a physical impairment rating from Criterion 6 and results in a 55% or more WPI.
23There is one executive summary in evidence. It was prepared for the respondent by Dr. James Stewart, general practitioner, and is dated June 9, 2023. It provides the following WPI ratings:
| Impairment and rating section in the Guides | WPI Rating |
|---|---|
| Cervical Spine Table 70, Chapter 3 |
5% |
| Thoracic Spine Table 70, Chapter 3 |
5% |
| Medications p. 9, Chapter 2 |
3% |
| Gait Derangement Table 36, Chapter 3 |
30% |
| Headache No citation given |
5% |
| Incontinence Table 17, Chapter 4 |
5% |
| Incontinence Table 18, Chapter 4 |
5% |
| Mental and Behavioural Chapter 14, Guides 6th edition |
15% |
| Total: (using the combined values chart of the Guides.) |
56% |
Limitations on the Tribunal’s authority to rate impairments
24The applicant argues that the statutory scheme in s. 25 and s. 44 of the Schedule requires the Tribunal to accept the WPI ratings by experts. She submits that the only decision to be made by an adjudicator is whether to accept the rating of one expert over another. I disagree. Section 25 of the Schedule sets out the means of payment for examinations conducted by the insured. Section 44 establishes the circumstances and requirements that apply to insurer examinations. Neither section requires the Tribunal to accept the WPI ratings in expert reports.
25The applicant also argues that the Tribunal cannot render independent WPI ratings separate from the ratings made by experts because Tribunal members are not specially trained medical experts in catastrophic impairment. Again, I disagree. Under s. 280 of the Insurance Act, 1990, Tribunal members have the authority to resolve disputes between the insured and insurer. Resolving disputes primarily involves considering and weighing evidence within the legislative framework. This is an adjudicative function that does not require specialized medical training. Thus, the Tribunal can accept or reject the WPI ratings of experts, so long as sound reasons are provided.
26For the above noted reasons, I reject the applicant’s argument that I must accept the ratings of experts and cannot make my own independent WPI ratings.
Incontinence
27I find that the applicant should not receive a WPI rating for incontinence.
28In his Catastrophic Impairment Determination Independent Neurology Evaluation, dated June 9, 2023, the respondent’s expert, Dr. Dost, rates the applicant as having a 5% WPI rating the under Table 17 of Chapter 4 of the Guides for urinary dysfunction and another 5% WPI rating for anorectal dysfunction the under Table 18 of Chapter 4.
29The applicant submits that Dr. Dost’s ratings for incontinence should be accepted at face value because he is the only expert to provide a WPI rating for this impairment. In the alternative, the applicant argues that incontinence should be rated according to Dr. Dost’s testimony where he opined that a post-accident exacerbation of both types incontinence would result in a combined 4% WPI rating.
30The respondent submits that Dr. Dost’s rating for incontinence should be given no weight because it was based on the inaccurate information. The respondent further submits that there is no evidence to justify a 4% WPI rating for a post-accident exacerbation of incontinence.
31Dr. Dost’s report indicates that the applicant had pre-existing incontinence issues that became worse after accident:
The claimant did have some urinary stress incontinence. However, post accident it has worsened to both with bladder and bowel. She now requires diapers. This was not an issue before the accident.
32He understood that the applicant had some urinary incontinence before the accident. Following the accident, the impairment worsened to both urinary and bowel incontinence, and the use of diapers. In testimony, he confirmed that the worsening of this impairment is the reason he provides a WPI rating for incontinence.
33The assessment by Tammy Knight, occupational therapist, dated March 14, 2019 states:
Some urinary and stool incontinence. Wears pull-up briefs at all times and requires assistance to clean and change.
34The applicant had urinary and stool incontinence and also required diapers prior to the accident. Dr. Dost testified that there is no difference between the circumstances described above and the self reported post-accident incontinence. He further testified that he would give no rating for incontinence if these facts are correct because there was no post-accident change to this impairment.
35Dr. Dost also testified that if the applicant was using diapers pre-accident but could make it to the washroom in time; and if this worsened after the accident and she could not make it to the washroom on time, then the impairment would have worsened and he would rate the combined urinary and stool incontinence at a 4% WPI rating. The applicant submits, in the alternative, that this 4% WPI rating should be accepted by the Tribunal.
36I give no weight to Dr. Dost’s combined 10% WPI rating for incontinence. An occupational therapist recorded the applicant’s pre-accident stool incontinence and use of diapers. There is no meaningful difference between this and the post accident description of incontinence in Dr. Dost’s report noted above in paragraph 30. As the impairment did not get worse after the accident, there is no basis to rate incontinence as an accident-related impairment.
37I also do not accept the applicant’s submission that she did not soil her diapers until after the accident, and therefore, merits a WPI rating as the accident exacerbated her incontinence. She has not pointed to evidence which supports this argument. Additionally, Ms. Knight’s pre-accident assessment indicates that the applicant “requires assistance to clean and change.” This undermines the applicant’s suggestion that she did soil herself until after the accident.
38As such, I find that the applicant cannot be rated for incontinence because the evidence does not show that this impairment worsened after the accident.
Headaches
39The applicant relies on the Executive Summary and the report of Dr. Dost for the 5% impairment rating for headaches. However, these documents do not identify what section of the Guides was used to make this rating. Consequently, this rating cannot be relied upon because it is not possible to understand how it was formulated.
40If the remaining ratings are accepted, the applicant receives a 48% WPI rating:
| Impairment and rating section in the Guides | WPI Rating |
|---|---|
| Cervical Spine Table 70, Chapter 3 |
5% |
| Thoracic Spine Table 70, Chapter 3 |
5% |
| Medications p. 9, Chapter 2 |
3% |
| Gait Derangement Table 36, Chapter 3 |
30% |
| Mental/Behavioural Chapter 14, Guides 6th edition |
15% |
| Total: (using the combined values chart in the Guides) |
48% |
41Consequently, I find that the applicant is not catastrophically impaired under Criterion 7 as her WPI rating does not meet the necessary 55% threshold.
Psychological Services
42The applicant is not entitled to the disputed portion of this treatment plan.
43The OCF-18 of Michelle Diamond, dated September 10, 2023 was partially denied by the respondent. The respondent’s Explanation of Benefits dated September 18, 2023, states that the dispute arises from the hourly rate of the service provider:
44The applicant relies on A.S. vs. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT) where the Tribunal previously found that psychologists and psychotherapists provide the same type of service, cognitive therapy, and should be paid the same rate. The applicant submits that the identical circumstances exist here as Ms. Diamond is a “registered psychotherapist.” She is providing psychotherapy and should be paid the same rate as other professionals providing the same service.
45The applicant’s submission is incorrect. Ms. Diamond is not a psychotherapist. As noted on the treatment plan, she is a social worker.
46A.S. vs. Aviva Insurance Company is distinguishable as the adjudicator had clear points of reference that allowed him to connect the dots between the qualifications and licencing of psychologists and psychotherapists and conclude that both offer the same service. The applicant has provided no such references here. Therefore, I am unable conclude that a social worker is qualified and able to provide psychotherapy. For this reason, I find that the applicant has not met her burden of establishing her entitlement to the disputed portion of this treatment plan.
Case Management Services
47The applicant submits that if she is not found to be catastrophically impaired, then she is not entitled to the disputed portion of this treatment plan.
48As she has not been found to be catastrophically impaired, she no longer disputes the respondent’s partial denial of this plan. Consequently, I find that there is no dispute for the Tribunal to resolve in regard to this plan.
Interest
49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as there are no overdue payments.
Award
50The respondent is not liable to pay an award.
51The 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.
52The applicant submits that the respondent acted unreasonably when it failed to follow the caselaw in A.S. vs. Aviva Insurance Companyand instead arbitrarily determined the hourly rate for the service provider in the disputed treatment plan for psychological services. Having found that A.S. vs. Aviva Insurance Company is distinguishable from the present matter, I further find that there is an insufficient basis to show that the insurer unreasonably withheld or delayed the payment of this plan.
53The applicant argues that the respondent was unreasonable when it rejected the opinion of its own assessors who determined that she is catastrophically impaired. It should have accepted the findings of their own experts or sought addendum reports. Instead, the respondent prolonged the adjudication of her case in order to wait until the last minute show new evidence to its experts and hope for a change in opinion.
54The respondent’s letter dated June 23, 2023 advised the applicant that the executive summary of Dr. Stewart concluded that she is CAT. It further advised that it was reserving its CAT determination until further evidence could be provided to the CAT assessors.
55The respondent’s letter of July 28, 2023 advised that it was relying on the Tribunal decision dated June 28, 2023. In this decision, the Tribunal concluded that the applicant sustained a whiplash associated disorder (WAD II), whiplash associated headaches, a sprain/strain to the lumbar spine, and an adjustment disorder. The respondent concluded that these accident related injuries could not result in a finding that she is CAT.
56The applicant disagrees with the respondent’s decision to rely on the Tribunal decision, but this does not make the respondent’s adjustment of the applicant’s file unreasonable. The letter of July 28, 2023 gave a clear explanation for why the insurer gave weight to the Tribunal’s findings and concluded that the applicant is not CAT under Criterion 7. Consequently, I am not persuaded that the respondent unreasonably withheld or delayed the payment of benefits.
ORDER
57The applicant is not catastrophically impaired.
58She is not entitled to the disputed portions of the treatment plans, nor interest.
59The respondent is not liable to pay an award.
Released: September 19, 2025
Harry Adamidis
Adjudicator