Licence Appeal Tribunal File Number: 24-014595/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:
Rehan Syed Masood Ahmed
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATORS:
Rebecca Hines
Steve Gilchrist
APPEARANCES:
For the Applicant:
Brandon Pedersen, Counsel
For the Respondent:
Oliver Gorman-Asal, Counsel
Court Reporter:
Siriana Taylor, Professional Court Reporting
Heard by Videoconference:
August 11–15, 2025
OVERVIEW
1Rehan Syed Masoud Ahmed, the applicant, was involved in an automobile accident on January 29, 2021, 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, Security National Insurance Company, 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? Note: Criterion 7 and 8.
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $226.96 per week from September 18, 2023 to ongoing?
iii. Is the applicant entitled to attendant care benefits in the amount of $6,000 per month from August 31, 2021 to ongoing?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3After considering the submissions of both parties and all of the evidence we find:
i. The applicant is deemed to have suffered a CAT impairment under Criterion 7.
ii. The applicant is entitled to post-104 IRBs from September 18, 2023 to date, but is not entitled to payment for failing to file income tax returns pursuant to the Schedule.
iii. The applicant has not established entitlement to ACBs in the amount of $6,000.00 per month from August 31, 2021 to May 8, 2022.
iv. The applicant has established entitlement to ACBs in the amount of $889.21 per month, however, is not entitled to payment of same because the benefit has not been incurred.
v. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
PROCEDURAL ISSUES
Exclusion of Case Law
4The applicant brought a motion seeking to exclude various decisions in the respondent’s book of authorities. He submits that some of the decisions challenges the qualifications of Dr. Shahmalak and Dr. Kumbhare. However, the respondent has not challenged the qualifications of either of these witnesses pursuant to Rule 10.4 of the Licence Appeal Tribunal Rules. The applicant also submits that these decisions are not relevant to the matter before us.
5The respondent submits that it is not challenging the qualifications of the applicant’s witnesses. Instead, it has relied on various case law in support of its position that the Tribunal should give these expert’s opinions little weight based on prior jurisprudence.
6We declined the applicant’s motion to exclude the case law in the respondent’s book of authorities because there are no rules regarding the case law a party may rely on. We instructed the parties that they could address the relevance of any case law in closing submissions.
Applicant’s Attendance at an Insurer Examination (“IE”)
7The respondent brought a motion seeking an order from the Tribunal to stay the proceedings and to compel the applicant’s attendance at an IE. It submits that it requires the applicant to attend an IE because it received a rebuttal report from Dr. Shahmalak in April 2025, and their assessor has advised that they need to see the applicant in-person for a second assessment.
8The applicant argues that his attendance at another s. 44 IE is not reasonably required. Further, the respondent’s second request to compel the applicant’s attendance at an IE cannot be divorced from the respondent’s recent adjournment request which was denied and addressed by the Tribunal in its adjournment order dated August 7, 2025.
9Section 44 of the SABS provides that, as often as is reasonably necessary, an insurer may require an insured person to be examined by one or more regulated health professionals to assist the insurer to determine if the insured person is or continues to be entitled to a benefit. Section 55 (1) of the Schedule provides that an insured person shall not apply to the LAT if the insurer has provided notice requiring an examination under s. 44 of the Schedule. In determining whether a s.44 IE is reasonably required the Tribunal has considered factors such as the timing of the insurer’s request, the prejudice to both sides and whether there are any new issues being raised in the applicant’s claim requiring examination.
10We declined the respondent’s motion to compel the applicant’s attendance at an IE because s.55 of the Schedule does not provide us with the jurisdiction to compel the applicant’s attendance at an IE. The only consequences for an insured’s failure to attend an IE are clearly incorporated in s.55 of the Schedule, and the respondent did not make sufficient arguments addressing same. Further, we agree with the analysis in the Tribunal’s adjournment order regarding the respondent’s delay in making the request for the applicant’s attendance at an IE. We also find the timing unreasonable because its request for the adjournment was made one week prior to the scheduled hearing.
11Finally, we do not find that the applicant’s attendance at an IE is required for the Tribunal to make a fair determination regarding the applicant’s entitlement to an IRB because the respondent’s CAT assessors addressed the post-104 IRBs in their recent reports. Consequently, they had an opportunity to address Dr. Shahmalak’s opinion. Finally, we find that the prejudice of adjourning the proceedings for a period of six months will result in greater prejudice to the applicant versus the respondent’s right to obtain an updated report because it will significantly delay a determination regarding the applicant’s entitlement to accident benefits.
Respondent’s Supplementary Document Brief
12The respondent brought a motion seeking to extend the service of its supplemental document brief which was first served on the applicant on the weekend prior to the hearing. The updated brief contained excerpts from the applicant’s LinkedIn profile and several professional certificates recently obtained by the applicant. It also contained an updated employment file from IKEA along with pay stubs. The respondent submits that although these documents were obtained outside of the deadline provided in the Tribunal’s order they are relevant to the applicant’s post-accident function. It maintains that there is little prejudice to the applicant because this is his LinkedIn profile, and he posted these records.
13The applicant opposed the respondent’s request and argues that these documents were not accessed before August 1, 2025, and is akin to surveillance which was not provided by the deadline in the Tribunal’s order. Further, it would be procedurally unfair to admit these records because it is trial by ambush.
14We declined to exclude the records contained in the supplementary document brief because they are relevant to the issues in dispute. Further, the applicant would have knowledge of these records because they were contained in his LinkedIn profile. However, because of the late service we advised any relevance of these records would go to weight and that the parties could make further submissions on this in their closing submissions.
BACKGROUND
15Prior to the accident, the applicant did not have any significant health issues, aside from a previous right shoulder injury which was healed by the time of the accident.
16On January 29, 2021, the applicant was a passenger in a car that was hit, head-on, causing the discharge of the vehicle’s air bags. He was taken by ambulance to hospital. His major injuries were diagnosed as being a small bowel injury and inter-abdominal hemorrhage, fractured right ulna (wrist), dissection of the bilateral cervical internal carotid arteries and possible pulmonary contusion. He was also diagnosed with a possible concussion. He underwent a laparotomy and small bowel resection, and his wrist was placed in a cast for 6-8 weeks.
17The applicant remained hospitalized for 3-4 weeks before being discharged and stayed with his sister for several weeks while recuperating. He was advised to follow up with both a fracture and stroke clinic. He was referred to neurologist Dr. Malik. Repeat MRI scans of the brain and neck vasculature were performed while a SPECT scan indicated a traumatic brain injury. He was prescribed gabapentin, amitriptyline and hydromorphone for his condition.
ANALYSIS
Has the applicant sustained a CAT impairment as defined by the Schedule?
18The applicant seeks a CAT determination under Criteria 7 and 8 as a result of his accident-related impairments. The applicant bears the burden of proof.
Criterion 7
The applicant sustained a CAT impairment under Criterion 7.
19To qualify under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole-person impairment (“WPI”) threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the Guides, 6th edition, 2008 and is combined with the 4th edition of the Guides using the Combined Values Table.
20To 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.
21The applicant relies on the multi-disciplinary CAT reports of Critical Trauma Therapy (“Critical Trauma”), in which he was assessed by Dr. Kumbhare, physiatrist, Gwen Kakouris, occupational therapist (“OT Kakouris”), and Dr. Shahmalak, psychiatrist with the executive summary completed by Dr. Kumbhare. Critical Trauma concluded that the applicant sustained a 61% WPI rating under Criterion 7 and therefore meets the CAT threshold.
22The applicant argues that the opinions of his CAT assessors should be preferred because his assessments were more thorough. In addition, his assessors applied and explained their WPI ratings pursuant to the Guides. The applicant also submits that the respondent’s CAT assessments should be given no weight because its assessors did not assign or justify their WPI ratings in their reports. Instead, Dr. Meikle assigned the WPI ratings, and that doctor has never seen the applicant. Further, there is evidence that CIRA changed the WPI% ratings without the knowledge or consent of one of the assessors.
23The respondent relies on the multidisciplinary insurer examination (“IE”) CAT reports of CIRA in which he was assessed by Dr. Berbrayer, physiatrist, Dr. Maser, internal medicine specialist, Shahla Kara, occupational therapist (“OT Kara”), Dr. Jwely, psychiatrist and Dr. Power, neuropsychologist, with the executive summary prepared by Dr. Meikle. CIRA concluded that the applicant had a 41-45 WPI%.
24The respondent submits that the reports and evidence of its assessors should be preferred because the applicant’s assessors assigned ratings where there was no evidence of an accident-related impairment. Further, it argues that we should prefer Dr. Maser’s ratings for the gastrointestinal system because he is an internal medicine specialist with expertise in the intestines and digestive system.
25The following chart provides a summary of both parties’ assessors’ ratings and the Tribunal’s findings regarding criterion 7 and our rationale will follow.
Chart 1 – CAT Determination Comparison
| Impairment | Applicant’s CAT Summary | Respondent’s CAT Summary | Tribunal’s Finding |
|---|---|---|---|
| Criterion 7 Physical Impairments | |||
| Cervical Spine | 5% | 5% | 5% |
| Thoracic Spine | 5% | 0% | 5% |
| Lumbosacral Spine | 5% | 5% | 5% |
| Right Upper Extremity | 0% | 9% | 9% |
| Neurologic – Occipital Neuralgia | 3% | 0% | 3% |
| Sleep Disorder | 5% | 0% | 0 |
| Gastrointestinal System | 20% | 15% | 20% |
| Abdominal Wall (hernia) | 0% | 1-9% | 9% |
| Scars | 9% | 0% | 9% |
| Medication | 3% | 3% | 3% |
| Total WPI | 48% | 34-39% | 52% |
| Psychological Impairment | |||
| Mental or Behavioural Impairment | 30% | 10% | 10% |
| Total Combined Ratings | |||
| Total WPI | 65% | 41-45% | 57% |
26We find it unnecessary to analyze those areas where both parties’ assessors agree. Overall, we prefer many of the ratings assigned by Dr. Kumbhare over Dr. Berbrayer because Dr. Berbrayer did not assign the WPI ratings in his report. Instead, Dr. Meikle assigned the WPI ratings which we find was not appropriate because the doctor never assessed the applicant. Nor was Dr. Meikle called to testify to justify the ratings assigned for the various ratings assigned.
Thoracic Spine
27We find the applicant has a 5% WPI rating for the thoracic spine.
28The applicant argues that the 5% WPI rating of Dr. Kumbhare should be preferred over the zero assigned by Dr. Meikle because it was consistent with the impairments sustained by the applicant in the accident and supported by the medical record. Dr. Kumbhare testified that he assigned 5% WPI for the applicant’s thoracic spine because the medical records reviewed by the doctor supported that he sustained a minor injury to his upper back. As a result, he assigned a Category 2 rating of 5% pursuant to Chapter 3.3 (i) of the Guides for a minor injury.
29The respondent submits that there is insufficient evidence to support that the applicant sustained an injury to his upper back. Dr. Berbrayer testified that he did not assign a rating for the applicant’s thoracic spine because he did not complain of upper back pain during his assessment.
30We prefer the 5% WPI rating assigned by Dr. Kumbhare over Dr. Berbrayer because we find his impairment rating was consistent with the other medical evidence before us. For example, the IE reports of Dr. Safir dated July 30, 2021 and August 24, 2023 diagnosed the applicant with strain and sprain of the thoracic spine. There was also reference to the applicant sustaining strain and sprain impairments to the thoracic spine in the other medical records before us. In addition, Dr. Kumbhare examined the thoracic spine, whereas Dr. Berbrayer conceded during cross-examination that he did not because the applicant did not complain of any pain. For these reasons, we prefer Dr. Kumhare’s rating and find that a 5% WPI should be assigned for the thoracic spine.
Right Upper Extremity
31We accept the 9% WPI assigned by Dr. Meikle for the right upper extremity.
32Dr. Kumbhare did not provide an impairment rating for the applicant’s right upper extremity in his assessment, whereas Dr. Meikle assigned a rating of 9% for the applicant’s right wrist fracture and accounted for the re-exacerbation of a prior dislocation of the applicant’s right shoulder. Dr. Meikle’s WPI ratings were based on Dr. Berbrayer’s physiatry assessment. The respondent argues that the Tribunal should not accept the WPI rating assigned by its own assessor because Dr. Kumbhare did not assign a rating for this impairment.
33We accept the 9% WPI assigned by Dr. Meikle because it is undisputed that the applicant sustained a fractured right wrist as a result of the accident and has suffered from functional limitations as a result. Further, Dr. Berbrayer diagnosed the applicant with a re-exacerbation of his pre-existing dislocation of his right shoulder which was under control prior to the accident and examined the wrist and shoulder during his assessment. Further, the applicant testified that he is right hand dominant and following the accident he stopped using his right arm to carry out his daily activities because of wrist pain which resulted in increased pain in his right shoulder which was asymptomatic prior to the accident. In addition, Dr. Berbrayer agreed with Dr. Meikle’s WPI rating of 9%.
34Although we acknowledge that Dr. Kumbhare did not assign a rating for this impairment the doctor discussed the right wrist and shoulder in his assessment and noted that the applicant’s range of motion was restricted. Further, Dr. Kumbhare did not dispute the rating assigned by Dr. Meikle. As a result, we accept the 9% WPI assigned by Dr. Meikle even though he did not testify because it is consistent with the applicant’s accident-related impairment and the medical record before us supports this conclusion.
Occipital Neuralgia
35We accept the 3% WPI assigned by Dr. Kumbhare for occipital neuralgia.
36Dr. Kumbhare testified that he assigned a 3% rating for occipital neuralgia because he diagnosed the applicant with migraine headaches and felt this rating was appropriate. He also relied on the CAT IE report of Dr. Connelly from August 2023 who also diagnosed the applicant with this condition.
37Dr. Meikle did not assign any rating for the applicant’s headaches because the doctor found no evidence that the applicant had neuralgia. Dr. Meikle did not testify to provide a further explanation for this finding.
38We accept Dr. Kumbhare’s rating of 3% WPI for occipital neuralgia because we find Dr. Connelly did diagnose the applicant with chronic headaches with features of migraines and occipital neuralgia. In addition, we find the hospital records shortly following the accident support that he had a haematoma over his right eye and complained of pain in the right temporal region radiating to the sub occipital and posterior neck. As a result, we accept the 3% WPI assigned by Dr. Kumbhare for this impairment.
Sleep Disorder
39We do not accept the 5% WPI assigned by Dr. Kumbhare for sleep disorder.
40Dr. Kumbhare testified that he assigned 5% WPI for sleep disorder based on the applicant’s self-reports of poor sleep. However, Dr. Kumbhare was unable to link the applicant’s sleep disorder to any neurological impairment and his report did little to clarify this point. In contrast, Dr. Meikle assigned 0% WPI because there was no neurological explanation for the applicant’s self-reported sleep issues. Further, Chapter 4/143 of the Guides only permit an impairment rating to be applied to difficulties with sleep/fatigue when it is attributed to neurologic impairment of brain function (Chapter 4/143).
41We find that the applicant has not met his onus in proving the WPI rating for sleep because there was no evidence of a neurological impairment of brain function to justify this rating.
Gastrointestinal System
42We find the applicant has a 20% WPI for the gastrointestinal system.
43Both parties assessors agreed that the applicant’s impairments were a Class 2 impairment from Chapter 10.3, Table 2 of the Guides which comes with an impairment rating of 10 to 24%. However, there was a disagreement regarding the applicant’s percentage within the range. Dr. Maser assigned an impairment rating of 15% and Dr. Kumbhare assigned a rating of 20%.
44The applicant submits that we should prefer the WPI rating assigned by Dr. Kumbhare because he assigned the rating after personally examining the applicant. Further, Dr. Maser admitted during cross-examination that CIRA changed his impairment ratings without his knowledge or consent. The respondent maintains that we should prefer the ratings assigned by Dr. Maser because he is an internal medicine specialist with expertise in the intestines and internal organs. Consequently, he is more qualified to assign the rating.
45We accept the 20% WPI rating assigned by Dr. Kumbhare because the doctor explains why he applied this rating in his report. For example, he determined that the applicant met all three criteria for a class 2 rating. Further, as already noted we find the applicant has consistently reported abdominal and digestive issues post-accident, he had piece of his bowel removed as a result of surgical complications and has reported having a very limited diet as a result. For example, he consumes Ensure, eggs and plain foods so that he does not irritate his stomach or digestive system. We accept the higher rating assigned by Dr. Kumbhare because of the overall impact this impairment has had on the applicant’s life and function.
46Although we would normally assign more weight to the opinion of Dr. Maser because he is an internal medicine specialist with expertise in the intestines and digestive system, we do not in this case. During cross-examination, Dr. Maser admitted that his WPI % ratings in his report were altered by CIRA, the assessment company who compiles the specialist reports and issues the final multi-disciplinary report. Dr. Maser testified that because the applicant had experienced weight gains, the rating for his impairment in this category should be reduced and he assigned a rating in the middle of the range. However, we find Dr. Maser’s CAT report lacked this explanation or any explanation for the WPI% ratings he assigned and as a result we have placed little weight on his opinion. For the above-noted reasons, we accept Dr. Kumbhare’s WPI rating of 20%.
Abdominal Wall
47We find the applicant has a 9% WPI rating for the abdominal wall.
48Dr. Kumbhare did not assign an impairment rating for the abdominal wall. However, Dr. Berbrayer found evidence of a ventral hernia and deferred the rating to Dr. Maser.
49Dr. Maser’s CAT report provided a class 1 impairment rating with a WPI of 9%. During cross-examination, Dr. Maser testified that his initial report contained an error and that his impairment rating should have been 5% not 9%. However, we note that Dr. Maser signed off on the CAT executive summary and an addendum report where this oversight was never corrected.
50In Dr. Meikle’s executive summary he provided a WPI impairment range of 1 to 9%, without explanation. The Guides support that medical experts should assign as precise a rating as possible using their clinical judgment. We reject Dr. Maser’s testimony that he made an error and that his WPI was 5% instead of 9%. Dr. Maser signed off on his initial report which stated that the applicant’s impairment was a class 1 - 9%. At no point prior to the hearing did he issue an addendum report correcting this mistake. We find it inappropriate for Dr. Maser to correct the WPI% rating during his testimony at the hearing where a CAT determination is in dispute. Consequently, we accept his initial rating of 9% WPI because we find the medical record supports that the applicant suffered serious injury to his abdomen as a result of the accident and both Dr. Berbrayer and Dr. Maser found evidence of a ventral hernia.
Scars
51We find the applicant has a 9% WPI rating for scars.
52Dr. Kumbhare assigned a rating of 9% which is consistent with a class 1 impairment which provides a WPI range of 1 to 9%, according to Chapter 13, Table 2 of the Guides. Dr. Kumbhare’s examination revealed that following the applicant’s abdominal surgery he has a scar measuring 26 centimeters long (ranging from one to six centimeters wide) across his abdomen. He also has a 8.5 centimeter scar over his right forearm. There is no dispute that these scars are accident-related. In his report, Dr. Kumbhare discussed the various criteria in the Guides for assigning ratings for scars re: is the scar permanent, can it be concealed or corrected, and whether its appearance can be improved without altering function. Dr. Kumbhare concluded that given the extent of the applicant’s scar 9% was appropriate.
53Dr. Maser’s provided a WPI of 0%, which was reflected in Dr. Meikle’s executive summary. During cross-examination Dr. Maser acknowledged that the applicant’s WPI for scar fit within class 1 of the Guides and that his report had been altered by CIRA, without his knowledge. He confirmed that his rating for the applicant’s scars would be 4%.
54We accept Dr. Kumbhare’s rating of 9% because we find the medical evidence, including the photographs of the applicant’s abdomen, and right forearm make it clear that the accident, and the related operations, caused significant and pronounced scarring. Both Drs. Kumbhare and Maser noted that the applicant fell within class 1. We give Dr. Maser’s report and testimony no weight because he admitted his report was altered, yet he never made efforts to correct the inaccurate information in both his and Dr. Meikle’s report and his signature is on both reports. We find that the injury is obvious and, whether or not it impairs any functions, the class 1 designation provides for a rating range and we believe that 9% WPI is the appropriate rating in this category.
Mental or Behavioural Impairment
55We find the applicant’s psychological impairment under Criterion 7 to be 10%.
56Both parties assessors diagnosed the applicant with Somatic Symptom Disorder, persistent. However, Dr. Shahmalak diagnosed the applicant with Major Depressive Disorder, Post Traumatic Stress Disorder (“PTSD”) and Specific Phobia, whereas Dr. Jwely diagnosed the applicant with Adjustment Disorder. We accept Dr. Shahmalak’s diagnosis of Major Depressive Disorder because we find the applicant meets the criteria in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5) based on the severity and duration of his symptoms. We also accept that the applicant has PTSD because the applicant has consistently reported nightmares and panic attacks post-accident. We also note that none of the psychiatric or psychological assessors throughout the claim had concerns with the applicant’s credibility as they all found his presentation to be valid.
57Nevertheless, we find that both assessors ratings had limitations. We find Dr. Shahmalak inflated the WPI% for the applicant’s mental and behavioural impairment on some of the psychiatric scales administered. Some of the ratings assigned by the doctor on the PIRS were inconsistent with the applicant’s actual function. For example, Dr. Shahmalak rated the applicant as “severe” under the category of “travel” which is compatible with someone that cannot leave their home without a support person. This does not apply in the applicant’s case because he regularly leaves his house without a support person to go to school and work and he travelled, independently, to India. In contrast, we find that Dr. Jwely underestimated the applicant’s psychological impairments because he attributed most of the applicant’s issues to pain versus his psychological impairments. We find this confusing in light of the doctor’s diagnosis of Somatic Symptom Disorder, where pain and psychological symptoms are intertwined. However, despite this flaw in Dr. Jwely’s overall assessment we find the doctor’s scores on the psychiatric scales more consistent with the applicant’s function which is why we accept the 10% WPI assigned by Dr. Jwely under Criterion 7. When the physical and psychological scores the Tribunal has accepted are combined (52 +10) the applicant’s total WPI is 57% and he meets the CAT threshold.
Criterion 8
58Since we have already determined that the applicant meets CAT status under Criterion 7, we find it unnecessary to address Criterion 8. We will now address the applicant’s entitlement to post-104 IRBs.
The applicant has established entitlement to post-104 IRBs
59To receive payment for post-104-IRBs under s. 6 of the Schedule the applicant must demonstrate on a balance of probabilities that he suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience”.
60The applicant argues that he meets the post-104 test because the physical, psychological and cognitive impairments he sustained in the accident preclude him from returning to his pre-accident employment or any meaningful employment without considerable accommodations. The applicant relies on the reports of Dr. Shahmalak and Dr. Kumbhare and CAT assessments in support of his position that he meets the post-104 test.
61The respondent submits that the applicant does not meet the post-104 IRB test because he has resumed working part-time and has engaged in certification courses and volunteer work. It also asserts that the applicant has the functional capacity to engage in other work which does not require heavy physical labour. The respondent relies on the IE reports by Dr. Maser, Dr. Connolly, Dr. Safir, Dr. Syed, psychologist, Dr. Holland, chiropractor and the transferable skills analysis, labour market survey and vocational evaluation of Ruth Billet, certified vocational evaluator, who all concluded the applicant did not meet the post-104 IRB test.
62We will first discuss the applicant’s academic and employment history and will then discuss the medical evidence.
Applicant’s education and work experience
63Prior to the accident, the applicant was an international student taking a full-time business program at Seneca College. He finished high school outside of Canada. The pre-accident school transcripts demonstrate that the applicant was struggling academically and most of his grades were below average. Following the accident, he took a semester off and returned with accommodations in May 2021. It took him an extra year and a half to graduate from this program. The post-accident transcripts were not submitted for our consideration so it is unclear to what degree the accident had an impact on his academic performance. However, he was given significant accommodations at school including extra time for completing exams and assignments and access to a school advisor.
64Prior to the accident, he also worked part-time at IKEA in the click and collect department which required customer service, cashier, heavy lifting and working in a fast-paced environment. He averaged 20 hours of work, per week. Following the accident, he remained off work until June 2024, when he returned on modified hours and duties with significant accommodations. The evidence before us supports that he works two 4-hour shifts per week, in the food court. His employer has made significant accommodation such as limiting standing and lifting, unlimited breaks, no penalties for missing shifts, only assigned work in the cold food area and no work as a cashier to avoid interaction with customers.
The Medical Evidence
65We find that the totality of the medical evidence supports that the applicant has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education training and experience. As already highlighted above, we have determined that the applicant sustained significant physical impairments as a result of the accident. It is also undisputed that the applicant has sustained psychological impairments.
66We were not persuaded by the post-104 IRB reports of the respondent’s assessors for the following reasons.
67First, we find the combination of the applicant’s psychological and physical impairments would prevent him from working in any of the occupations identified in the labour market survey prepared by Ms. Billet. Ms. Billet identified three suitable occupations, namely, retail sales associate, front desk clerk/ appointment scheduler and interpreter. Of significance, the applicant performed poorly on the cognitive and aptitude tests administered Ms. Billet, yet there was no discussion regarding this in any of the reports. Moreover, he did not complete the aptitude test despite the assessment being scheduled for an extra day which is consistent the applicant’s presentation in other assessments. We also note that none of the reports prepared by Ms. Billet document what the functional demands of the above occupations would be, which would allow for us to properly analyze whether the applicant can work in these occupations. In addition, all of the respondent’s assessors concluded that the applicant could work in any these occupations without explaining why or discussing what these jobs entail.
68We find that using common sense the very nature of the work, in all three of these occupations at odds with the medical evidence and functional limitations caused by the applicant’s physical and psychological impairments. For example, at IKEA, his workplace accommodations currently allow him to avoid personal contact and serve customers, which would directly contradict both the retail sales associate and front desk clerk normal working conditions. We also note that a positive attitude and ability to deal with customers and problem solve would be required in all three occupations. We find that the applicant’s psychological diagnosis of somatic symptom disorder, anxiety and depression would interfere with or preclude his ability to carry out the duties required by these occupations.
69Second, we find the opinions of the respondent’s psychological IE assessors inconsistent. For example, Dr. Syed concluded that the applicant did not have a complete inability to work in these occupations as a result of any psychological impairment, despite the fact that the results of the psychometric tests administered by the doctor showed evidence of severe psychological impairment. In contrast, Dr. Jwely opined in his addendum CAT report in 2025 that the applicant could work (with accommodations) and had potential for sustained part-time employment in low-stress roles, contingent on ongoing mental health support. Dr. Jwely concluded that the vocational options proposed by Ms. Billet remain viable with tailored accommodations.
70Of significance, we find that there was no discussion about the applicant working in any of the jobs identified by Ms. Billet with accommodations in the vocational assessments. Moreover, the applicant had exhausted his medical and rehabilitation limits so he would not have access to additional treatment to allow him to carry out these roles, as per Dr. Jwely’s opinion. Although we note that Dr. Jwely was not tasked with assessing the applicant’s entitlement to post-IRBs he addressed it in his report. Further, both Dr. Syed and Dr. Jwely’s assessments lacked any details or analysis regarding how the applicant could work in these occupations given his psychological impairments.
71The respondent referred us to collateral benefit claims for benefits the applicant had available through his school to refute the applicant’s position that his accident benefits have been exhausted. However, we were not provided with sufficient information about these plans to support that the applicant has access to psychological treatment through these benefits or that they are still active following the applicant’s graduation from school. Instead, we had testimony that the applicant was personally paying for his chiropractic and other treatments.
72As for the role of interpreter, we find the applicant struggled to engage in the very structured setting of the hearing, seeking multiple breaks in the proceedings, asking for questions to be repeated and struggling to recall information. His presentation at the hearing was also consistent with his performance during the CAT occupational therapy assessments by both parties which showed various limitations in concentration, persistence and pace as a result of his physical and psychological impairments. We find that the mental acuity required to perform, satisfactorily, as an interpreter to be beyond the applicant’s current abilities.
73In contrast, Dr. Shahmalak concluded that the applicant is unemployable. He has been unable to find work in his field of study in business. Moreover, the doctor concluded that the fact that he is working two four hour shifts at IKEA is not in line with his diploma in business administration or his employment prior to the accident. Dr. Shahmalak also opined that the applicant does not have the capacity for sustained attention and concentration for work activities, pace persistence, interpersonal functioning or work like demeanor at a competitive level with or without the use of accommodations, which place the applicant at a significant competitive and economic disadvantage. We prefer Dr. Shahmalak’s opinion because it is more consistent with the applicant’s psychological impairment and resulting function. The doctor’s opinion also aligns with the applicant’s poor performance during both parties’ OT CAT assessments. The respondent has given us no reason to doubt the reliability of the applicant’s performance during these assessments.
74Third, we find the respondent’s IE assessors identified various physical impairments that would also have an impact on the applicant’s ability to work in the occupations identified by Ms. Billet. For example, Dr. Maser’s report concluded that the applicant’s abdominal discomfort would make it difficult for him to do physically demanding work, however, he could do employment of a sedentary nature without causing harm to himself or others. Dr. Safir, orthopaedic surgeon, confirmed that the applicant still experienced tenderness in the cervical, thoracic and lumbar spine. Further, he has reduced sensation in several fingers in his right hand due to the distribution of the ulnar nerve. Further, due to his upper extremity impairment he is expected to have some mild restrictions with heavier lifting, carrying, pushing and pulling. In addition, Dr. Connelly identified that the applicant has chronic migraine headaches which we also find would also impact his ability to perform efficiently in the jobs identified by Ms. Billet.
75We find the role of a retail sales associate would require the applicant to stand for long periods, and lift and carry boxes to restock product which conflicts with the IE assessor’s opinions that he can work in this occupation. We find that the combination of the applicant’s psychological and physical impairments would prevent him from working in any the jobs identified by Ms. Billet. We find the degree of his physical and psychological impairments have placed, and will continue to place, limitations on him securing and retaining even the part-time workload he maintained prior to the accident.
76Dr. Kumbhare opined that the applicant met the complete inability test because of the combination of his physical and emotional impairments. His chronic pain, emotional issues and associated limitations result in poor sleep, fatigue, poor mood and increased pain which would interfere with his ability to work in any capacity. Although we acknowledge that Dr. Kumbhare’s report was not comprehensive or based on all of the medical evidence before us, we agree with his opinion.
77As already noted above, the applicant’s current accommodations at IKEA allow him to be late, miss shifts and take breaks whenever he wants as well as handle a much more limited range of tasks than would normally be assigned to staff members in his category. We have been provided not evidence that any employers would typically hire someone in need of this level of accommodation which places the applicant at a significant competitive disadvantage. For these reasons, we have placed little weight on the fact that the applicant has continued to work two four-hour shifts twice a week because we find that this is not meaningful employment nor is it comparable to his pre-accident employment or occupations in his field of study.
78Much was made by the respondent that in late 2024 and early 2025, the applicant volunteered for Nuit Blanche once and has completed various certifications for different online courses. We have given this evidence little weight because of its late service on the applicant.
79For the above-noted reasons, we find that the applicant has met his onus on a balance of probabilities that he has a complete inability to engage in any employment which he is reasonably suited by education training and experience. We find that he has established entitlement to an IRB from September 18, 2023 to date.
The applicant is not entitled to payment of an IRB because he failed to report his income
80Section Under s. 4(5), an insured person is required to report their pre-accident income to the Canada Revenue Agency (“CRA”) under the Income Tax Act in order for it to be used to quantify income replacement benefits payable.
81It is undisputed that the applicant has not filed income tax returns since 2018.
82The applicant submits that it is within the Tribunal’s discretion to find that the applicant has established entitlement to an IRB, however, not make a determination on the quantum. Further, the fact that he has not filed income tax returns does not disqualify him from being paid an IRB. He relies on the Tribunal’s decision in Parameswaralingam v. Echelon General Insurance Company, 2021, CanLII 71056 (ON LAT) where the adjudicator determined that the insured was entitled to a payment of an IRB but failed to provide sufficient particulars to allow her to calculate the amount of IRBs payable during the entitlement period.
83The respondent argues that the calculation of the applicant’s IRB is zero because he failed to report his income to the CRA in accordance with the s. 4(5) of the Schedule. It maintains that the case law is clear that no IRB is payable where it has not been reported to the CRA. It relies on the Tribunal’s decisions in 17-004564 v Aviva Insurance Canada, 2018 CanLII 97833 (ON LAT) (“17-004564”) and R.E. v Aviva Insurance Company, 2020 CanLII 37658 (ON LAT) (“R.E.”) in support of its interpretation of s. 4(5) of the Schedule. In these two decisions, the adjudicators determined the quantum of the insured’s entitlement to an IRB to be zero because of their failure to comply with s.4 (5) of the Schedule.
84We find the language in s. 4(5) of the Schedule clear that income not reported to the CRA cannot be used to quantify an IRB. There are no exceptions incorporated into this section. Since the applicant has not complied with s. 4(5) the quantum of his IRBs is zero. We find that the applicant mischaracterized the adjudicator’s finding in Parameswaralingam. In paragraph [44], of that decision the adjudicator determined that any income the insured made in 2018 was not to be included in the calculation of their IRBs. Further, the insured did not meet their onus in proving the quantum of the benefits payable. The applicant’s interpretation of this decision is also contradicted by the adjudicators conclusion that there were no benefits owing.
85Although we have determined that the applicant meets the disability test for entitlement to post-104 IRBs, he does not qualify for payment for his failure to file tax returns with the Canada Revenue Agency, as required by the Income Tax Act (Canada) and the Schedule.
The applicant is not entitled to ACBs in the amount of $6,000 per month from August 31, 2021 to May 8, 2022.
86Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aide or attendant. A “Form 1” prepared by an occupational therapist sets out the nature of the services and the amount of care an individual requires as well as the monthly cost of providing those services. The maximum amount of ACBs payable for a person who has sustained a CAT impairment under the Schedule is $6,000.00 per month.
87The applicant was initially assessed for ACBs by his treating occupational therapist Christie Kerr (“OT Kerr”) who prepared a Form 1 and attendant care assessment report in March 2021 recommending that he receive $10,318.52 per month in ACBs. Based on the evidence before us, it is unclear what ACBs were approved by the respondent until August 31, 2021, but we note that this time period is not in dispute.
88The respondent terminated the applicant’s entitlement to ACBs on August 31, 2021 relying on the IE attendant care assessment report and Form 1 of Arash Sasani, occupational therapist (“OT Sasani”), dated July 30, 2021 and reports of Dr. Yahmad, neurologist, and Dr. Safir, orthopaedic surgeon, both dated July 23, 2021. All three of these assessors determined that the applicant was independent in carrying out his self-care and daily activities and did not require ACBs.
89We find that the applicant has not established that he is entitled to $6,000 per month in ACBs between August 31, 2021 to May 9, 2022 for the following reasons.
90First, although we accept that the applicant would have required significant assistance with carrying out his self-care and daily activities in the months following the accident because of the extent his physical injuries we find that there is a significant gap in the medical record for this time period documenting the applicant’s medical status and ongoing functional limitations.
91Second, the only ACB reports and Form 1 we have before us for this time period is the above-noted IE reports and a progress report from OT Kerr dated July 2021. We find these reports do not support that the applicant required $6000 per month in ACBs for this time period. The applicant reported to OT Sasani that when he was discharged home from the hospital, he had difficulty with completing his chores but was now able to complete them at a slower pace. He also reported being independent with self-care. Further, both Dr. Yahmad and Dr. Safir noted that the applicant’s neurological and physical examinations were normal and the doctors concluded that he did not require ACBs because of any neurological or orthopaedic impairment. Of significance, Dr. Safir did note that the applicant’s upper extremity impairment resulted in some restrictions with heavier lifting, carrying, pushing and pulling. We find the gains the applicant had made regarding his self-care at this time was consistent with the progress report of OT Kerr from the same time period.
92OT Kerr’s progress report from July 2021 noted that the applicant continued to complain of neck pain, abdominal pain and digestive issues, and pain in his right forearm and weakness in his right shoulder. She also noted psychosocial and emotional issues. Regarding progress, the OT noted that equipment and modified methods have allowed him to increase his independence and safety in carrying out activities of daily living which has allowed him to move back into his own apartment. He is now independent with personal care tasks. He has improved balance and no longer requires a shower chair. He tries to use his left hand for lifting, relies on a trolley cart for laundry and grocery shopping. However, the report noted that he had not resumed housekeeping and still relies on his room mates and sister for complex meal preparation. Although we note that OT Kerr’s progress report still lists some limitations, we do not have an updated assessment report or Form 1 from OT Kerr recommending ACBs until May 2022. Nor were we directed to any other medical evidence for this time period regarding the status of the applicant’s impairments and functional limitations.
93We conclude that the applicant has not met his onus in proving on a balance of probabilities that he is entitled to $6,000 per month in ACBs from August 31, 2021 to May 8, 2022.
The applicant has established entitlement to an ACB in the amount of $889.21 per month from May 9, 2022 to date and ongoing.
94OT Kerr completed a second assessment and Form 1 dated May 9, 2022 which recommended that the applicant receive $1,759.11 per month in ACBs. OT Kerr acknowledged that the applicant had made significant gains in carrying out his personal care independently since her last assessment. However, she noted that he continued to demonstrate reduced range of motion and strength in his right wrist and reported moderate to severe disability in his upper extremity. He also displayed weakness in trunk and hip flexion due to pain and weakness in his abdomen. She also noted that he presented with severe symptoms of depression and anxiety and that these symptoms had increased over the past year. His ongoing experience with chronic pain was disrupting his life and impacting his ability to carry out his daily activities.
95OT Sasani completed a second assessment and Form 1 dated August 9, 2022 which recommended zero in ACBs, and concluded that the applicant did not have any physical disability that would interfere with his ability to carry out his daily activities.
96The applicant argues that we should prefer the opinion and ACB report and Form 1 of OT Kerr over OT Sasani’s because he has had ongoing limitations in carrying out his activities of daily living because of his physical and psychological impairments. He submits that his return to school and increase in activity resulted in increased pain, fatigue and psychological symptoms.
97The respondent submits that the applicant does not require ACBs because he is independent with self-care and has the physical capability to carry out his daily activities independently.
98We prefer many of the amounts recommended by OT Kerr over OT Sasani because they were consistent with the totality of the medical evidence regarding the applicant’s impairments and functional limitations. For example, OT Sasani did not observe any symptoms of depression and anxiety which is inconsistent with the subsequent assessments completed on this file. Further, OT Kerr’s progress reports from July 2021 and January 2022 support that the applicant’s psychological symptoms were increasing. However, we do not accept all of the amounts recommended on OT Kerr’s Form 1 and find it partially reasonable and necessary in the amount of $866.52 per month for the following reasons.
Level One
Meal Preparation
99OT Kerr recommended that the applicant receive 60 minutes per day seven times per week with assistance with complex meal preparation for a total of 420 minutes per week. In justifying the need for this assistance the therapist indicated that the applicant was consuming Ensure for a large portion of his daily nutrition; however, his dietician has recommended that he increase his intake of real food. She opined that this assistance was needed because of cognitive fatigue, reduced activity tolerances, reduced motivation, and other post-concussive symptoms. OT Sasani determined that the applicant does not require assistance with feeding and can prepare simple meals and that he was not on any special diet.
100We find OT Kerr’s recommendation of 420 minutes per week for assistance with complex meal prep reasonable because the applicant testified (and consistently reported to assessors) that he consumes Ensure because he does not have the motivation or physical tolerance to cook complex meals. We find OT Sasani’s finding that the applicant was not on any special diet inconsistent with the medical record before us. We also note that the applicant has limitations in his right wrist and shoulder (and is right hand dominant) which would interfere with his ability to cook complex nutritious meals. We find this physical impairment well documented throughout the claim and even consistent with the opinions of the respondent’s CAT assessors. For this reason, we accept OT Kerr’s recommendation that the applicant receive assistance with this task.
Mobility
101OT Kerr recommended that the applicant receive 60 minutes per day seven times per week for supervision with mobility while out in the community for a total of 420 minutes per week. In explaining the need for this assistance the therapist indicated that the applicant fell while jogging because of dizziness. Further, he experiences reduced motivation to leave his house. OT Sashani recommended zero for assistance with mobility and opined that the applicant was independent in accessing the community.
102We do not accept OT Kerr’s recommendation of 420 minutes per week for assistance with mobility. By the time of this assessment the applicant had returned to school and was independently accessing the community. Consequently, we find that supervision with mobility is not required. Nor were we directed to any medical records to support that the applicant had injured himself due to falls as a result of dizziness.
Level Two
Bathroom and Bedroom Hygiene
103OT Kerr recommended that the applicant receive 10 minutes per day seven times per week for assistance with bedroom and bathroom hygiene for a total of 70 minutes per week. In defending the need for this assistance the therapist indicated that the applicant had reduced tolerances due to ongoing pain and a lack of motivation to complete this task because of his psychological impairment. OT Sasani concluded that the applicant did not require assistance with this task and he could complete these tasks by pacing and taking breaks.
104We prefer OT Kerr’s recommendation for assistance with this task because the applicant would avoid carrying out these tasks because of a lack of motivation and chronic pain because of his Somatic Symptom Disorder. Further, as noted above he experiences ongoing pain and physical limitations as a result of his right arm and abdomen that would make these tasks painful and difficult. For these reasons, we find OT Kerr’s recommendation reasonable. We find that OT Sasani overlooked the applicant’s psychological symptoms and impairment in their report.
Comfort and Safety in Bedroom Environment
105OT Kerr recommended that the applicant receive 60 minutes seven times per week for comfort and safety in his bedroom environment. In her opinion, he required support to ensure his comfort, safety, and security due to high levels of reported symptoms for anxiety, depression, and PTSD and dizziness. The time was allotted as a check in to ensure that the applicant was doing ok, and safe because of dizziness and balance issues. Although we acknowledge that the applicant was experiencing symptoms of depression and anxiety, we do not find the medical evidence supports that the applicant required supervision in his bedroom environment. Therefore, we do not find this recommendation reasonable.
Co-ordination of ACBs
106OT Kerr recommended that the applicant receive 30 minutes once per week for assistance with coordinating ACBs. We find the evidence supports that the applicant has experienced issues with memory post-accident either due to his TBI or psychological impairment. For this reason, we 30 minutes once per week to be reasonable.
Level Three
Supervision During Exercises
107OT Kerr recommended that the applicant receive 30 minutes once per day seven times per week for supervision while doing exercises a total of 210 minutes per week. The therapist made this recommendation because the applicant reported reduced motivation and tolerance for doing his right arm and upper extremity exercises. We find this amount to be reasonable because OT Kerr’s progress report from January 2022 noted the that the applicant had not been consistent in carrying out his upper extremity exercises because of reduced motivation. Therefore we find assistance with cueing and encouragement would be reasonable.
Medication
108OT Kerr recommended that the applicant receive 15 minutes once per week with maintaining control of the applicant’s medication and supply because he has been noted to forget/delay filling prescriptions and picking up medication from the pharmacy. We find this amount reasonable because the applicant takes numerous medications as a result of his accident- related impairments. OT Kerr’s progress report dated January 2022 noted ongoing issues with memory and the applicant had been forgetting things.
109When the amounts we find reasonable and necessary are calculated in accordance with the methodology on the Form 1, (Level 1: $448.49; Level 2: $100.33; and Level 3: $340.39) are added up we find the applicant has established entitlement to a monthly ACB in the amount of $889.21 per month.
The applicant is not entitled to payment of ACBs because the benefit has not been incurred.
110Under subsection 3(7)(e) of the Schedule, for the applicant to receive payment for ACBs, there must be evidence that the expense was incurred. An incurred expense requires that the following conditions be met:
The applicant received the service to which the expense relates;
The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and
The person who provided the service did so:
A. in the course of their employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or
B. sustained an economic loss as a result of providing the goods or services to the insured person.
111We find the applicant has not provided any evidence to prove that he received the service to which the expense relates, or that he paid or promise to pay for the expense. Nor did he provide any evidence to support that anyone provided him with any services.
112As a result, the applicant has not met his onus in proving that he incurred ACBs as required by s. 3(7)(e) in order to be entitled to payment for same. Consequently, he is not entitled to payment of the ACBs to date.
Interest
113Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because although we have determined that he has established entitlement to benefits the payment of these benefits are not overdue.
ORDER
114For the above reasons, we make the following order:
i. The applicant is deemed to have suffered a CAT impairment under Criterion 7.
ii. The applicant is entitled to post-104 IRBs from September 18, 2023 to date, but is not entitled to payment for failing to file income tax returns pursuant to the Schedule.
iii. The applicant has not established entitlement to ACBs in the amount of $6,000.00 per month from August 31, 2021 to May 8, 2022.
iv. The applicant has established entitlement to ACBs in the amount of $889.21 per month, however, is not entitled to payment of same because the benefit has not been incurred.
v. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
Released: September 25, 2025
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Rebecca Hines
Adjudicator
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Steve Gilchrist
Adjudicator
