Licence Appeal Tribunal File Number: 23-012771/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:
Peter Glarentzos
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Muhammad Aftab Alam, Counsel
For the Respondent:
Kadey B. J. Schultz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Peter Glarentzos, the applicant, was involved in an automobile accident on September 2, 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, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Sections 44 and 55 of the Schedule
2I find the applicant did not attend a reasonably necessary insurer’s examination (“IE”) that was scheduled in compliance with the Schedule. This breach of s. 44(1) means that the applicant is barred from proceeding to a hearing on the issue of attendant care benefits, pursuant to s. 55(1) of the Schedule.
3The respondent argues that the applicant should be barred from disputing the issue of attendant care benefits, pursuant to s. 55 of the Schedule, due to his failure to attend properly scheduled s. 44 IEs which were to take place on September 11, November 3, and December 14, 2023.
4The respondent wrote to the applicant on July 26, 2023, advising that a s. 44 IE was required to determine whether attendant care benefits were reasonable and necessary as a result of the subject accident. That examination was to take place on September 11, 2023. The applicant did not attend the September 11, 2023 IE; the respondent rescheduled the IE for November 3, 2023. On October 5, 2023, the applicant’s representative wrote to the respondent confirming “the applicant will not attend the scheduled Insurance Examination on November 3, 2023, was not reasonable and necessary, and a paper review assessment was preferred.” The respondent advised via email on October 6, 2023 that the IE could not be conducted by paper review and that an in-person IE was required. The applicant failed to attend the IE on November 3, 2023. The respondent rescheduled the IE to December 14, 2023. The applicant did not attend the December 14, 2023 IE either. On July 23, 2024, the respondent wrote to the applicant confirming his non-attendance at IEs on various dates, and advising that pursuant to s. 55 of the Schedule, he was no longer permitted to apply to the Tribunal to dispute entitlement to this benefit.
5The applicant argues that the notices were improper and do not conform with the requirements of the Schedule. The applicant argues that s. 44(1) allows the respondent to require the applicant to be examined, however, no more than necessary. The applicant does not provide reasoning as to why he thought this examination is not reasonably necessary. The applicant also argues that s. 44(5) imposes an obligation of the respondent to provide the applicant notice, and the notice should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision at issue. Again, the applicant has not provided submissions how or why the notice was not compliant. In the applicant’s response to the respondent’s email, his reasoning was that a paper review assessment was preferred. The response does not argue that the notice was insufficient, just that the applicant preferred a paper review instead of an in-person examination.
6Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
7Section 55(2) states that the Tribunal may permit an insured person to apply to it, despite paragraphs 2 and 3 of section 55(1).
8The respondent bears the onus of establishing that the applicant is statute-barred for failing to comply with s. 44(9)2 of the Schedule.
9After a review of the notices, and the applicant’s correspondence, the respondent has satisfied me that the applicant failed to attend a reasonably necessary IE. For this reason, the applicant is barred from proceeding to a hearing for the issue of attendant care benefits, pursuant to s. 55(1) of the Schedule. The remaining issues in dispute will be considered below.
ISSUES
10The issues in dispute are:
i. 1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to the treatment plans/OCF-18 (“plans”) proposed by Pearson Medical Assessment Centre as follows:
$3,841.09 for psychological services dated September 21, 2022;
$5,836.24 for occupational therapy services dated June 20, 2023;
$14,271.98 for RSW services dated June 16, 2023; and
$3,841.09 for psychological services dated January 11, 2024?
iii. Is the applicant entitled to the plans proposed by Optimo Clinics as follows:
$3,690.00 for physiotherapy services dated March 17, 2023;
$1,120.00 for physiotherapy services dated September 18, 2023; and
$1,752.81 for physiotherapy services dated September 18, 2023?
iv. Is the applicant entitled to the plans proposed by HealthMax Physio as follows:
$5,089.47 for physiotherapy services dated September 7, 2023; and
$4,784.55 for physiotherapy services dated January 16, 2024?
v. Is the applicant entitled to $11,834.06 for physiotherapy services proposed by IM-OT in a plan dated June 5, 2023?
vi. Is the applicant entitled to the assessments proposed by Pearson Medical Assessment Centre as follows:
$1,508.06 for an FAE assessment, in a treatment plan dated February 19, 2020;
$2,200.00 for a psychiatrist assessment, in a treatment plan dated April 13, 2021:
$14,859.50 for a CAT assessment in a treatment plan dated October 13, 2021;
$1,988.80 for a function impairment assessment in a treatment plan dated June 3, 2022;
$2,200.00 for a physiatry assessment in a treatment plan dated July 22, 2022; and
$2,200.00 for an ENT assessment in a treatment plan dated June 22, 2023?
vii. Is the applicant entitled to $1,636.35 for unpaid invoices submitted on a claim form (OCF-6) dated August 4, 2021?
viii. Is the applicant entitled to $113.00 for unpaid invoices, submitted on a claim form (OCF-6) dated September 22, 2021?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
11The applicant has not sustained a catastrophic impairment.
12As the applicant does not suffer a catastrophic impairment, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.
13The is no award or interest owing.
ANALYSIS
Has the applicant sustained a CAT impairment as defined by the Schedule?
14The applicant did not sustain a CAT impairment pursuant to s. 3.1 (“Criterion 8”) of the Schedule.
15To qualify as CAT under Criterion 8, an individual must sustain a Class 4 (“marked impairment”) as a result of the accident in three out of the four spheres of functioning or a class 5 impairment (extreme impairment) in one or more areas of function, outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), due to a mental or behavioural disorder.
16The Guides set out that mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment.
Area or Aspect of Functioning
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)
17The applicant underwent multidisciplinary catastrophic assessments with Pearson Medical Assessment Centre on April 12, 2022. The OCF-19 submitted indicates that the applicant meets Criterion 8 due to mental and behavioural disorder. The assessments completed by Pearson Medical include an orthopaedic assessment by Dr. Getahun, orthopaedic surgeon, a psychiatric evaluation by Dr. Hasan, psychiatrist, and Mr. Moy, occupational therapist, completed an occupational therapy assessment. Dr. Getahun’s determination in his orthopaedic assessment was that the applicant suffers from serious and permanent injuries as a result of the accident, but from an orthopaedic perspective he does not satisfy the criteria for a catastrophic determination.
18The applicant subsequently underwent an IE to assess catastrophic assessments with psychiatrist Dr. Eisan on August 18, 2022. The parties’ respective CAT assessors have provided the following Criterion 8 ratings:
Sphere
Dr. Hasan
Dr. Eisan
Activities of Daily Living
Class 4
Class 4 (not attributed to accident)
Social Functioning
Class 4
Class 4 (not attributed to accident)
Concentration, Persistence, and Pace
Class 3
Class 4 (not attributed to accident)
Adaptation
Class 4
Class 4 (not attributed to accident)
19I find that the applicant has not sustained a catastrophic impairment for the following reasons.
20Dr. Hasan’s report dated March 9, 2022 diagnosed the applicant with major depressive disorder, specific phobia situation type driving, pain due to injuries sustained by the subject accident, and severe stress due to the loss of his good health and role functions.
21The applicant reported to Dr. Hasan that at the time of the accident , he was receiving short term disability following the death of his mother in 2019. The applicant also reported a pre-accident history of depression, anxiety, and PTSD prior to the subject accident. He disclosed he consulted a psychiatrist following the passing of his mother in 2019 and was prescribed medication.
22Dr. Hasan’s Criteria 8 Catastrophic Impairment diagnosis, includes:
i. Activities of Daily living is rated as Class 4. Dr. Hasan’s opinion is based on the applicant’s inability to complete his activities of daily living independently. He notes the applicant’s inability to complete household responsibilities, highly disturbed and non-restorative sleep, and vehicular anxiety. However, I note that in his report, Dr. Hasan does not engage in the applicant’s pre-existing conditions that may have contributed to several of these reported issues. The client has a pre-existing issue with sleep apnea, that is not referenced by Dr. Hasan. Additionally, the non-restorative sleep is attributed to nightmares experienced by the applicant from the accident. However, I note that In other reporting to his psychiatrist, these reported nightmares are not associated with the accident, but with the applicant’s mother and her passing. The applicant’s subjective reporting to Dr. Hasan is that he continues to drive to visit his father, take him to appointments, to do grocery shopping, so I am not directed to how driving would meet the criteria of significantly impede useful functioning.
ii. Social Functioning is a rated as Class 4. Dr. Hasan’s opinion is that based on the accident that the applicant has become socially isolated, no longer has a positive outlook on life, has had suicidal ideation, and an inability to return to pre-accident employment. However, I similarly note that Dr. Hasan does not engage with the applicant’s pre-existing psychological issues in delivering this opinion. In Dr. Xiaing, the applicant’s psychiatrist, CNRs, the applicant reports: never having had a large social circle, also, with the passing of his mother he blamed his sister for her death and does not speak to her. Those CNRs also note that the applicant is distrustful of his broader family in the wake of his mother’s passing. The applicant had significant pre-accident psychological issues, due to the passing of his mother, and was off work at the time of the accident. The CNRs of Dr. Xiaing, clearly outline that the applicant did not have a positive outlook on life pre-accident and that the suicidal ideation is reported as related to the passing of his mother, not the subject accident.
iii. Concentration is rated as Class 3 and does not meet the criteria for catastrophic impairment.
iv. Adaption is rated as Class 4. Dr Hasan’s opinion is that the applicant has not been able to return to work, he is coping with pain, depression, anxiety, cognitive dysfunction, and poor energy levels, and an inability to adapt. Dr. Hasan attributes these issues to physical limitations and a compromised psychological condition due to the subject accident. While providing his opinion on activities of daily living, Dr. Hasan notes, “the applicant makes staunch efforts to adapt and complete his self-care tasks independently”. However, I have not been directed to how the applicant makes a staunch effort in adaption, but is significantly impeded from useful functioning. Additionally, Dr. Hasan does not discuss the contributing factor of the applicant’s pre-existing psychological condition to his opinion.
23I am not persuaded that Dr. Hasan sufficiently considered the applicant’s pre-accident impairments in coming to his impairment ratings. The applicant was diagnosed with generalized anxiety disorder in October 2016. In August 2017, the applicant began taking Clonazepam for a panic disorder. In April 2018, the applicant reported severe workplace stress, and during 2018 he frequently reported caregiver stress and being overwhelmed by caring for his ailing parents. In May 2019, pre-accident, the applicant went on disability leave from work after the passing of his mother. Although the applicant reported being a fully functional person and suffered no restrictions in day to day activities at the time of the accident, this seemingly downplayed his extensive pre-accident psychological impairment.
24Accordingly, I am not persuaded that Dr. Hasan’s report accurately captures the level of pre- or post-accident psychological impairment.
25I prefer Dr. Eisan’s report, as he relied heavily on the extensive CNRs of Dr. Xiaing in forming his opinion. Dr. Eisan’s diagnosis of the applicant is adjustment disorder with mixed mood features, chronic, likely pre-existing, exacerbated by the subject accident, currently mostly at baseline level. depressive disorder NOS, likely pre-existing, exacerbated by the subject accident, currently mostly at baseline level, anxiety disorder NOS, likely pre-existing, exacerbated by the subject accident, currently mostly at baseline level. Possible specific phobia (driving/passenger anxiety). Dr. Eisan outlines Dr. Xiaing’s CNRs begining in July 2019 and discusses the applicant’s pre-accident psychological functioning.
26Dr. Eisan also notes that the diagnostic impression by Dr. Xiaing did not change pre and post accident with very few references to the accident during their sessions. Additionally, Dr. Eisan outlines the CNRs of several other mental health care professionals in his report including Dr. El-Hage, C.Psych from February 4, 2020 and September 23, 2021 who completed insurer’s examinations. The IE from February 2020 indicates the applicant was in a fragile psychological state at the time of the accident due to bereavement and guilt regarding the passing of his mother. The IE from September 2021 notes no improvement since January 2020 and that the psychological issues the applicant was facing were non-accident related.
27Dr. Eisan’s criterion 8 catastrophic impairment diagnosis rates the applicant as Class 4 in all four aspects, but none of them attributable to the subject accident. Dr. Eisan notes that all of these relate to the applicant’s pre-existing psychological condition.
28When taken together, given the applicant’s significant and pre-existing conditions and post-accident stressors, I am not persuaded that, as a result of the accident, the applicant sustained a class 4 (marked impairment) in all spheres of activities of daily living, concentration, and adaptation. Dr. Hasan did not rank the applicant as Class 4 in all for aspects, and Dr. Eisan does rank the applicant as class 4 in all four aspects, but does not relate it to the subject accident, but due to pre-existing psychological issues. Having found that the applicant has not sustained a class 4 impairment in at least three spheres of function, it follows that he does not meet the threshold for catastrophic impairment.
29As the applicant has been found to not suffer a catastrophic impairment, and the applicant’s non-CAT medical and rehabilitation monetary benefit limits have been exhausted, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
Award
31The 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. As no benefit payments have been unreasonably withheld or delayed, no award is owing.
ORDER
32I find that:
i. The applicant is barred from proceeding with the issue of attendant care benefits, due to non-attendance at a scheduled insurer’s examination.
ii. The applicant has not sustained a catastrophic impairment.
iii. As the applicant does not suffer a catastrophic impairment, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.
iv. The is no award or interest.
v. The application is dismissed
Released: October 2, 2025
Robert Rock
Adjudicator