Licence Appeal Tribunal File Number: 24-011355/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:
Laxmi D Sharma
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Mariana Slomyanski, Counsel
For the Respondent:
Karman Dhuga, Counsel
Heard by Videoconference:
July 7–8, 2025
OVERVIEW
1Laxmi Sharma, the applicant, was involved in an automobile accident on June 6, 2018, 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 Belair Insurance Company Inc., the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2Prior to the hearing, the applicant filed a motion to exclude the respondent’s document brief. This motion was withdrawn at the hearing.
ISSUES
3The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $14,119.60 ($30,314.60 less $16,195.00 approved) for CAT Assessments, proposed by HM Medical Network Ltd. in a treatment plan?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not catastrophically impaired under Criterion 8.
5The applicant is not entitled to the treatment plan, nor interest.
6The respondent is not liable to pay an award.
ANALYSIS
Catastrophic impairment – Criterion 8
7I find that the applicant is not catastrophically impaired (CAT) under Criterion 8.
8A catastrophic impairment under Criterion 8 results when an insured person sustains three of more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) in an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder. The four areas of function in Criterion 8 are activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.
9The Guides set out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:
Area or Aspect of Functioning
Class 1: NO Impairment
Class 2: MILD Impairment
Class 3: MODERATE Impairment
Class 4: MARKED Impairment
Class 5: EXTREME Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaption
10The applicant submits that she is catastrophically impaired under Criterion 8 because she sustained psychological disorders in the accident which have resulted in Class 4 Marked impairments in all four areas of function.
11The respondent submits the applicant has two Class 2 Mild impairments in ADL and CPP, and two Class 3 Moderate impairments in social functioning and adaptation. It argues that the applicant is not catastrophically impaired.
12The Independent Psychiatric Evaluation, dated October 31, 2023, by Dr. Shahmalak, psychiatrist, diagnoses the applicant with Major Depressive Disorder, Agoraphobia Post-Traumatic Stress Disorder, Specific Phobia – situational (passenger). In his view, causation is established by the applicant’s preoccupation with physical symptoms which led to depressive and anxiety symptoms that compounded her psychiatric impairments.
13The s. 44 Catastrophic Impairment Determination Psychiatric Assessment Report dated March 7, 2024 by Dr. Jwely, psychiatrist, provides a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and a Somatic Symptom Disorder.
14Dr. Jwely believes that the applicant’s current symptoms are caused by an exacerbation of a pre-existing psychological disorder. He acknowledges that there is no evidence of this disorder, but says that this does not preclude the development of pre-accident psychiatric symptoms. As such, Dr. Jwely’s diagnosis relies on speculation. This is not the case for Dr. Shahmalak, and as such, I prefer Dr. Shahmalak’s diagnosis.
15In any event, Dr. Shahmalak diagnoses the applicant with accident-related mental and behavioural disorders.
Activities of Daily Living (ADL)
16The applicant has a moderate impairment in the ADL.
17This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. The quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
18Prior to the accident, the applicant had high blood pressure, high cholesterol, osteoarthritis in the left knee, asthma, GERD, glaucoma, and was diagnosed with obesity. The applicant and her husband testified that these medical issues did not impact on her ability to cook, clean the household, and work as an aesthetician.
19A clinical note made 11 months before the accident, dated May 13, 2017, by Dr. Adenwala, family doctor, states that the applicant was unable to continue working because of her asthma. The note also states that she has pain in her knees and cannot stand. This clinical note was put to the applicant and her husband. Both testified that they do not recall what is mentioned in the note.
20I do not accept this part of their testimony. Being unable to stand and unable to work would have a serious impact on their lives and, in my view, would be memorable. Consequently, I find that the applicant and her spouse have minimized the impact of her pre-accident medical issues. I further find, on a balance of probabilities, that the clinical note establishes that her medical issues impaired her functional ability to perform household duties and work prior to the accident.
21The s. 25 Orthopedic Catastrophic Assessment Report, dated April 12, 2023 of Dr. Getahun, orthopedic surgeon, identifies accident related injuries to the applicant’s neck, back, and right shoulder. The right shoulder injury is described as having a “painful restricted range of motion.”
22The s. 25 Occupational Therapy Catastrophic Impairment Determination Assessment Report dated April 6, 2023 by Mr. Amchislavsky, occupational therapist notes that the applicant’s upper extremity is unable to perform bilateral functions, and that the applicant can only stand for a short period:
Ms. Sharma is limited with meal preparation tasks as she cannot perform the bilateral upper extremity function secondary to cervical segment, bilateral trapezius, bilateral shoulders, bilateral shoulder blades, right more than left and right upper extremity. She is limited when she attempts to wash, dry and set her hair secondary to same pain limitations associated with the repetitive function. She is limited when she attempts to wash the sides of her body and feet secondary to the same limitations as well as pain limitations in her lumbar spine with the required flexion. She is limited when she attempts to stand for the required period of time in order to engage in meal preparation secondary to pain limitations in her lumbar spine and bilateral lower extremities, right more than left.
Ms. Sharma is able to stand for approximately 10 minutes after which she requires sitting down secondary to pain limitations.
23I find that the applicant’s pre- and post-accident physical impairments do not allow her to engage in more strenuous cooking and housekeeping tasks. This is because the osteoarthritis in her left knee and accident related injuries in her neck, back, and right shoulder seriously limit her ability to stand and to use her upper extremities.
24Dr. Shahmalak rated the applicant as having a marked impairment in the ADL. He testified that the physical and psychological impairments are intertwined. He explained that pain effects the applicant’s mood and behaviour and this exacerbates the applicant’s psychological symptoms which impacts her ability to function.
25I disagree with Dr. Shamalak’s explanation because the applicant is physically unable to perform many of the ADL. As noted by Mr. Amchislavsky, she cannot perform bilateral upper extremity functions. She also has a limited ability to stand. This is significant because these are physical impairments that cannot be rated under Criterion 8 which only considers the impact of mental and behavioural disorders on the ability to function.
26This is not a circumstance where the applicant can physically perform the ADL, but does not do so because of mental health symptoms. In fact, the opposite is true. Mr. Amchislavsky notes a lengthy statement by the applicant at her March 31, 2023 assessment with him regarding her ability to cook, clean, and do other housekeeping. The statement is striking as it shows her depressive symptoms do not prevent her from at least trying to be functional despite the pain she experiences:
I really do nothing; I just try small, small things here and there. I try to use the broom now, and now I have so much pain in my right shoulder. I push myself to do something and then I am in pain. Like today, I did 10 minutes broom and kitchen and now there is so much pain in the right shoulder that I am suffering. I don’t clean much, mainly my daughter, and I don’t do the heavy mopping and vacuuming. Some light sweeping and with a lot of pain and dusting. I just try to move my body. I don’t do kitchen and bathroom. It is heavy. Just a little bit of brooming I can do. Here and there. I try to dust a little bit, very light weight here and there. Laundry my daughter does, I cannot do it is too heavy. I cannot do the stairs and carry the basket, change it, it is too much. Just my daughter is taking care of it. Grocery shopping, I don’t go anymore. Sometime family pushes me to go downstairs so, just I go there, try walk a little bit but I cannot carry items. Cooking, as I said, I cannot do much. Like a toast I can, but not like before, I prepare most of the time. 45-50 meals. I can cook very well, but now I cannot do anything anymore. Small bins, I take of the bag, and my daughter does it. Because even to go up and down stairs to exit the house is hard. I don’t really do my bed either. Sometime my daughter sets it, and I can maybe fix it a little bit, but I cannot change it.
27This statement provides insight into her physical limitations that prevent her from completing the ADL. More importantly, it also shows that she pushes herself to try and do some ADLs despite the pain. As such, this is an indication that her psychological symptoms have little impact on her motivation to perform the ADL.
28The Occupational Therapy Activities of Daily Living In-Home Assessment report dated March 7, 2024 of Ms. Nair, occupational therapist, states that the applicant can perform some self-care activities independently, and some with assistance due to physical limitations. She can shower with assistance, brush her teeth, and dress and undress with assistance. Likewise for cooking and household duties. She can make herself tea, toast, and watches television on her own or with her daughter. Ms. Nair does note psychological impairments to the ADL. This includes limitations in accessing the community as she fears being a passenger in a vehicle. In regard to recreation, pre-accident she enjoyed socializing with friends and people from her faith community. Post-accident she is more isolated and does not engage in social activities outside the home.
29The applicant’s psychiatric symptoms do not impede useful functioning for the limited tasks she is physically able to do in the home such as showering with assistance, brushing her teeth, dressing and undressing with assistance, light cooking duties, and spending leisure time watching television. However, her mental and behavioural disorders impair her ability travel outside the home and also prevent her from engaging in social activities. In my view, her psychiatric impairments are compatible with some but not all useful functioning. As such, I find that she has a moderate impairment in the ADL.
Social functioning
30The applicant has a moderate impairment in social functioning.
31Social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with others. This includes the ability to get along with family members, friends, neighbours, grocery clerks, landlords, and other members of the public.
32Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities, cooperative behaviour, consideration for others, awareness of others’ sensitivities and social maturity also need to be considered.
33The applicant reported to Mr. Amchislavsky that the accident caused a negative impact to her emotional functioning. In particular, she reported being “restless, irritable, annoyed, lower tolerance, helpless, hopeless, worthlessness, guilt and has noticed an increase in arguments with her family members.”
34In regard to feelings of helplessness, hopelessness, worthlessness, and guilt, the applicant told Mr. Amchislavsky that her “…current pain symptoms, limit her engagement in any housekeeping, homemaking activities. She now feels like a burden to her family and questions her purpose in life.”
35The applicant testified that pre-accident she was very social with her friends and faith community. This is consistent with the testimony provided by her spouse.
36She advised Mr. Amchislavsky that post-accident she “socializes mainly with her family in her residence, or over the phone and she comes out extremely rarely, and even then for a large portion of the time she is pre-occupied with stress, anxiety, pain and presents with a significantly decreased interest and motivation to engage in socializing.”
37This is similar to what she told Ms. Nair:
Following the subject accident, the claimant reported that she has withdrawn significantly from social activities, and from her social support network. She no longer sees or maintains regular contact with any of her friends, speaking to them mostly on special occasions to greet each other. She continues to have a supportive relationship with her immediate family, and her children and daughter-in-law, as well as her husband, provide her with support as needed. She described feelings of guilt for being a burden to them, and expressed concern about how she will manage if her daughter gets married and moves out of the home. Currently she tends to spend her time at home in a mostly sedentary manner, remaining in the living room for most of the day sitting and lying down intermittently. She only interacts with her immediate family members on a daily basis, and does not go to the homes of friends and family, or entertain in her home.
38It is clear that the applicant is more isolated and no longer has much of a social life outside her family. Even so, there are indications of good social functioning. The applicant is able to interact and communicate in an appropriate manner. This is demonstrated by the fact that none of the above mentioned assessors reported inappropriate behaviour. Likewise at the hearing, the applicant was polite and conducted herself in a civil manner despite being in the stressful circumstance of providing testimony. In terms of the social relationships that she has maintained, the applicant reported having a good relationship with her brother and two sisters in India to Dr. Jwely. Her psychological symptoms have escalated the level of acrimony between herself and her nuclear family, however, there is no evidence that these relationships are strained or damaged. The applicant’s spouse testified as to his efforts to comfort and support the applicant. The applicant testified that her family has taken on the household duties that she can no longer perform and how they encourage her to be more active. As such, the applicant’s psychological symptoms have not prevented her from having a functional relationship with her family members.
39In light of these factors, I find that she has a moderate impairment in social functioning because her impairment levels are compatible with some, but not all useful functioning.
Concentration, persistence, and pace (CPP) and adaptation
40The applicant makes no submissions in regard to having an extreme impairment in CPP or adaptation. As such, there is no basis to find that the applicant has an extreme impairment in either area of function.
41Having found that the applicant has two moderate impairments, and no extreme impairments, I further find that the applicant is not catastrophically impaired under Criterion 8 as he has not met his burden of establishing that he has at least three marked impairments or one extreme impairment.
42The applicant made no submissions and did not point me to evidence in support on her entitlement to the treatment plan in dispute. Consequently, there is no basis to find that she is entitled to this plan.
Interest
43Interest 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 benefits.
Award
44The 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.
45The applicant made no submissions on the award. Consequently, there is no basis to find that the respondent is liable to pay an award.
ORDER
46The applicant is not CAT.
47The application is dismissed.
Released: October 2, 2025
__________________________
Harry Adamidis
Adjudicator