Degazio v. Economical Mutual Insurance Company
Licence Appeal Tribunal File Number: 23-010192/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:
John Degazio
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Ernest H Toomath, Counsel
For the Respondent: Martin Forget, Counsel Earl Murtha, Counsel
HEARD: by Videoconference: May 12-22, 2025
OVERVIEW
1John Degazio, the applicant, was involved in an automobile accident on August 15, 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, Economical Mutual Insurance Company, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent made an oral request to exclude Ms. Alison Mulder, an occupational therapist who wrote a report for the applicant. It submitted that Ms. Mulder’s report addresses future care costs in a tort matter and is not relevant to this issues in dispute at this proceeding. Additionally, this assessment is duplicative as there already is a contemporaneous report supporting attendant care by another occupational therapist. As well, the witness is not listed on the case conference report and order (CCRO), dated March 4, 2024 and this too is a reason to not allow Ms. Mulder’s testimony.
3The applicant submits that Ms. Mulder’s evidence is relevant as it discusses the severity of his injuries, and as such, speaks to his ability to function. The applicant further submitted that the respondent was also calling a witness, Dr. Platnik, physician, who was not listed on the CCRO.
4I did not grant the respondent’s request to exclude Ms. Mulder from testifying. Her report was written for a tort matter, but the substance of her report is the extent of the applicant’s injuries. This provides insight into the applicant’s ability to function, and therefore, is relevant. It is not clear to me that Ms. Mulder’s report is duplicative as the other occupational therapist report was written for a different purpose, namely, for accident benefits. Both parties are seeking to have witnesses testify who were not specifically listed on the CCRO. It would be unfair to allow the respondent’s witness to testify and not the applicant’s witness. Finally, the respondent has not identified any prejudice in allowing this witness testimony. For all these reasons, I did not exclude Ms. Mulder from testifying at this proceeding.
ISSUES
5The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $3000.00 per month for attendant care proposed by Kim Richards PSW submitted September 30, 2022, for period September 1, 2022, to September 30, 2022?
iii. Is the applicant entitled to $400.00 per month for attendant care benefits proposed by Kim Richards PSW submitted October 4, 2022, for period October 1, 2022, to October 4, 2022?
iv. Is the applicant entitled to $3000.00 per month for attendant care benefits proposed by Kim Richards PSW submitted August 21, 2022, for period October 5, 2022, to May 29, 2023
v. Is the applicant entitled to $4,943.81 for attendant care benefits proposed by Innovative Occupational Therapy Services submitted June 21, 2022, for period May 30, 2022, to ongoing?
vi. Is the applicant entitled to $2,361.00 for physiotherapy services proposed by Accelerated Health and Wellness Centre in a treatment plan/OCF-18 dated June 21, 2022?
vii. Is the applicant entitled to $4,199.28 for physiotherapy services proposed by Accelerated Health and Wellness Centre in a treatment plan dated March 21, 2023?
viii. Is the applicant entitled to $ $3,728.01 for psychological services proposed by Dr. Sarah Baker in a treatment plan dated September 18, 2022?
ix. Is the applicant entitled to $520.00 for other assistive devices proposed by Accelerated Health and Wellness Centre in a treatment plan dated October 18, 202?
x. Is the applicant entitled to $12,103.00 for dental services proposed by Dr. Sumi Mahajan of Skylite Dentistry in a treatment plan submitted December 8, 2022?
xi. Is the applicant entitled to $2,200.00 for an occupational therapy and attendant care needs assessment proposed by Innovative Occupational Therapy Service Inc. in a treatment plan submitted April 23, 2023?
xii. Is the applicant entitled to $1,200.00 for an initial assessment for a full TBI work up and management proposed by Dr. Shirley Ha, optometrist in a treatment plan submitted May 23, 2023?
xiii. Is the applicant entitled to housekeeping and home maintenance benefits submitted August 31, 2021 in the amount of $100.00 per week from August 19, 2021 to ongoing?
xiv. Is the applicant entitled to $65,161.00 for a swim spa and annual maintenance/cleaning proposed by Innovative Occupational Therapy Services Inc. in a treatment plan submitted February 18, 2024.
xv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xvi. Is the applicant entitled to interest on any overdue payment of benefits?
6The applicant withdrew issue #2 as listed in the CCRO.
RESULT
7The applicant is not catastrophically impaired.
8No funds are available for attendant care or the treatment plans.
9The applicant is not entitled to interest.
10The respondent is not liable to pay an award.
ANALYSIS
Catastrophic Impairment – Criterion 7
11I find that the applicant is not catastrophically impaired under Criterion 7.
12A catastrophic impairment under Criterion 7 results when, as a result of an accident, an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating scheme in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides 6th edition”), where the impairment score is combined with a physical impairment rating from Criterion 6, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), and results in a 55% or more Whole Person Impairment (WPI) rating.
13The medical reports in evidence provide the following WPI ratings for physical and mental/behavioural impairments:
Impairment
Applicant’s Ratings
Respondent’s Ratings
Head injury & headaches
10%
0%
Cervical spine
7%
Lumbar spine
5%
Grip strength
6%
Lower extremity
Right knee: 10% Left knee: 4%
Right knee: 10% Left knee: 3%
Medication
5%
3%
Skin
3%
Chronic pain
5%
Mental & behavioural
30%
0%
Total: (Using the Combined Values Chart from p. 322 of the Guides)
59% WPI
20% WPI (Rounded as per instructions from p.9 of the Guides)
Head injury and Headaches
14The applicant relies on the 10% WPI rating for head injury and post-traumatic headaches found in the Catastrophic Impairment Rating Report dated October 25, 2022 by Dr. Marciniak, physician.
15The respondent submits that there is no evidence confirming that the applicant sustained a head injury or that he has experienced accident related headaches. The respondent further submits that Dr. Marciniak lacks the qualifications and expertise diagnose a traumatic brain injury and related headaches. In its view, this rating should not be accepted.
16Dr. Marciniak is not a neurologist. There is no evidence to prove he has the qualifications to make neurological diagnoses such as brain injuries and post-traumatic headaches. Consequently, I give little weight to his diagnosis.
17Dr. Marciniak rated the head injury under Chapter 4, Table 23 of the Guides. This table is complex. It requires assessors to rate the impairment of the spinal nerves in the head and neck region due to a sensory abnormalities or loss of strength. This is done by identifying the nerve and the WPI percentage from Table 23. The assessor then rates the severity of the impairment according to Table 20. The final step is to multiply the percentage from Table 23 with the percentage from Table 20 to determine the WPI rating. Dr. Marciniak provides a 10% WPI rating but does not explain how he arrived at this rating. He does not identify the nerve being rated, nor the severity of the impairment. As such, it is not possible to understand how he formulated this rating.
18Dr. Marciniak is not a neurologist and lacks the training and expertise to diagnose a neurological condition. Even if he was a neurologist, I still would not accept his impairment rating because he gives no insight on how he derived the rating from Table 23. For these reasons, I do not accept his rating for brain injury and headaches.
Cervical Spine
19Dr. Marciniak rates the applicant’s neck pain at 7% WPI. The applicant argues that this rating should be accepted because the applicant’s neck pain is documented in the bone scan report of Dr. Griesman, physician, dated September 1, 2022 and by Dr. Karabatsos, orthopaedic surgeon.
20The respondent submits that there is no evidence of a neck injury and no basis to accept this WPI rating.
21The hospital Patient Triage Record from day as the accident shows that the applicant denied having neck pain to the paramedics.
22The bone scan shows that the anterior activity in the cervical spine is likely degenerative.
23Dr. Karabatsos completed a s. 25 orthopedic assessment dated December 8, 2023. He opines that there is no evidence of accident related trauma to the applicant’s neck:
Although Mr. Degazio complains of neck and back pain, left knee pain, and a left third trigger finger, there is no evidence on file of any acute traumatic injuries to any of these bodily areas as a result of the subject accident.
24He further opines that the bone scan “was remarkable for osteoarthritis in the cervical spine which in all likelihood is the cause of his current neck pain.” As such, Dr. Karabatsos attributes the applicant’s neck pain to a degenerative condition.
25Dr. Marciniak provides a 7% WPI rating for the cervical spine because of the applicant’s neck pain. The report does not explain why he thinks this pain was caused by the accident. At the hearing, he testified that the absence of neck pain in the hospital records does not mean that the applicant had no neck pain. In his view, hospital staff overlooked the neck pain because they were busy attending to the more serious injury to the applicant’s right knee. This explanation is not persuasive as the denial of neck pain came from the applicant himself. As such, I find that the possibility of the applicant’s neck pain being overlooked, as suggested by Dr. Marciniak, is not supported by the evidence.
26I do not accept Dr. Marciniak’s WPI rating for the cervical spine. This is because the applicant’s denial of neck pain on the day of the accident indicates that his neck was not injured in the accident. This is also because the degenerative changes noted bone scan and Dr. Karabatsos’ opinion do not corroborate that the applicant sustained a neck injury in the accident.
Lumbar Spine
27The applicant relies on Dr. Marciniak’s 5% WPI rating for the lumbar spine.
28The respondent submits there is no evidence of a low back injury from the accident and that this impairment rating should not be accepted.
29Dr. Marciniak’s report provides a 5% WPI rating for the lumbar spine but does not explain how the limitations of the applicant’s back are linked to the accident.
30The Patient Triage Record shows that the applicant denied having back pain on the day of the accident.
31As noted above, Dr. Karabatsos determined that there is no evidence of accident-related trauma to the applicant’s back. Instead, he attributes the applicant’s back pain to the degenerative condition of osteoarthritis.
32Consequently, I do not accept Dr. Marciniak’s rating for the lumbar spine because he does not explain how the applicant’s back pain is related to the accident, and also because the evidence does not support the premise that the applicant’s back pain was caused by the accident.
Grip Strength
33Dr. Marciniak documents a deficiency in the applicant’s right hand grip strength which he rates at a 6% WPI.
34There is no evidence that the applicant sustained an injury which would cause a loss in grip strength. Dr. Marciniak’s report does not explain how he determined that the applicant’s grip strength deficiency relates to the accident.
35Additionally, there is little evidence outside of Dr. Marciniak’s report that the applicant has a grip strength deficiency.
36Aleah King, occupational therapist, completed a s. 25 Occupational Therapy Functional Assessment report dated June 20, 2023. The applicant did not make any subjective complaints related to his right hand. Her testing showed the applicant’s right hand was within functional limits, in a range of greater than 90%.
37The Insurer’s Occupational Therapy Situational Examination dated February 22, 2024, by Leslie Hisey, occupational therapist, reports a subjective complaint of pain and achiness radiating down his right arm. Range of motion testing revealed no deficits.
38Dr. Cameron, orthopedic surgeon, completed a s. 25 report dated March 9, 2023. The applicant did not report any complaints regarding his right hand. Dr. Cameron also did not identify any right hand impairment.
39Dr Taromi, orthopedic surgeon, completed a s. 44 Orthopedic Examination dated February 22, 2024. He found that the applicant’s hands, thumbs, and fingers had a full range of motion. The applicant’s hand grip was symmetric and strong bilaterally.
40I do not accept find Dr. Marciniak’s rating for right hand grip strength because he does not show how this alleged impairment was caused by the accident. As well, Dr. Marciniak is the only person who identified this impairment. I reviewed various assessments by occupational therapists and orthopedic surgeons and there is only one report with a subjective complaint of right arm pain. There is no indication of any right hand impairment in those other reports. As such, the preponderance of the evidence does not support the existence of limitations to the applicant’s right hand grip strength. For both these reasons, causation and a lack of evidence supporting the existence of a right hand impairment, I do not accept this WPI rating.
Medications
41Dr. Marciniak gives a 5% WPI rating for medication. Under Chapter 2 of the Guides, the maximum allowable rating is 3% WPI.
42He lists the various medications used by the applicant, but does not explain how the use of these medications results in an impairment rating.
43The insurer’s Catastrophic Impairment Determination Paper Review dated February 22, 2024 by Dr. Howard Platnick, physician, gives a 3%WPI rating for the for “medication use and reduced symptoms not captured elsewhere.” Dr. Paltnick names three drugs but provides no other explanation for this rating.
44WPI ratings from Chapter 2 of the Guides must establish how the use of medication either masks poor health or causes side effects. I find that the parties have provided an insufficient basis to justify a rating for medications because their experts list medications taken by the applicant but do not undertake the next step which is to explain what the side effects are or how the use of medication improves function, and thereby, masks poor health. Consequently, I reject both Dr. Marciniak and Dr. Platnick’s WPI ratings due to their respective evidentiary gaps. The evidence I have rejected leads me to decline to assign a WPI rating: see Dooman v. TD Insurance Co., 2025 ONSC at paras. 58-64. As the applicant bears the onus of proving the WPI claimed, I find he has failed to meet his burden.
Chronic Pain
45Dr, Marciniak provides a 5% WPI rating for chronic pain. According to his report, this rating is based on functional limitations caused by the accident. At the hearing, he testified that the applicant’s pain is not rateable, but the impairments caused by the pain are rateable, such as impairments to the activities of daily living. He further testified that he used the method in Chapter 15 of the Guides to rate chronic pain.
46Chapter 15 describes how pain is considered within the rating systems of the Guides. Raters assess various aspects of pain and then apply their findings to the impairment percentages in the tables and figures found in other chapters of the Guides. To be clear, the pain itself is not rated. Rather, pain is a factor to be considered when rating an impairment with a table or figure.
47There are three examples of evaluating pain at the end of Chapter 15. In each example, a diagnosis of the pain-affected area is provided and the impact of pain is then considered when making a WPI rating according to the table or other rating method from the applicable organ system in the Guides.
48Dr. Marciniak does not identify the area or organ system afflicted with chronic pain. Yet the area effected by chronic pain and the applicable table or figure in the Guides must be identified in order to understand this rating. Consequently, I do not accept the chronic pain rating because Dr. Marciniak did not identify the table or figure used for this rating, and thus, there is no way to understand how this rating was made.
49Having rejected various ratings, the remaining ratings that the applicant relies on total to a 40% WPI rating:
Impairment
Ratings
Lower extremity
Right knee: 10% Left knee: 4%
Mental & behavioural
30%
Total: (Using the Combined Values Chart from p. 322 of the Guides)
40% WPI
50I find that the applicant is not catastrophically impaired under Criterion 7 because he has not established that his accident related injuries meet the threshold of a 55% WPI rating.
Criterion 8
51I find that the applicant is not catastrophically impaired under Criterion 8.
52The Psychiatric Catastrophic Determination Assessment, dated October 17, 2022, by Dr. Yaroshevsky, psychiatrist, diagnoses the applicant with a pre-existing bi-polar disorder. He further opines that the accident aggravated the applicant’s pre-existing condition and increased various symptoms such as depression and anxiety.
53Dr. Sivasubramanian, psychiatrist, completed an Insurer’s Psychiatry Examination Catastrophic Impairment Determination report dated February 22, 2024. He diagnoses the applicant with having mild traffic related anxiety and other specific trauma and stressor related disorders. He explained in testimony that trauma and stressor related disorders have resulted in mild specific phobias such as traffic, and adjustment disorders.
54Although their diagnosis differ, both psychiatrists agree that the accident caused the applicant to experience psychological symptoms as a result of the accident. As such, I find that the applicant sustained a psychological disorder in the accident.
55A 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 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.
56The 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
Activities of Daily Living (ADL)
57This 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.
58Dr. Yaroshevsky rates the applicant as having a marked impairment in the ADL. At that time, Dr. Yaroshevsky noted self reported behaviours showing psychological impairments in completing the ADL:
“He (the applicant) explained that he spends most of his days sleeping and feeling sorry for himself.”
“He feels much worse in the morning and at times he is unable to get out of bed.”
“He finds difficulty in initiating and finishing tasks because of reduced motivation and energy; he feels tired and physically miserable.”
“He also claims that he lacks the energy and motivation to go on outings that he once enjoyed.”
“He reports that he does not leave his home for extended periods of time for fear of exacerbating pain from the injuries sustained in his accident.”
59Dr. Yaroshevsky also reported pain, fatigue, and physical limitations such as being unable to bend, lift, reach, push or pull which prevented the applicant from completing the ADL and being able to engage in activities he enjoys such as riding his motorcycle. It should be noted that these types of limitations cannot be considered under Criterion 8 as these are not psychological impairments.
60Two years later, the applicant improved both his physical and psychological functioning. Dr. Sivasubramanian’s report states that that the applicant advised the following:
In the summer, the applicant golfs using a cart two days per week and goes to the gym three days per week;
In winter, the applicant attends a Wellness Centre in a long term care facility and uses the gym and swimming pool five days per week;
Is sexually active with a few different women;
Brings groceries to his mother and takes her to doctor’s appointments;
He cooks on the barbecue or air fryer;
He can do his laundry.
Manages bills independently.
61At the hearing, the applicant testified that he works out during the week and that he works out “hard.” On the weekends he uses his stationary bike, sauna, and jacuzzi at home.
62The applicant testified about his vacation to Peggy’s Cove, Nova Scotia.
63The applicant testified about his excitement when his dog gave birth to 10 puppies and about the tremendous amount of work it was taking care of and cleaning up after them.
64The applicant has limitations, but these are primarily physical limitations that do not allow him to do certain things. For example, he cannot cut grass or shovel the snow anymore. He can walk, but only short distances because of the damage done to his knees in the accident.
65The applicant’s psychological limitations are minor and are not a significant factor in regard to his ability to function and complete the ADL. Consequently, I find that his impairments are compatible with most useful functioning, and as such, he has a Class 2, Mild impairment rating in the ADL.
Social Functioning
66Social 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.
67The report of Dr. Yaroshevsky rates the applicant as having a marked impairment in social functioning. This rating was based on various self reported behaviours that show the applicant was isolating himself and socially dysfunctional:
“Mr. Degazio described a strong inclination to withdraw from others and the world, to escape into a kind of retreat.”
“Since the time of the subject accident, the pain has interfered with his ability to participate in social activities that he previously enjoyed.”
“His mood fluctuations have led to extraordinary relationship problems for him.”
“His impulsive style of communication tends to alienate others.”
“From his report, it would seem that he has become increasingly self-involved and unable to interest himself, or care about, the needs and feelings of others.”
“He has great difficulty forming and maintaining relationships now.”
“As a result of both his physical and psychological limitations, Mr. Degazio's relationships with his relatives and friends have been seriously disturbed.”
“His involvement with his family is chaotic rather than productive.”
“He said that he does not like crowds, he gets easily distracted by noise and finds it difficult to focus.”
“He prefers to be alone and has the tendency to withdraw from others.”
68Mr. Alan Templain, a long time friend of the applicant, testified that the applicant had a temper and would “sound off” before the accident. However after the accident, the applicant deteriorated month after month until the applicant’s yelling and temper caused Mr. Templain to no longer spend time with the applicant.
69Mr. Templain also testified that the applicant always goes to funerals and keeps up with social obligations. He further testified that the applicant is a compassionate person.
70Mr. Templain’s testimony is consistent with some of the information found in Dr. Yaroshevsky’s report. In particular, that the applicant’s communication style alienates others and that he has difficulty maintaining relationships.
71Even so, the applicant testified to having a good relationship with his mother and other family members. He testified to sitting on his front porch and saying hello and speaking with neighbours. Despite his physical limitations, he testified to enjoying vacations and playing golf with friends. In my view, it is also notable that the applicant makes a point of showing respect to friends and family who have passed away by attending their funerals. This is clear indication of empathy and trying to get along with others.
72Dr. Sivasubramaniam found that the applicant has no impairment in social functioning. This is due to reports of him having anger management issues prior to the accident.
73I do not agree with Dr. Sivasubramanian’s opinion because the applicant reported being more irritable since the accident, which is confirmed by the testimony of Mr. Templain. Even so, the applicant’s impairment levels are compatible with most useful functioning. For this reason, I find that he has a Class 2, Mild impairment in the area of social functioning.
Concentration, persistence, and pace (CPP) and adaptation
74The 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.
75Having found that the applicant has one mild and one moderate impairment, 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.
Attendant care and treatment plans
76The applicant has exhausted the non-CAT limits of his medical rehabilitation benefits. As such, I find that no analysis for the attendant care benefit and the treatment plans is required as no funds are available to fund these benefits.
Interest
77Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as no overdue benefits are owing.
Award
78The 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.
79The applicant made no submissions on an award. As such, there is no basis to find that the respondent is liable to pay an award.
ORDER
80The applicant is not catastrophically impaired.
81The remainder of this application is dismissed.
Released: October 2, 2025
__________________________
Harry Adamidis
Adjudicator