Licence Appeal Tribunal File Number: 24-013711/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:
Dalya Najat
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Michael Bishop, Counsel
For the Respondent:
Raman Pandher, Counsel
Asal Karimi, Counsel
HEARD by videoconference:
August 5, 6, 7, 8, 11, 12, 2025
OVERVIEW
1Dalya Najat, the applicant, was involved in an automobile accident on August 13, 2022, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The Issues to be decided are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from January 12, 2024, to present?
iii. Is the applicant entitled to an income replacement benefit in the amount of $306.60 per week from May 22, 2024, to present?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3After considering the testimony of all witnesses and reviewing the evidence, I find:
i. The applicant has not established that she sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month.
iii. The applicant is not entitled to an income replacement benefit in the amount of $306.60 per week.
iv. The applicant is not entitled to interest.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
Has the applicant sustained a catastrophic (“CAT”) impairment as defined by the Schedule?
4I find that the applicant has not sustained a CAT impairment as a result of the accident.
5On April 13, 2023, eight months after the accident, the applicant applied to the respondent for a determination that her accident-related impairments meet the definition of a CAT impairment under the Schedule. This initial application for a determination of CAT impairment (OCF-19) was completed by the applicant’s family physician, Dr. Maryam Rostami, based on Criteria 6, 7, and 8. On April 25, 2024, three and a half months short of the two years post-accident mark, a second OCF-19 was completed by Dr. Irina Kay, General Physician, based on Criteria 7 and 8. The current dispute involves whether the applicant sustained a CAT impairment pursuant to s.3.1(1)(7) of the Schedule (known as Criterion 7), and s.3.1(1) (8) of the Schedule (known as Criterion 8).
Criterion 7
6In order to qualify for CAT under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole person impairment (WPI) threshold according to American Medical Association’s Guides to the Evaluation of Permanent Impairment (Guides). The psychological impairment, excluding traumatic brain injury, is determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the Guides, 6th edition, 2008. The physical impairment or combination of physical impairments ratings are determined in accordance with the Guides, 4th edition. When combined using the Combined Values Table of the Guides, the ratings must result in 55 per cent or more impairment of the whole person (WPI).
7Pursuant to s.3.1(2)(b), unless two years have elapsed since the accident, an assessment conducted by a physician three months or more after the accident must determine that; (i) the insured person has a physical impairment or combination of physical impairments determined in accordance with paragraph 7(1) that results in 55 per cent or more impairment of the whole person; and (ii) the insured person’s condition is unlikely to improve to less than 55 per cent impairment of the whole person.
8To obtain the WPI% rating under Chapter 14, 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.
9The applicant submits that she has sustained a CAT impairment under Criterion 7. She relies on the Multi-disciplinary Catastrophic report dated April 1, 2024, which determined the applicant has suffered a 58% WPI. The executive summary report was completed by Dr. Irina Kay, General Practitioner; the orthopaedic assessment report completed by Dr. Tejedin Getahun, Orthopaedic Surgeon; the psychological assessment report completed by Dr. Leon Steiner, Psychologist; and the Occupational Therapy ADL and Situational Assessment report of Deena Rogozinsky, Occupational Therapist.
10The respondent submits the applicant has not proven that she suffers a CAT impairment under Criterion 7 and relies on the following Insurer Examinations (IE): Catastrophic Impairment Executive Summary Report of Dr. Ben Meikle, Physiatrist, dated January 8, 2024, which considered the Catastrophic Physical Medical and Rehabilitation Assessment report of Dr. Shariff Dessouki, Physiatrist; and Catastrophic Impairment Psychiatry Assessment Report of Dr. Emily Gavett-Liu, Psychiatrist; Catastrophic Impairment Community Functional Assessment Report and Catastrophic Impairment ADL Functional Assessment Report of Ms. Laura Youm, Occupational Therapist. The respondent also relies on the Catastrophic Impairment Executive Summary Report dated May 2, 2024, of Dr. Meikle; Catastrophic Impairment Orthopaedic Surgery Assessment completed by Dr. Jacqueline Auguste, Orthopaedic Surgeon; Psychological Addendum Report Dr. Jonathan Siegel, Psychologist dated May 3, 2024; Dr. Meikle’s addendum executive summary report dated June 14, 2024; Dr. Auguste’s addendum report dated June 14, 2024; and the Catastrophic Impairment Psychiatry Addendum Report of Dr. Gavett-Liu, dated June 14, 2024. Further, the respondent submits that in consideration of the application having been made three and a half months short of two years post-accident applicant has not satisfied s. 3.1(2)(b)(ii) of the Schedule.
11The following chart summarizes the WPI% ratings assigned by each parties’ assessors under Criterion 7.
| AMA Guides 4th Ed. | Applicant’s CAT Ratings Summary | Respondent’s CAT Ratings Summary | Tribunal CAT Ratings Summary |
|---|---|---|---|
| Physical Impairments | |||
| Spine Cervical Thoracic Lumbar Total |
Dr. Getahun 5% 5% 5% 15% |
Dr. Auguste 5% 0% 5% 10% |
10% |
| Upper Extremities Chpt. 3 Table 3 |
Dr. Getahun 14% |
Dr. Auguste 0% |
0% |
| Medication Chpt. 2 Table 9 |
Dr. Getahun 3% |
Dr. Auguste 3% |
3% |
| Sleep Chpt. 4 Table 6 |
Dr. Kay 9% |
0% |
0% |
| Headaches Chpt. 4 Table 23 |
Dr. Kay 5% |
Dr. Auguste 0% |
0% |
| Cognitive/Memory Chpt. 4 Table 2 |
Dr. Kay 14% |
0% |
0% |
| Total WPI Combined Values Chart: |
58% (Correctly calculated - 60%) |
15% (Rounded from 13%) |
15% |
| AMA 6th Ed. Mental/behavioural Impairments | |||
| Psychiatric Rating Table 3, Chapter 14 |
Dr. Steiner 20% |
Dr. Dessouki 10% |
10% |
| TOTAL CRITERION 7 COMBINED RATING | |||
| Total WPI Criterion 7 Combined Values Chart: | 58% (Correctly calculated - 68%) |
22% | 22% |
12I give little weight to the OCF-19 and executive summary report for CAT impairment determination of Dr. Irina Kay, General Practitioner because there are several errors on the OCF-19 and in the report. Furthermore, Dr. Kay’s report does not comply with the Schedule.
13Dr. Kay indicates on the OCF-19 that this is the first application for CAT determination, however it is the second application. The OCF-19 is also not signed by the applicant. Further, the OCF-19 indicates that two years has elapsed since the accident, wherein less than twenty-one months had passed. An application for CAT determination less than two years post-accident requires a physician’s statement that the applicant’s condition is unlikely to improve to less than 55% WPI, which Dr. Kay has not provided.
14In the executive summary Dr. Kay incorrectly calculates the WPI based on the combined values chart in the Guides. More concerning is that Dr. Kay indicates on the OCF-19 that she has not met with the applicant, and in the summary does not provide an explanation for the ratings she provides for sleep, headaches, or cognitive/memory, other than referencing the Tables within the Guide. Dr. Kay provided a rating of 5% for headaches using Chpt. 4 Table 23. However, Table 23 provides a rating scale for impairments of Spinal Nerves in the Head and Neck Region. The applicant has not pointed or directed me to evidence of any impairments of the spinal nerve in the head and/or neck region. Therefore, I do not accept the ratings provided by Dr. Kay for Criterion 7.
15I also place little weight on Dr. Getahun’s rating of the thoracic spine because he states the applicant has a history of a thoracic spinal injury. However, he has not identified medical records on which he is basing his opinion that the applicant suffered “chronic myofascial strain”, and I have not been directed to medical records which corroborate that the applicant has had an injury or complained of pain in her thoracic spine. Further, Dr. Getahun’s rating of the applicant’s upper extremities is based on limited range of motion, however, his examination and report are not corroborated by any of the other medical examiners.
16I am persuaded by the report and testimony of IE assessor Dr. Jacqueline Auguste, Orthopaedic Surgeon. Dr. Auguste performed a physical examination of the applicant on April 4, 2024, and observed that the applicant has full range of motion (ROM) of her shoulders, albeit with pain at the end range. Dr. Auguste concluded that in accordance with the Guides, the applicant should not be rated for Upper Extremities because she does not have any range of motion limitations. Dr. Auguste’s evidence is corroborated by Dr. Dessouki’s testimony and CAT physiatry assessment conducted on October 30, 2023, that the applicant had full ROM in both shoulders. Also, Mr. Jonathan Kaine testified and concluded in his Occupational Therapy assessment for Attendant Care Benefits report dated April 18, 2023, that the applicant did not have limitations in her shoulders, beyond self imposed limitations. I accept Dr. Auguste’s rating of 0% for upper extremities.
17I also place little weight on Dr. Steiner’s rating of 20% WPI for mental/behavioural. Dr. Steiner does not explain the basis for the applicant’s Brief Psychiatric Rating Scale (BPRS) score of 41. Based on the evidence before me and the description in the Guides for the Global Assessment of Functioning (GAF), I find the score of 49, assigned by Dr. Steiner to be unsupported by the applicant’s testimony and medical records.
18I do not accept Dr. Steiner’s assigned scores on the Psychiatric Impairment Rating Scale (PIRS), as summarized in the chart below.
| Table | Description | Category | Score |
|---|---|---|---|
| Table 14.11 | Self-Care, Personal Hygiene, and Activities of Daily Living | Moderate impairment | 3 |
| Table 14.12 | Role Functioning, Social and Recreational Activities | Severe impairment | 4 |
| Table 14.13 | Travel | Moderate impairment | 3 |
| Table 14.14 | Interpersonal Relationships | Severe impairment | 4 |
| Table 14.15 | Concentration, Persistence, and Pace | Severe impairment | 4 |
| Table 14.16 | Resilience and Employability | Severe impairment | 4 |
19I find that the preponderance of evidence does not support Dr. Steiner’s ratings for Table 14.12, 14.13, 14.14, 14.15, and 14.16, which based on the PIRS rating descriptions. I find Dr. Steiner has not provided persuasive explanation as to why he has assigned these ratings.
20I find that the applicant has not established that she has a 55% WPI and therefore has not proven on the balance of probabilities that she suffered a CAT impairment under Criterion 7.
Criterion 8
21In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the Guides 4th edition 1993. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as outlined 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 | |||||
| Adaptation (Deterioration in a work-like setting) |
22Pursuant to s.3.1(3)(b) of the Schedule, unless two years have elapsed since the accident, a physician must state in writing that the insured person’s impairment is unlikely to improve to less than a class 4, marked impairment in three or more areas of function that precludes useful functioning, due to mental or behavioural disorder.
23The applicant submits that she has marked impairments in the functional areas of social functioning, concentration, persistence and pace (CPP), and adaptation. The applicant relies on the Psychological Assessment for CAT Determination report of Dr. Leon Steiner, Psychologist, dated April 1, 2024.
24The respondent submits that the applicant has a mild impairment in the functional areas of activities of daily living (ADLs), and social function, and has suffered a moderate impairment in the functional areas of CPP, and adaptation, which does not establish she has a CAT impairment under criterion 8. The respondent relies on the Catastrophic Impairment Psychiatry Assessment Report and testimony of Dr. Emily Gavett-Liu. The respondent further submits, in consideration of the application having been made three and a half months short of two years post-accident, the applicant has not established that the applicant’s impairment is unlikely to improve to less than a class 4, marked impairment in three or more areas of function that precludes useful functioning, due to mental or behavioural disorder.
25The following chart summarizes the ratings assigned by each parties’ assessors under Criterion 8.
| 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 |
|---|---|---|---|---|---|
| ADLs | Respondent | Applicant | |||
| Social Functioning | Respondent | Applicant | |||
| CPP | Respondent | Applicant | |||
| Adaptation | Respondent | Applicant |
ADLs
26The activities of daily living are defined in the Guides:
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities…in the context of the individual’s overall situation, 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.
27The parties agree the applicant does not have a marked impairment in the functional area of ADLs and therefore there is no dispute on this question. I also find the evidence is in support of that conclusion.
Social Functioning
28Social Functioning is defined in the Guides:
An individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired 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.
29The applicant submits that her marriage has frayed, and her sons moved out of the applicant’s house because of the stress of looking after her mother. Dr. Steiner provided the applicant with a rating of a marked impairment in the area of social function.
30The respondent relies on the report of Dr. Gavett-Liu, who provided a rating of a mild impairment.
31I accept the applicant’s psychological diagnoses of 1) Adjustment Disorder, with mixed anxiety and depressed mood, and 2) Somatic Symptom Disorder, with predominant pain, persistent, moderate, as provided by Dr. Gavett-Liu in her report and testimony. However, diagnoses alone does prove the applicant social function is significantly impeded.
32I place little weight on the report of Dr. Steiner rating of a marked impairment because he surmises that the applicant’s marriage has been negatively impacted by the accident, however, I note that she was not married at the time of the accident and her husband arrived in Canada in June 2023. Therefore, a comparison between her pre- and post-accident relationship cannot be made. Dr. Steiner also noted in his report that the applicant perceives she is a burden and that is why her sons moved out of her home and in with their father. Based on the report of Ms. Youm, Occupational Therapist, the applicant’s sons moved out in late November 2023. I note that I have not heard testimony from either of her sons as to why they moved out of her home. I also note that collateral interviews were not completed with the applicant’s family members. I find that the evidence before me does not support that the applicant has had altercations, or a deterioration of her current marital relationship.
33I have taken into consideration that during her assessments with Dr. Steiner and Dr. Gavett-Liu, the applicant denied a fear of strangers. I place little weight on the applicant’s testimony that before the accident she had a social life with her colleagues, because she also acknowledged that she worked ‘all the time’ and did not go out. Further, she testified that she attended her clients’ homes, and I did not hear testimony about when she would see her colleagues or what activities they engaged in. I note that the applicant had also reported to Dr. Gavett-Liu that her social life has not changed post-accident. The applicant reported to both Dr. Gavett-Liu and Dr. Steiner that she did not have close friends before the accident nor does she now.
34I have considered the testimony of the applicant who testified that she speaks with her children ages 19 and 22 on a bi-weekly basis, and they visit her. She speaks with each of her sisters who live in Iraq on a regular basis, two or three times each week, although she feels fatigued from holding the telephone. She sponsored her husband to immigrate to Canada. This is corroborated by her report to Dr. Steiner that she divorced her first husband in 2021 and remarried, and he arrived in Canada from Iraq in 2023. The applicant testified and also reported to Dr. Gavett-Liu that her husband is supportive and understanding. I find the evidence of the applicant’s ongoing relationships supports that the applicant has social function that does not rise to a level of being significantly impeded.
35Dr. Gavett-Liu also opined that the applicant’s condition could improve with appropriate treatment, before the two-year post-accident date, and does not meet the test for stability as required by the Guides. Dr. Steiner concluded that one and a half years has elapsed since the accident and “as such” the applicant is considered stable for the purpose of catastrophic rating. Dr. Steiner does not opine that her condition is unlikely to improve to less than 55 per cent impairment of the whole person. I do not accept that the passage of one and a half years since the accident, is on-its-own the determining factor that an applicant’s condition is stable, or that her condition will not improve. I find this statement does not satisfy the requirement under s.3.1(2)(b)(ii) of the Schedule.
36As a result, I find the applicant has not established on a balance of probabilities that she has suffered a marked impairment in the area of social functioning.
37Having found that the applicant does not have a marked impairment in the areas of ADLs and social function, it follows that the applicant cannot establish that she has a marked impairment in three out of four areas of function. Therefore, the applicant has not proven on a balance of probabilities that she suffers a CAT impairment under criterion 8 of the Schedule.
Is the applicant entitled to Attendant Care Benefit in the amount of $6,000.00 per month from January 12, 2024, to present?
38I find the applicant is not entitled to attendant care benefits (“ACB”) in the amount of $6,000.00 per month.
39Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant, to a maximum of $3,000.00 per month, if the insured person did not sustain a CAT impairment as a result of the accident. If the insured person suffered a CAT impairment as a result of the accident, the maximum limit rises to $6,000.00 per month.
40Section 18(3) of the Schedule limits the sum of the medical, rehabilitation, and attendant care benefits paid, for any one accident, to $65,000.00 plus any applicable harmonized sales tax, unless the person has sustained a CAT impairment, in which case the limit is set $1,000,000.00.
41The applicant submits that she is entitled to ACB whereas the respondent’s denial of ACB is based on her non-CAT determination. The applicant relies on the Form 1 completed by Jennifer Moore, Occupational Therapist, on September 26, 2022, and submits that she is entitled to $6,000.00 per month in ACB.
42The respondent submits that ACB was approved in the amount of $1,291.29 per month based on a Form 1 completed by Jonathan Kaine, Occupational Therapist on April 5, 2023, however, because the applicant has exhausted the $65,000 non-CAT benefits, she is no longer entitled to ACB, whereas she has not been determined to have suffered a CAT impairment.
43On the basis that I have found the applicant has not suffered a CAT impairment as defined by the Schedule, it follows that the applicant is limited to a maximum of $3,000.00 per month for ACB and a lifetime maximum of $65,000.00 for medical, rehabilitation, and attendant care benefits as a result of this accident, which has been exhausted.
44For the reasons above, I find the applicant is not entitled to ACB in the amount of $6,000.00 per month.
Is the applicant entitled to an income replacement benefit in the amount of $306.60 per week from May 22, 2024, to present?
45I find the applicant is not entitled to income replacement benefit (“IRB”).
46Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
47To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience, as a result of and within 104 weeks after the accident.
48The accident occurred on August 13, 2022. The pre-104-week period ends on August 10, 2024. Therefore, I must decide if the applicant is entitled to pre-104-week IRB, and if so, then I must decide if the applicant is entitled to post-104-week IRB.
49The applicant submits that she was working before the accident and was paid IRB following the accident. The quantum is not in dispute. In support that she is incapable of performing the essential tasks of her pre-accident employment, the applicant relies on her application for Ontario Disability Support Program dated September 7, 2023, with the ODSP Health Status Report completed by Dr. Rostami, dated September 26, 2023, as well as her Canada Pension Plan Disability Benefits Medical Report completed by Dr. Rostami dated February 8, 2024. Further, the applicant submits that as a result of her accident-related injuries she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
50The respondent submits the applicant is capable of returning to her pre-accident employment as a Personal Support Worker and relies on the Functional Abilities Evaluation with Hypo Job Site Analysis Report of Michelle Becker, Kinesiologist dated May 25, 2023. The respondent also relied on the multi-disciplinary assessment reports for IRB as follows: General Practitioner Assessment Report of Dr. Pankaj Bansal, MD; Psychology Assessment Report of Dr. Jonathan Siegel, Psychologist; Psychology Assessment and Neuropsychology Assessment Reports of Dr. David Kurzman, Neuropsychologist; Neurology Assessment of Dr. Davar Nikneshan, Neurologist; and Orthopaedic Surgery Assessment of Dr. Jacqueline Auguste, Orthopaedic Surgeon. All of the assessors agree the applicant does not suffer a substantial inability to perform the essential tasks of her employment.
51I note that I was not directed to evidence of the applicant receiving payment for IRB.
Pre-104-week IRB
52The applicant directed me to the ODSP application, Health Status Report and Activities of Daily Living report completed by Dr. Rostami, Family Physician. The report refers to the applicant having a learning disability, depressed mood, anhedonia, and poor concentration, which Dr. Rostami opines causes restrictions in her ability to complete self-care, paying bills, keeping appointments, and with social interactions. Dr. Rostami’s clinical notes and records from August 4, 2022, one week pre-accident indicates the applicant is very lonely and that she has depression. Further, the CPP-D application Medical Report completed by Dr. Rostami relies on anemia (fatigue and weakness) hypothyroidism, and diabetes to support the application. I find that the applicant’s learning disability, anemia, hypothyroidism and diabetes were pre-existing and therefore cannot be taken into consideration when determining if the applicant suffers a substantial inability to perform the essential tasks of that employment as a result of the accident. The evidence the applicant is relying on does not speak to the essential tasks of her employment or what she is substantially unable to do post-accident.
53The only documentation of the applicant’s essential tasks of employment to which I was directed is the Functional Abilities Evaluation (FAE) with Hypo Job Site Analysis Report of Michelle Becker, dated May 25, 2023, which was completed at the request of the respondent for assessment of entitlement to IRB. In her testimony, the applicant confirmed the essential tasks as found in the report, and denied any ability to complete these tasks. She stated she is too weak, becomes faint, and has too much pain for any activity.
54I did not hear evidence as to what injury or medical condition results in her weakness and faintness. I cannot presume these are a result of her accident-related injuries, or that her pre-existing conditions were made worse by the accident.
55The following charts identify the physical demands and tasks rated by the applicant for her Personal Support Worker position:
| STRENGTH | Check if Required | Frequency | Description |
|---|---|---|---|
| Lifting/Lowering: floor level to waist level | X | X | 10-12 lbs; laundry, groceries, pots and pans, cleaning supplies |
| Lifting/ Lowering: Bench to shoulder | X | X | Putting clothes away for client, pots and pans (up to 10 lbs) |
| Lifting/ Lowering: Floor/ waist to overhead | Reported not required | ||
| Carrying: Bilateral and unilateral | X | X | 10-12 lbs; laundry, groceries, pots and pans, cleaning supplies |
| Pushing/Pulling: | X | X | Full body; Vacuum, brooms Upper body; making the beds, light cleaning such as dusting |
| MOBILITY | Check if Required | Frequency | Description |
|---|---|---|---|
| Sitting | X | X | Between clients and with clients |
| Standing | X | X | Intermittent with walking |
| Walking | X | X | Intermittent with standing |
| Foot Activation | X | X | Walking and standing and driving |
| Twisting/Turning | Reported not required | ||
| Ladder climbing/ stair climbing | X | X | Stairs may be encountered at home, usually an elevator is available |
| Lateral Bending | X | X | Functional and dynamic for making beds and cleaning |
| Bending/Stooping | X | X | Functional and dynamic when performing meal preparation, helping client with personal care, cleaning |
| Crouching Squatting | X | X | For sustained low level or alternative to bending when putting socks or shoes on |
| Kneeling | X | X | Can be alternative to crouching not normally required. |
| DEXTERITY | Check if Required | Frequency | Description |
|---|---|---|---|
| Fingering | X | X | Food preparation, sorting food, paper work, meal preparation |
| Handling -right (if dominate hand) -left -either | X X | X | Cleaning, meal preparation, helping client |
| Gripping/ Grasping | X | X | Light grip required |
56I am persuaded by the FAE report of Michelle Becker dated May 25, 2024, in which she opined that the applicant’s pre-accident employment required light job strength because the applicant reported that the applicant was able to select her clients and worked only with clients who had independent mobility. Ms. Becker concluded that the applicant’s position as a Personal Support Worker (PSW) involved light duties based on her clientele’s needs. As a result of functional testing Ms. Becker concluded that the applicant had put forth sub-maximal effort, or inconsistent effort on 69% of the testing. In the dynamic strength testing, there were several activities the applicant refused to attempt or to complete. However, of the testing that was completed, Ms. Becker concluded that the applicant was capable of performing her duties.
57I find the applicant’s sub-maximal effort during testing was corroborated by Dr. Auguste, Orthopaedic Surgeon, who opined that the applicant sustained WAD 1-2 cervical strain/sprain, a lumbar strain/sprain and a bilateral shoulder strain/sprain as a result of the accident. During testing the applicant demonstrated self-limiting behaviour during active range of motion tests, yet on passive motion testing she had full functional range. These findings were corroborated by Dr. Shariff Dessouki, Physiatrist during his assessment on October 30, 2023. Dr. Auguste opined that from a physical perspective, the applicant does not suffer a substantial inability to perform the essential tasks of her work as a PSW.
58From a physical perspective, based on the testing that was conducted and observed, I accept the conclusions of the assessors that the applicant is capable of performing the essential tasks of her employment as listed in the FAE report.
59From a psychological perspective, the applicant’s performance efforts were also a documented by her assessors. Dr. Siegel concluded in his report dated May 25, 2023, that due to validity concerns he could not confirm a diagnosis. Dr. Seigel testified that the applicant’s test scores more likely than not were the result of self-limiting behaviour. He explained that if a person completed the test blindfolded, the average score would be 12 out of 24. Based on the applicant’s score, she gave effort to select the wrong answers. In his neuropsychology assessment dated November 27, 2023, Dr. Kurzman identifies concern with the validity of the applicant’s test scores, noting that on formal testing, performance effort was variable and much lower than would be expected. Dr. Gavett-Liu agreed in her November 2023 report that the applicant has a clear tendency to overreport symptoms. Dr. Steiner also noted that the applicant may not have answered questions in a completely forthright manner, and that her response patterns are unusual in that they indicate a defensiveness about particular personal shortcomings as well as an exaggeration of certain problems. Dr. Steiner acknowledged that the clinical scale elevations may overrepresent or exaggerate the actual degree of psychopathology. I find the experts have consistently agreed that the applicant’s performance during assessments is not a true reflection of her.
60I am not persuaded that the applicant is substantially unable to perform the essential tasks of her employment, because the medical evidence does not determine her true capacity or limitations.
61Dr. Gavett-Liu did provide diagnoses of 1) Adjustment Disorder, with mixed anxiety and depressed mood, and 2) Somatic Symptom Disorder, with predominant pain, persistent, moderate. Dr. Gavett-Liu also opined that the accident was the cause of the applicant’s psychiatric impairments. Dr. Steiner diagnosed 1) Other specified disorders specifically associated with stress, and 2) Pain Disorder with Related Psychological Factors. However, diagnoses are not sufficient to establish a substantial inability to perform the essential tasks of employment.
62It is the applicant’s burden to prove that she has a substantial inability to perform the essential tasks of her employment. Even with the applicant’s sub-maximal effort and concerns of testing validity noted by the assessors, the experts agree the applicant is capable of performing the essential tasks of her employment. I have not heard persuasive evidence to dispute the experts’ findings on a balance of probabilities.
63I find that the applicant has not proven on a balance of probabilities that she has a substantial inability to perform the essential tasks of employment. Therefore, she is not entitled to IRBs.
Post 104-week IRB
64I find the applicant is not entitled to post 104-week IRB.
65Having found that the applicant does not meet the test for entitlement to pre-104-week IRBs, it follows that she does not qualify for post 104-week IRB.
Is the applicant entitled to interest on any overdue payment of benefits?
66As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
67I find the applicant is not entitled to an award under s. 10 of Reg 664.
68The 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.
69The applicant did not make submissions or lead evidence on the issue of a s.10 award.
70I find the applicant has not met her burden of proof, on a balance of probabilities that that the respondent unreasonably withheld or delayed the payment of benefits.
CONCLUSION AND ORDER
71For the reasons above, I find the following:
i. The applicant has not established that she sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month.
iii. The applicant is not entitled to an income replacement benefit in the amount of $306.60 per week.
iv. The applicant is not entitled to interest.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: October 2, 2025
Tami Cogan
Adjudicator