Citation and File Number

Citation: Ramalingam v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-006263/AABS Licence Appeal Tribunal File Number: 24-006263/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:

Jenarththiny Ramalingam, Applicant

and

Wawanesa Mutual Insurance Company, Respondent

Decision

Adjudicator: Harouna Saley Sidibé

Appearances: For the Applicant: Harjit Dubb, Counsel For the Respondent: Morgan MacDonald, Counsel

Heard: By way of written submissions

OVERVIEW

1Jenarththiny Ramalingam, the applicant, was involved in an automobile accident on June 18, 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 the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment (“CAT”) as defined by the Schedule?

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 22, 2019, to date and going?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons below, I find that:

1. The applicant has not sustained a CAT impairment as defined by the Schedule.
2. The applicant is not entitled to an IRB.
3. As no benefits are owing, the applicant is not entitled to interest.

ANALYSIS

Has the applicant sustained a CAT impairment?

4I find that the applicant has not established that she sustained a CAT impairment under Criterion 7 and Criterion 8 of the Schedule.

5A CAT impairment is a legal definition and not a medical test, although the legal test involves consideration of medical evidence. The criteria for establishing CAT are set out in s. 3.1(1) of the Schedule. The applicant has the onus of proving, on a balance of probabilities, that she has suffered a CAT impairment as a result of the subject accident.

6The applicant reports ongoing physical, psychological, and functional impairments from the 2018 accident. Physically, she has chronic neck and low-back pain, cervicogenic headaches, sleep issues, and fatigue, with reduced ability for standing, bending, and lifting. Psychologically, she experiences anxiety, depression, forgetfulness, poor concentration, social withdrawal, and difficulty with multi-step tasks. Functionally, these impairments hinder her household tasks, parenting, participation in community or social activities, and work duties, especially those requiring physical or cognitive effort. These form the basis of her claim under Criterion 7 and Criterion 8.

The applicant does not meet the CAT threshold under criterion 7

7For the reasons set forth below, I find that the applicant has not established that she sustained a CAT impairment under Criterion 7.

8To qualify under Criterion 7, the applicant must prove a Whole Person Impairment (“WPI”) of 55% or more when physical impairment ratings derived under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (1993) (“AMA 4th”) are combined with mental and behavioural impairment ratings derived under Chapter 14, section 14.6 of the AMA Guides, 6th edition (2008) (“AMA 6th”). The combined rating is calculated in accordance with the Combined Values Table. The burden of proof rests with the applicant on a balance of probabilities.

9The applicant relies on a CAT Impairment Assessment Report prepared by an interdisciplinary team led by Dr. Rodrigo Castro (Chronic Pain/Family Medicine), with input from Dr. R. Basker (Psychiatrist) and Ms. Alima Brown (Registered Nurse). The report concludes a combined WPI of 59% under the AMA Guides, comprised of:

i. Musculoskeletal impairment: 19% WPI (chronic cervicalgia and lumbar pain).

ii. Headaches: 15% WPI; and

iii. Psychological impairment: 41% WPI.

10The applicant submits that these conclusions are supported by standardized instruments, including the Patient Health Questionnaire (PHQ-9), the General Anxiety Scale (GAD-7), the Psychiatric Impairment Rating Scale (PIRS), the Brief Psychiatric Rating Scales (BPRS), and the Chronic Pain Assessment Report, which diagnosed chronic pain syndrome causally related to the accident.

11The respondent submits that the applicant does not meet the 55% WPI threshold under Criterion 7. It argues that the applicant’s CAT assessment relies on ratings from Dr. Castro (Family Physician) and Dr. Hylton (Chiropractor), who are not qualified to assess and rate mental and behavioural impairment under AMA 6th, Chapter 14.6. The respondent further submits that the applicant’s psychiatrist, Dr. Basker, did not provide a Chapter 14.6-compliant rating supported by the required standardized scales or a clear class-based methodology.

12In response to the respondent’s criticism, the applicant asserts that his assessors employed validated psychological tests along with a functional, situational assessment. He also contends that limitations in parenting and domestic tasks should not be mistaken for vocational ability.

13By contrast, the respondent relies on its section 44 CAT assessments by Dr. Julian Mathoo (Physiatry), Dr. Robert Yufe (Neurology), and Dr. Joel Eisen (Psychiatry), supported by occupational therapy evidence, which yielded a combined WPI of 15% (5% physical, 0% neurological, and 10% psychiatric). The respondent also highlights evidence of the applicant’s functional independence in activities of daily living across social, cognitive, and adaptive domains, and notes the applicant’s intermittent return to work after the accident.

14The respondent submits that its assessments are more detailed and methodology-driven than the applicant’s; the applicant responds that his assessments appropriately integrated validated instruments and functional observations. I resolve these competing positions below.

15After considering the totality of the evidence, I find that the applicant has not discharged her burden under Criterion 7 for five reasons:

(a) Weight and qualifications respecting mental/behavioural ratings

16Under Criterion 7, mental and behavioural impairment must be assessed and rated in accordance with AMA 6th, Chapter 14.6. The most reliable evidence of such impairment typically comes from a psychiatrist or psychologist (see: chap. 14.2, AMA, 6th) who applies the chapter’s class-based methodology across the relevant domains and, where appropriate, supports the class selection with standardized measures.

17The applicant’s assessments reported that she developed significant psychological symptoms following the accident, including anxiety, depression, insomnia, cognitive difficulties (forgetfulness and poor concentration), and social withdrawal.

18In the applicant’s assessments, the 41% psychological WPI, which is central to the applicant’s 59% total, is not persuasively supported by a Chapter 14.6-compliant analysis from the psychiatrist (the opinion is provided by Dr. Castro, a chronic pain specialist, with the assistance of a chiropractor, Dr. Hylton). The record does not explain how observed symptoms and functional deficits are linked to the selected percentage. Although the applicant provided PHQ-9, GAD-7, and PIRS/BPRS test scores, the report does not explain how these results were converted into a Chapter 14.6 impairment class or percentage rating. In other words, the assessment includes the raw or categorical scores but does not transparently disclose the methodology used to translate those scores into a quantified percentage impairment rating.

19To the extent that Dr. Castro, in his role as a Family Medicine/Chronic Pain physician, offered opinions on the applicant’s mental and behavioural functioning, specifically his diagnosis of anxiety/depressive disorder with associated phobic features and insomnia, I assign limited weight to those portions of his rating. I otherwise accept his physical impairment findings. Dr. Castro’s expertise is valuable for physical and pain-related issues, but it does not substitute for a psychiatrist’s chapter-compliant rating under AMA 6th.

(b) Methodological concerns and risk of double-counting

20The applicant’s table lists “musculoskeletal impairment” at 19% and a separate “headache/pain” rating at 15%. The AMA Guides caution against double-counting the same pathology or its manifestations across overlapping categories.

21In contrast to the concerns identified in paragraph [17] regarding the psychological rating methodology, the difficulty with the applicant’s pain-related WPI stems from substantive overlap rather than scoring technique. The applicant’s own assessment attributes her headaches to a cervicogenic origin, linking them to the same cervical and lumbar findings that form the basis of the 19% musculoskeletal WPI. Dr. Castro’s report classifies these spinal impairments under the Diagnosis-Related Estimate (“DRE”) model, 5% cervicothoracic (Category II), 5% thoracolumbar (Category II), and 10% lumbosacral with radiculopathy (Category III), all grounded in the correlation he draws between the accident history, subjective complaints, and clinical findings. He then allocates an additional 15% WPI for ‘chronic headaches’ and ‘chronic pain’ using materially the same rationale and without identifying a distinct physiological source or separate functional impact outside the spinal impairments already rated. When headaches are expressly tied to cervical mechanisms and no independent pathology or functional domain is identified, the pain-specific percentage is duplicative of the DRE ratings rather than additive. On this evidentiary record, the additional pain rating does not represent a separate impairment category but reflects the same symptom complex already captured in the musculoskeletal calculations.

22The report does not sufficiently justify a separate 15% WPI that is distinct and non-overlapping with the musculoskeletal rating. The applicant’s calculation does not convince me that the 15% represents a properly segregated, non-duplicative impairment.

(c) Functional evidence inconsistent with a severe mental/behavioural impairment

23The psychological WPI of 41% reflects two diagnoses: insomnia/sleep disturbance (15% WPI; AMA Guides 4/143, Table 6) and a mood disorder (30% WPI; AMA Guides 4/142, Table 3). Although a combined 41% WPI indicates severe mental/behavioural impairment, the report does not clearly show how the applicant’s PHQ-9/GAD-7 scores and observed functional deficits were mapped to the Chapter 14.6 class and percentage. The assessor states the ratings are “based on correlation and consistency between accident history, self-reported symptoms, medical records, objective findings, and clinical impression,” and characterizes both impairments as “compatible with a Traumatic Brain Injury (“TBI”)-specific injury or illness;” however, the report does not specify individual medical record entries, neuropsychiatric findings, or specialist psychiatric methodology linking the insomnia and mood disorder to a TBI, nor does it provide a functional class analysis (e.g., activity, social, concentration/persistence/pace, adaptation). No occupational therapy (OT) functional assessment is cited to corroborate day-to-day restrictions. In the absence of detailed source citations, standardized scoring-to-class conversion, and OT corroboration, the severity implied by 41% WPI is not adequately supported on this record.

24The respondent’s evidence, including occupational therapy observations and the section 44 psychiatric assessment, describes functional independence in basic activities of daily living and social/cognitive domains, with intermittent return to work. While the applicant reports meaningful limitations in parenting and domestic tasks, the overall functional picture described in the independent assessments is not consistent with severe, pervasive psychiatric impairment. For example, the section 44 psychiatric assessor noted intact orientation, coherent thought processes, appropriate behaviour during the interview, and no evidence of cognitive disorganization or marked social withdrawal. Taken together, these observations do not align with the level of functional breakdown typically associated with a 41% mental/behavioural WPI.

(d) Relative persuasiveness and detail of the assessments

25The respondent’s evaluations are more detailed, linking specific findings to the Guides’ criteria and clarifying how observed signs and test outcomes determine impairment categories and percentages. For example, the assessors explicitly anchored their ratings to discrete clinical findings: Dr. Eisen derived the 10% psychological WPI using the required BPRS, GAF, and PIRS scores; Dr. Mathoo’s musculoskeletal findings (0% cervicothoracic, 5% lumbar) were tied to normal range-of-motion testing and the DRE categories in Chapter 3 of the AMA Guides; and these assessors repeatedly referenced collateral medical records, including Legacy Medical Centre clinical notes, Scarborough Health Network hospital records from June 2018, and prior neurological consultations by Dr. Majl, to corroborate their impressions. The respondent also relied on occupational therapy observations from Ms. Perreras’ in-home and community assessments, documented at length in the IE CAT report, which described the applicant as independent in self-care, ambulation, meal preparation, and light home management, with no observed cognitive or emotional deterioration over multi-hour assessment periods.

26By contrast, the applicant’s CAT report provides broader conclusions with limited chapter-specific reasoning, particularly for the psychological rating and the separate pain/headache line item.

(e) Objective neurological and musculoskeletal findings

27The respondent’s physiatry and neurology assessors documented minimal objective deficits supporting, respectively, a 5% physical WPI and 0% neurological WPI.

28The applicant’s materials do not persuasively justify materially higher AMA-4 ratings because (i) the psychiatric portion advances a 41% WPI (15% insomnia + 30% mood disorder) without a transparent Chapter 14.6 conversion from standardized scales to an impairment class/percent. The respondent notes that the applicant’s psychiatrist provided no BPRS/GAF/PIRS scoring and that the 41% figure was instead assigned by non-psychiatric assessors (Dr. Castro/Dr. Hylton) without methodological explanation. By contrast, the s.44 psychiatrist explicitly calculated 10% using BPRS, GAF, PIRS and selected the required median per the Guides. (ii) On the musculoskeletal side, the applicant’s 19% WPI and a separate 15% “pain/headache” WPI are advanced largely as percentage allocations with limited objective correlates (e.g., range-of-motion loss, neurological deficit, imaging-based instability) and no clear analysis to avoid overlap with spinal DRE findings. The respondent’s IE expressly ties spinal ratings to normal exam findings and DRE tables and explains why headaches were either resolved or accounted for within the spinal categories, thereby reducing the risk of double-counting. (iii) Functionally, the independent OT assessments cited by the respondent document independence in self-care, ambulation, community navigation, meal planning/shopping, and sustained attention over multi-hour assessments. These observations do not align with “severe/pervasive” psychiatric impairment and therefore undercut the magnitude of the applicant’s proposed ratings, absent additional objective testing to the contrary.

29Taken as a whole, these considerations lead me to prefer the respondent’s Section 44 evidence on both methodology and rating derivation. In particular, the respondent’s assessors applied the required AMA-4/6 processes and anchored their percentages to identified test scores and objective examination findings, resulting in a combined WPI of 15% (10% psychiatric; 5% musculoskeletal). While I do not adopt every aspect of the respondent’s analysis without reservation, I accept that their ratings reflect the most defensible evidence on this record. Even allowing for reasonable variance, the evidentiary record does not support a combined WPI approaching the 55% threshold under Criterion 7.

30Based on the evidence I accept, I find that the applicant’s most defensible WPI rating is 15%, aligning with the respondent’s Section 44 assessments. The psychiatric component is best reflected by Dr. Eisen’s 10%, based on BPRS, GAF, and PIRS scores, using the AMA Guides' median-selection methodology. The physical part is supported by Dr. Mathoo’s 5% musculoskeletal rating, based on examination findings and DRE categories. Even considering assessment variances, credible evidence does not support a WPI near the 55% threshold under Criterion 7, and the applicant’s proposed 59% is unsupported.

31Accordingly, on a balance of probabilities, I find that the applicant has not sustained a CAT impairment under Criterion 7.

The applicant does not meet the CAT threshold under criterion 8

32For the reasons set out below, I find that the applicant has not met the threshold for a CAT impairment under Criterion 8.

33Under Criterion 8, an applicant must demonstrate a Class 4 (marked) impairment in three or more areas of mental or behavioural functioning, or a Class 5 (extreme) impairment in at least one area, due to a mental or behavioural disorder, such that the impairment precludes useful functioning. These assessments must be conducted in accordance with Chapter 14 of the AMA Guides, which sets out four domains of functioning:

Area or Aspect of Functioning	Class 1: Mild 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-life setting)

34The applicant submits that she meets the Criterion 8 threshold. She further submits that her mental and behavioural limitations are severe enough to constitute a Class 4 (marked) impairment in at least three domains, based on the opinions of her CAT assessment team.

35The applicant relies on findings from Dr. Basker (Psychiatrist) and Ms. Brown (Registered Nurse, functional assessor), who concluded she has marked impairments across all four domains:

i. Activities of Daily Living (ADLs): due to forgetfulness, safety risks (such as leaving pots on the stove), inability to manage household tasks, sleep disruption due to pain, and reliance on others for childcare and scheduling;

ii. Social Functioning: due to avoidance, withdrawal, embarrassment, and minimal engagement with community activities;

iii. Concentration, Persistence, and Pace: due to forgetfulness, difficulty completing multi-step tasks, inability to multitask, and poor stress tolerance; and

iv. Adaptation: due to inability to return to night-shift work, excessive fatigue, and functional decompensation when attempting more demanding activities.

36The applicant argues that the insurer’s Section 44 assessments underestimate her real-world limitations, fail to capture her functioning in a home environment, and improperly attribute accident-related psychological impairments to parenting stressors. She submits that her multidisciplinary team undertook a more detailed and ecologically valid functional assessment and should therefore be preferred.

37The respondent submits that the applicant does not meet the Criterion 8 threshold because she does not have marked or extreme impairments in any of the four domains. The respondent relies on its insurer’s examinations, including home-based occupational therapy assessments by Ms. Faye Perreras and a psychiatric assessment by Dr. Joel Eisen. These assessors found Class 2 (mild) impairments across all four domains.

38The respondent notes its team reviewed more detailed medical records and conducted observations, while the applicant’s team relied on subjective reports and limited collateral information. The respondent claims this led to overstated impairment ratings.

39With respect to Activities of Daily Living, Dr. Eisen found that the applicant’s difficulties are largely attributable to physical symptoms rather than to mental or behavioural impairment. He concluded that the applicant demonstrates only a Class 2 (mild) psychiatric impairment, compatible with most useful functioning.

40Regarding Social Functioning, Dr. Eisen again assessed a Class 2 (mild) impairment, noting maintained relationships and the continued ability to manage routine social interactions.

41For Concentration, Persistence and Pace, he found a Class 2 (mild) impairment, with no evidence of sustained cognitive deterioration that would preclude useful functioning.

42Regarding Adaptation, he found a Class 2 (mild) impairment, noting that the applicant continues to manage childcare and household routines and shows no evidence of psychiatric decompensation under ordinary stress.

43I place greater weight on the respondent’s psychiatric and functional assessment evidence because Dr. Eisen’s opinion is expressed in the terminology and structure of Chapter 14 and is supported by in-home and situational observations by Ms. Perreras. His conclusions are specific to each Criterion 8 domain and anchored in objective behavioural evidence.

44In contrast, the applicant’s Criterion 8 conclusions rely heavily on self-reports that are not consistently corroborated by observed functioning in key domains.

45Activities of Daily Living: The respondent’s in-home and situational OT assessments document independence in self-care (upper- and lower-body dressing without difficulty; daily showering without aids), independent ambulation, including stair navigation with a normal reciprocal gait, and the ability to plan and prepare meals, complete light cleaning (sweeping, washing dishes), and execute multi-step home tasks without observed cognitive or emotional deterioration or the need for breaks over a 2-hour 25-minute assessment period. In the community, the applicant independently directed the driver to multiple locations, navigated a grocery store, located all 25 listed items, and correctly calculated the total cost, again with no deterioration in attention, behaviour, or affect. These observations do not align with a Class 4 impairment that would ‘significantly impede’ useful functioning in ADLs.

46Concentration, Persistence, and Pace: During OT situational testing, the applicant understood and followed instructions without prompting, initiated tasks promptly, maintained focus despite household noise, completed a multi-element activity (meal planning, shopping, route finding, and calculations) to criterion, and showed no distractibility or decline in cognitive performance throughout. The section 44 psychiatrist similarly noted intact orientation, a coherent narrative, and functional concentration for routine tasks (e.g., remembering appointments, managing the children’s schedules with lists), and concluded that impairment was at Class 2 (mild), i.e., compatible with most useful functioning. This evidence directly contradicts the applicant’s claimed marked deficits in sustained attention, task completion, and stress tolerance.

47Given these domain-specific observations, and for the reasons above, I prefer evidence that is grounded in direct functional observation and that differentiates mental/behavioural impairment from pain-driven limitations. On this record, the applicant has not established Class 4 or Class 5 impairment in these domains and thus cannot meet Criterion 8.

48First, the functional observations from the insurer’s examinations show that the applicant performs household tasks, childcare responsibilities, and situational activities without evidence of decompensation or inability to function. This is inconsistent with the pervasive and severe deficits required for a marked or extreme impairment.

49Second, the applicant’s psychiatric evidence does not apply the structured methodology of Chapter 14 and does not persuasively show that her limitations arise from a mental or behavioural disorder rather than pain-related or physical impairments.

50Third, while the applicant credibly reports distress, fatigue, and reduced tolerance for stress, these symptoms do not preclude useful functioning in any domain, let alone three. The respondent’s Class 2 (mild) ratings across the four domains are more consistent with the documented behavioural evidence and the applicant’s demonstrated ability to perform daily and family-related tasks.

51On this record, I am not satisfied that the applicant meets the Criterion 8 threshold.

52Accordingly, on a balance of probabilities, I find that the applicant has not sustained a CAT impairment under Criterion 8.

Is the applicant entitled to an IRB?

53For the reasons set out below, I find that the applicant is not entitled to an IRB after the 104-week mark.

54To receive payment for a post-104-week IRB under section 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

55The applicant received an IRB during the pre-104-week period; that entitlement was terminated by the respondent’s letter dated October 15, 2019, and payments ceased as of October 21, 2019. Accordingly, the applicant’s claim before the Tribunal concerns only the post-104-week period (from October 22, 2019, onward), and no pre-104 entitlement is in dispute.

56The applicant submits that she has remained substantially unable to perform the essential tasks of her pre-accident job and, beyond 104 weeks, is completely unable to engage in any form of suitable employment.

57Before the accident, the applicant worked as a night-shift cleaner.

58The applicant did not provide detailed evidence about the nature of her work duties or her educational and vocational background. However, medical records partially address these gaps. Dr. Castro’s chronic pain assessment (March 9, 2022) notes that the applicant obtained a university certificate in Sri Lanka. In his psychiatric assessment (October 28, 2022), Dr. Baker reports that the applicant completed a Bachelor of Arts degree from Jaffna University in 2010.

59In Dr. Kim’s neurological assessment dated October 8, 2019, the applicant described her work as a full-time restaurant cleaner, including vacuuming, washing rooms, cleaning windows and chairs, and dusting.

60Based on the evidence regarding the applicant’s pre-accident employment and vocational background, I find that the evidence supports that the applicant is reasonably suited for positions involving light to moderate physical demands, as well as other roles consistent with her education and prior work experience.

61When determining whether employment is “reasonably suited,” the Tribunal considers a claimant’s education, training, experience, transferable skills, functional abilities, and the real-world availability of such employment (see Burtch v. Aviva Insurance Company of Canada, 2009 CanLII 479 (ONCA)).

62The applicant submits that she has not returned to work since the accident, has made no sustained attempt to do so due to her impairments, and remains unable to engage in any regular, gainful employment.

63The applicant relies on post-2019 medical assessments describing chronic pain, moderate depression and anxiety, fatigue, and cognitive inefficiency. She argues that these ongoing impairments prevent her from sustaining competitive employment.

64Both Dr. Castro’s Chronic Pain Assessment (March 29, 2022) and Dr. Basker’s Psychiatric Evaluation (October 28, 2022) report that the applicant has not returned to work since the accident. Dr. Castro documents persistent chronic pain, sleep disturbance, reduced physical tolerance, and fatigue, and notes that these symptoms limit her ability to perform prolonged standing, bending, lifting, and other tasks associated with her former night-shift cleaning position; he characterizes her overall prognosis as guarded and identifies functional limitations inconsistent with sustained employment. Similarly, Dr. Basker reports ongoing anxiety, depressive symptoms, and reduced concentration, and records the applicant’s account that she remains unable to resume work because of pain-related sleep disruption, cognitive fatigue, and difficulty managing multi-step tasks. Although neither assessor provides a formal IRB opinion under the Schedule tests, both describe clinical and functional limitations that, in their view, have contributed to her inability to work since the accident.

65The respondent relies on Dr. Kim’s October 8, 2019, neurological assessment, which concluded that the applicant was not substantially unable to perform the essential tasks of her pre-accident job, as well as broader insurer examination evidence. This includes the CAT IE, comprising Dr. Eisen’s psychiatric opinion (Class 2/mild impairments across all domains), Ms. Perreras’ in-home and situational OT assessments documenting functional independence, and the physiatry and neurology findings of Dr. Mathoo and Dr. Yufe. The respondent submits that this combined evidence supports its position that the applicant retains the capacity to perform work for which she is reasonably suited.

66The applicant challenges this conclusion, arguing that Dr. Kim’s report is outdated, addresses only the pre-104-week test, and does not consider her reported deterioration. She submits that the respondent failed to obtain updated post-104 insurer examinations despite new medical evidence

67The respondent acknowledges that Dr. Kim’s October 8, 2019, report did not address the post-104-week test but submits that it remains relevant to the applicant’s functional capacity at the time IRB were terminated. The respondent also notes that the applicant’s post-accident income records (T4 earnings, EI benefits, and business income) demonstrate some continued ability to work during the relevant period.

68The respondent also points to several insurer examinations completed between 2018 and 2019 across multiple disciplines (physiatry, neurology, psychiatry, occupational therapy, orthopaedic surgery, and psychology). While these assessments did not address the IRB tests, the respondent submits that they consistently described the applicant as having minimal functional restrictions during that period and therefore support its position that she retained some work capacity.

69These assessments consistently found:

i. no neurological injuries attributable to the accident (Dr. Kim),

ii. no musculoskeletal impairments preventing light strength work (Dr. Marchie), and

iii. no substantial psychological disability preventing pre-accident employment (Goodfield, psychologist).

70The respondent submits that the applicant’s psychological impairments were assessed as mild and argues that the applicant’s own assessors lacked complete medical records, reducing the reliability of their conclusions.

71The parties agree that the post-104 test is more stringent. The applicant must show a complete inability to engage in any reasonably suited employment.

72While I accept that the 2019 section 44 examinations addressed only the pre-104-week test and cannot, on their own, determine post-104 entitlement, the onus remains on the applicant to prove the post-104 “complete inability”. Moreover, the Divisional Court in Paesano v. Coseco Insurance Co., 2025 ONSC 3245, confirmed that to obtain post-104 IRB, an insured must both apply for and establish a substantial inability within the first 104 weeks; the post-104 standard then imposes a more stringent, ongoing test. On this record, the applicant has not met that combined statutory framework.

73Having reviewed the record, I am not persuaded that the applicant has met this burden for the following reasons.

(a) Lack of persuasive vocational evidence

74The applicant’s 2021–2022 chronic-pain and psychiatric reports document symptoms and their impact, but do not explicitly apply the Schedule post-104 test or link impairments to a complete inability to work. While missing a formal vocational assessment is not decisive, the assessments lack an IRB opinion and do not translate symptoms into job-capacity conclusions aligned with her education and experience. This gap weighs against meeting the post-104 standard.

(b) Competing evidence of retained function

75The record shows ongoing childcare and household functioning, as well as post-accident income activity. In the OT in-home and situational assessments, the applicant independently completed upper- and lower-body dressing; ambulated and managed stairs with a normal reciprocal gait; planned meals, washed dishes, and swept floors; and, in the community, navigated a grocery store, located all 25 items on a list, calculated the total cost, and directed travel to multiple destinations, all without observed cognitive or emotional deterioration. She also reported managing childcare routines when her husband is at work (school drop-off/pick-up, basic care) and driving short local trips as needed. In addition, the respondent filed tax records showing T4 earnings in several years after the accident (2019–2022) and business income in 2021, along with receipt of EI benefits in 2018–2019, indicating at least some ongoing work capacity during the relevant period. While none of this by itself proves employability under the post-104 standard, these functional observations and income records collectively weigh against a finding of complete inability in the absence of strong, vocationally focused medical evidence demonstrating that she cannot perform any work for which she is reasonably suited.

(c) Timing and consistency of the medical record

76The insurer examinations leading up to the termination of IRB consistently identified no substantial disability.

77The applicant cites post-2019 reports, especially Dr. Castro’s March 29, 2022, Chronic Pain Assessment and the 2021 psychological assessment, to argue her condition worsened and prevented sustained employment. However, these assessments do not apply the post-104 test or link symptoms to complete disability. A December 28, 2022, psychology report found she did not meet DSM-5 criteria, and a July 2023 evaluation showed only mild psychiatric impairment, with evidence of independent living and stable behaviour. The respondent's tax records show ongoing earnings, which the applicant’s reports do not reconcile with, due to a complete inability to work. Without expert opinion or vocational evidence linking symptoms to job incapacity, her claim of deterioration after 2019 isn't sufficiently supported by the medical and functional record.

78I do not accept the applicant’s submission that success under the pre-104 test automatically determines the post-104 outcome; the statutory tests are distinct. That said, Paesano confirmed that access to post-104 IRB requires the insured to have both applied for and established a substantial inability within the first 104 weeks; only then does the more stringent post-104 standard apply. Applying the correct post-104 test and considering the full record, the applicant has not proven, on a balance of probabilities, a complete inability to engage in any reasonably suited employment after October 21, 2019, and the evidence does not demonstrate that she satisfied the requisite pre-104 threshold within the 104-week window as contemplated by Paesano.

79Accordingly, on a balance of probabilities, I find that the applicant is not entitled to an IRB.

Interest

80Interest applies to the payment of any overdue benefits under s. 51 of the Schedule. As no benefits are owing, the applicant is not entitled to interest.

ORDER

81For the above reasons, it is ordered that:

i. The applicant has not sustained a CAT impairment as defined by the Schedule.

ii. The applicant is not entitled to an IRB.

iii. As no benefits are owing, the applicant is not entitled to interest.

Released: February 17, 2026

Harouna Saley Sidibé Adjudicator