Citation and File Number

Citation: Garcia Ortiz v. Intact Insurance Company, 2026 ONLAT 24-000133/AABS

Licence Appeal Tribunal File Number: 24-000133/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.

Parties

Between:

Virginia Garcia Ortiz

Applicant

and

Intact Insurance Company

Respondent

Decision

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Odette Rwigamba, Counsel

For the Respondent: Chelsea Gilder, Counsel

HEARD: By way of written submissions

OVERVIEW

1Virginia Garcia Ortiz, the applicant, was involved in an automobile accident on February 8, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact 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 $480.00 for medical services proposed by Carleton Campus Medicine Clinic in a treatment plan/OCF-18 (“plan”) dated July 11, 2023?

iii. Is the applicant entitled to $845.02 for other goods and services proposed by Inspire Rehabilitation Inc. in a plan dated December 3, 2023?

iv. Is the applicant entitled to $11,300.00 for a Catastrophic Determination Assessment proposed by Omega Medical Associates in a plan dated October 20, 2023?

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?

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

RESULT

3The applicant is not CAT as defined by the Schedule.

4The applicant is not entitled to the plans for medical services, other goods and services, or a Catastrophic Determination Assessment.

5The respondent is not liable to pay an award.

6The applicant is not entitled to interest.

7The application is dismissed.

PROCEDURAL ISSUE – THE APPLICANT’S SUBMISSIONS and evidence

8The applicant submits that, due to the limited allowance for written submissions, she will not repeat the evidence contained in the documents attached to her submissions. She submits that she will instead comment on the issues where the assessors diverged on their opinions. In addition, the applicant indicates that, to assist the Tribunal in reviewing the relevant portions of the evidence, they have been highlighted.

9The respondent submits that, although the applicant refers to the ratings arrived at in her CAT assessment reports dated September 12, 2019, and October 20, 2022, she does not refer to any explanation or basis regarding how the assessors arrived at those ratings.

10The respondent relies on the decision of Ahmadi v. Intact Insurance Company, 2024 CanLII 99643 (ON LAT), where the Tribunal found that the applicant’s case was significantly hindered where she had not pointed to the assessor’s analysis of certain impairments under Criterion 7 (i.e., how the assessor arrived at the ratings).

11The respondent also relies on the decision of Ramadani v. Pembridge Insurance Company, 2024 CanLII 106232 (ON LAT), where the Tribunal indicated that while it was directed to a report, the applicant did not pinpoint where to locate the evidence therein, contrary to the Case Conference Report and Order (“CCRO”). The Tribunal also found that the applicant’s submissions did not direct it to medical opinions or evidence that supported her submissions on the interplay between her physical and psychological injuries. The Tribunal declined to undertake this analysis as a matter of procedural fairness because the parties, and not the Tribunal, bear the onus of leading evidence that supports their arguments.

12I note that the Amended CCRO dated July 16, 2024 set a ten-page limit for submissions. To assist me to properly adjudicate the claim, I requested further submissions from the parties on the issue of Criterion 7. Once again, the respondent argued that the applicant’s further submissions did not provide any reference to an explanation for how the assessors arrived at their ratings and that she is therefore asking the adjudicator to accept the ratings without any supporting evidence or analysis.

13I am not bound by other decisions of the Tribunal; however, I am bound by decisions of higher courts. The Divisional Court has provided direction on this issue. In Wilson v. Intact Insurance Company, 2025 ONSC 5305 at para. 40, the court held that a trier of fact has an obligation to consider the whole of the evidence in reaching a conclusion, even in a situation where counsel did not specifically refer to the evidence.

14I find that, in her submissions, the applicant has referred to the CAT assessment reports, and therefore I must consider them in coming to my decision.

ANALYSIS

The applicant is not CAT as defined by the Schedule

15For the following reasons, I find that the applicant has not demonstrated on a balance of probabilities that she is CAT because of her accident-related injuries.

16The applicant bears the onus to prove, on a balance of probabilities, that she is CAT because of the accident. The test to determine whether the applicant is CAT is a legal test and not a medical one: see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571.

Criterion 7

17The applicant has not met her onus to prove on a balance of probabilities that she is CAT under Criterion 7 because of her accident-related injuries.

18The applicant seeks a CAT determination under Criterion 7. To qualify 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. Chapters 3 and 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) are used by assessors in assigning the appropriate WPI% rating.

19The applicant refers to clinical notes and records and reports indicating that she suffered from various accident-related injuries, i.e. a slight collapse and anterior wedging of the T6 vertebral body of the thoracic spine with at least 30% loss of vertical height, PTSD including features of adjustment disorder with depression, features of a chronic pain syndrome with central sensitization or somatic symptom disorder and a permanent and serious impairment of important physical functions, somatic symptom disorder with predominant pain (persistent, moderate), persistent depressive disorder, and adjustment disorder with anxiety.

20The applicant relies on the Catastrophic Impairment Summary & Analysis Report (“CAT Report”) dated September 12, 2019, which includes a Physiatry Assessment conducted by Dr. Christian Fortin, physiatrist, on August 7, 2019, a Mental/Behavioural Assessment conducted by Dr. Dory Becker, psychologist, on August 6, 2019, and an Occupational Therapy In-Facility Assessment conducted by Lindsay Gaspar, occupational therapist, on August 8 and 9, 2019.

21The assessors concluded that the applicant was CAT under Criterion 7. The following impairments were identified:

i. Medication effects (2% WPI).

ii. Cervicothoracic spine impairment (5% WPI).

iii. Thoracolumbar spine impairment (15% WPI).

iv. Mental and behavioural impairment (40% WPI).

22The assessors opined that the applicant’s physical impairment rating was 21% WPI. When physical and non-physical impairment ratings were combined, the applicant had a 53% WPI [21+40], a score that could be rounded to 55% in accordance with the rounding directive of the Guides.

23The applicant also relies on the CAT Report dated October 20, 2022, which includes a Physiatry Assessment completed by Dr. Fortin on July 26, 2022, a Psychological Assessment as well as a Mental/Behavioural Assessment conducted by Dr. Becker on July 22, 2022, and an Occupational Therapy Assessment conducted by Zainab Bukhari, occupational therapist, on July 28 and 29, 2022. The assessors concluded that the applicant was CAT under Criterion 7, and they arrived at the exact same ratings and score as the assessors from the report dated September 12, 2019.

24The applicant submits that the assessors found on two separate occasions (i.e. in 2019 and in 2022) that the applicant was CAT under Criterion 7, and accordingly, if the Tribunal accepts that she met the criteria on either occasion, it must conclude that she is CAT because of the accident. The applicant further submits that the Tribunal should find that her physical impairment rating is 21% and her combined physical and non-physical impairment ratings can be rounded to 55%.

25The respondent points out that the applicant did not refer to the WPI rating reached by her assessor Dr. Shahzad Shahmalak, psychiatrist. After a CAT psychiatry assessment that took place on November 16, 2023, Dr. Shahmalak opined that under Criterion 7, using a GAF of 48, 34% reflects the appropriate rating of the percentage of WPI attributable to the applicant’s mental and behavioural impairments because of the accident. The respondent submits that, using the Combined Values Chart in the Guides 6th Edition, and even combining with the applicant’s higher physical WPI rating of 21%, results in a WPI of 48%.

26The applicant relies on the CAT reports dated September 12, 2019, and October 20, 2022, which both include Dr. Becker’s mental and behavioural impairment rating of 40% WPI, to come to a total score of 55%. I place less weight on Dr. Becker’s rating, however, because it is not consistent with the rating of the applicant’s other s. 25 assessor, Dr. Shahmalak, who arrives at a mental and behavioural impairment rating of 34% WPI.

27I find that the opinion of the applicant’s assessor, Dr. Shahmalak, based on his assessment on November 16, 2023, that the applicant has a non-physical impairment rating of 34%, does not assist the applicant on the issue of CAT under Criterion 7. Even if I were to find that the applicant has a physical impairment rating of 21% WPI, should I accept Dr. Shahmalak’s findings, the applicant would not meet the threshold that would entitle her to a CAT designation under Criterion 7.

28Further, the applicant does not make submissions, and I am not directed to any evidence with respect to why there might be a change in her level of mental and behavioural impairments from October 2022 to November 2023, when according to Dr. Becker’s evidence, it remained the same in the three years between 2019 and 2022.

29The reports of both assessors were submitted by the applicant. The applicant does not make submissions with respect to why I should accept Dr. Becker’s findings over those of Dr. Shahmalak.

30For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that she is CAT under Criterion 7 because of her accident-related injuries.

Criterion 8

31The applicant has not met her onus to prove on a balance of probabilities that she is CAT under Criterion 8 because of her accident-related injuries.

32The applicant also seeks a CAT determination under Criterion 8. To meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained a marked (class 4) or extreme (class 5) impairment because of the accident in one of the four spheres of functioning due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the Guides. 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)

33The applicant relies on the CAT Report dated September 12, 2019, which indicates that she met the CAT threshold under Criterion 8 with “at times” Marked (Class 4) impairment in two domains. The report notes that, in consideration of all available information, including the functional data provided by Ms. Gaspar, Dr. Becker assigned the following impairment ratings:

i. Activities of Daily Living – Moderate to Marked (Class 3 to 4) impairment.

ii. Social functioning – Mild (Class 2) impairment.

iii. Concentration, Persistence and Pace – at times as low as Moderate (Class 3) impairment and at other times as high as Marked (Class 4) impairment.

iv. Adaptation – at times as low as Moderate (Class 3) impairment and at other times as high as Marked (Class 4) impairment.

34The applicant submits that the CAT Report concluded that she met the CAT threshold under Criterion 8 with “at times Marked (Class 4) impairment” in the domains of Activities of Daily Living and Social Functioning, and she bases her submissions on these conclusions. I find, however, that Dr. Becker indicates in the CAT Report that the applicant is CAT under Criterion 8 based on her “at times Marked (Class 4) impairment” in the areas of Concentration, Persistence and Pace, and Adaptation.

35The applicant also relies on the CAT Report dated October 20, 2022, where the assessors came to all the same conclusions as in the CAT Report dated September 12, 2019.

36The applicant directs me to the CAT Reports September 12, 2019, and October 20, 2022, where there is an indication that Dr. Becker diagnosed the applicant with:

i. Pain Disorder Associated with Both Psychological Factors and a General Medical Condition (DSM-IV-TR)/ Somatic Symptom Disorder with Predominant Pain, Persistent, Severe (DSM-V).

ii. Major Depressive Disorder, Single Episode, Moderate, Chronic (DSM-IV-TR)/ Persistent Depressive Disorder with Persistent Major Depressive Episode, Moderate (DSM-V).

37The applicant also generally submits that Dr. Fortin made the following findings:

i. The applicant suffers from residual thoracic-level pain in association with the T6 vertebral compression fracture and has also developed a chronic myofascial pain process involving the cervical spine, upper trapezii, middle trapezii, rhomboids, and thoracic-level paravertebral musculature.

ii. The prognosis for material improvement in symptoms or function is poor.

iii. The applicant’s symptoms are unlikely to progress.

iv. She can be expected to be vulnerable to the effects of future illnesses and injuries.

v. The applicant will be expected to have a higher degree of disability relative to those living without chronic musculoskeletal pain and will be more likely to require rehabilitation services, support for basic and instrumental ADLs, and adaptive equipment including ambulatory aids.

vi. Her vulnerability to future injuries and medical events will increase as she ages.

38The applicant further submits that, prior to the accident, she reportedly functioned independently and regularly in her self-care and home-care activities, as well as social, vocational, and avocational activities.

39The applicant relies on Dr. Shahmalak’s opinion after his assessment of the applicant on November 16, 2023, that, from a psychiatric perspective, when considering the emotional impact of stress and physical symptom escalation, due to mental and behavioural disorder, the applicant has:

i. A Marked Impairment (Class 4) in Activities of Daily Living,

ii. A Marked Impairment (Class 4) in Social Functioning.

iii. A Moderate Impairment (Class 3) in Concentration, Persistence and Pace.

iv. A Moderate Impairment (Class 3) in Deterioration or Decompensation in Work or Work-Like Settings (Adaptation).

40The applicant points out that, considering these ratings, Dr. Shahmalak concluded that the applicant was CAT.

41The applicant submits that the assessors found on two separate occasions that she was CAT under Criterion 8 due to having a Marked Impairment in Activities of Daily Living, and a Marked Impairment in Social Functioning. Accordingly, the applicant submits that she has sustained a Class 4 Marked Impairment in the domains of Activities of Daily Living and Social Functioning in 2019 and in 2022. Accordingly, the applicant argues, if the Tribunal accepts that she met the criteria on either occasion, then it must conclude that she sustained a catastrophic impairment because of the accident.

42The respondent submits that the assessors in the CAT Reports dated September 12, 2019 and October 20, 2022 indicate that the applicant satisfied Criterion 8 with “at times” Marked (Class 4) impairments in two domains. The respondent argues that the assignment of a range of impairment ratings (i.e., “at times”) has been deemed to be problematic and not in keeping with the Schedule: see V.H.W. v. Security National Insurance Company, 2019 CanLII 130605 (ON LAT) (“V.H.W.”) at paras. 72 to 74. The respondent points out that in V.H.W., the Tribunal also noted that the assessor explained that some aspects were mild and others moderate, but it was not clear what exact aspects he was talking about, and that the written report did not delineate what aspects within a particular area were Class 2 or Class 3. The respondent submits that, in this case, similarly, a range of impairment was assigned and there was no reference provided with respect to what aspects within a particular area are in which class.

43I agree with the reasoning in V.H.W, which I will address below.

44I have considered the CAT Reports dated September 12, 2019, and October 20, 2022. I am not persuaded by the assessors’ findings that the applicant is CAT under Criterion 8 based on her “at times Marked (Class 4) impairment” in the areas of Concentration, Persistence and Pace, and Adaptation. The assessors specifically indicate that the applicant’s impairment in these areas was at times as low as Moderate (Class 3) and at other times as high as Marked (Class 4).

45I adopt the Tribunal’s reasoning V.H.W. at para. 73 in finding that a range or splitting of classes leads to uncertainty and ambiguity for an adjudicator and denies the adjudicator the aid of the word descriptors in the Guides in assessing the evidence. The word descriptors are critically important because they assign meaning to each of the classes. Accordingly, if splitting of classes were to be an accepted practice in rating impairments under the Guides, this would lead to difficulty in the analysis regarding the degree to which the applicant’s function has been impaired.

46I find that to meet the threshold for a CAT impairment under Criterion 8, the applicant must demonstrate on a balance of probabilities that she has sustained a marked (class 4) or extreme (class 5) impairment because of the accident in one of the four spheres of functioning due to a mental and behavioural disorder. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. In this case, the findings from the CAT Reports dated September 12, 2019, and October 20, 2022 are that the applicant’s impairment levels (in the areas of Activities of Daily Living, and Social Functioning) are compatible with some, but not all useful functioning “at times,” and her impairment levels significantly impede useful functioning “at other times.” The applicant does not direct me to evidence with respect to what this means. It is unclear whether the two different levels of impairment apply to all areas in each class, or for how long each level of impairment applies. Accordingly, based on this evidence, I am unable to determine how seriously the applicant’s impairment levels affect her useful daily functioning.

47I have also considered Dr. Shahmalak’s assessment that was conducted on November 16, 2023, where Dr. Shahmalak opined that, from a psychiatric perspective, the applicant had a Marked Impairment (Class 4) in Activities of Daily Living and a Marked Impairment (Class 4) in Social Functioning.

48I find that Dr. Shahmalak’s opinions do not correlate with the opinions expressed by the applicant’s other assessors in the CAT Reports dated September 12, 2019, and October 20, 2022, i.e. that the applicant had a Moderate to Marked (Class 3 to 4) impairment in Activities of Daily Living and a Mild (Class 2) impairment in Social Functioning. I note that the accident occurred in 2015. I am not directed to any reasons why there might be a change in the applicant’s level of impairment from October 2022 to November 2023, when according to the evidence of the applicant’s other assessors, it remained the same in the three years between 2019 and 2022. The applicant does not make submissions, and I am not directed to evidence with respect to how and why the applicant’s level of impairment in Activities of Daily Living would remain the same in 2019 and 2022, and would then deteriorate in 2023, and the applicant’s level of impairment in Social Functioning would be Mild in 2019 and 2022 and would then deteriorate to a Marked level of impairment in 2023.

49For these reasons, I find that the applicant has not met her onus of proving on a balance of probabilities that she is CAT under Criterion 8 because of her accident-related injuries.

50To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

The applicant is not entitled to the plans for medical services, other goods and services, or a Catastrophic Determination Assessment

51The applicant has not met her onus of demonstrating on a balance of probabilities that the plans for medical services, other goods and services, or a Catastrophic Determination Assessment are reasonable and necessary.

52The applicant does not make submissions with respect to the plans, nor does she direct me to any evidence in support of the plans. Further, the applicant does not submit the plans into evidence.

53For these reasons, I find that the applicant has not met her onus of establishing on a balance of probabilities that the plans for medical services, other goods and services, or a Catastrophic Determination Assessment are reasonable and necessary.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

Award

55The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

56For the above reasons, I find:

i. The applicant is not CAT as defined by the Schedule.

ii. The applicant is not entitled to the plans for medical services, other goods and services, or a Catastrophic Determination Assessment.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

iv. The respondent is not liable to pay an award.

v. The application is dismissed.