Licence Appeal Tribunal File Number: 25-002389/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:
Amanda Blackwell
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Nick Todorovic, Counsel
Jamie Davidson, Counsel
For the Respondent:
Megan Murphy, Counsel
Sarah Bedard, Counsel
Court Reporter:
Kim Terryberry
HEARD: by Videoconference:
November 24, 25, 26 & 27
OVERVIEW
1Amanda Blackwell, the applicant, was involved in an automobile accident on July 24, 2020, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant withdrew the following issues at the start of the hearing:
i. Is the applicant entitled to $2,094.96 for physiotherapy services proposed by Active Recovery Clinic in a treatment plan/OCF-18 ('plan') dated December 30, 2022?
ii. Is the applicant entitled to $1,765.11 for psychological services proposed by Mind by Design Psychological Services in a plan dated July 13, 2023?
iii. Is the applicant entitled to $4,283.32 for case management services proposed by Rehab First in a plan dated February 10, 2025?
iv. Is the applicant entitled to $6,780.00 ($23,052.00 less $16,272.00 approved) for catastrophic impairment assessments, proposed by Omega Medical Associates in a plan dated March 20, 2024?
v. Is the applicant entitled to $4,972.00 ($7,458.00 less $2,486.00 approved) for a catastrophic impairment assessment, proposed by Omega Medical Associates in a plan dated March 30, 2023?
vi. Is the applicant entitled to $2,195.00 for a Form 1 Attendant Care assessment, proposed by Rehab First in a plan dated February 10, 2025?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ISSUES
3The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by criterion 7 of the Schedule?
RESULT
4The applicant is not catastrophically impaired under criterion 7.
ANALYSIS
Background
5On July 24, 2020, the applicant was a front seat passenger in a vehicle when another vehicle failed to make a stop at a stop sign and broadsided the vehicle she was in. The car then flipped off of the road and came to a stop upside down. Both vehicles involved in the accident caught fire after the occupants of the car were vacated. Police, fire and paramedics attended the scene, and she was airlifted to Lakeridge Health Hospital from the scene of the accident. The applicant reported that she did not lose consciousness.
6She sustained breaks to her left leg, bottom right leg, right knee, femur and right elbow, humerus and facial abrasions. The applicant also suffers a number of impairments including back pain, headaches, sleep impairments, dizziness and pain on the right side of her neck and shoulder. She also suffers pain in her right arm from her shoulder to her elbow, right hip, right thigh and her lower right leg.
7Due to her injuries, the applicant was airlifted to Lakeridge Health, Port Perry Hospital then subsequently airlifted to Sunnybrook Trauma where she stayed from July 24, 2020 to August 4, 2020, then transferred to St. John Rehab centre for seven weeks of inpatient rehabilitation until October 1, 2020. She also underwent a series of surgeries during the two days post accident.
Catastrophic Impairment Criterion 7
The applicant has not sustained a catastrophic impairment under criterion 7
8The applicant asserts that she sustained a catastrophic impairment within the meaning of s. 3.1(1)7 of the Schedule, referred to as criteria seven.
9The applicant must establish that she sustained physical impairments and a mental or behavioural impairment resulting in a 55% or more whole person impairment (“WPI”) when combined in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Physical impairments are rated using the 4th edition of the AMA Guides, and mental or behavioural impairments using section 14.6 of the 6th edition. WPI ratings are combined using the Combined Values Chart in the 4th edition.
AMA Guides 4TH Ed.
Applicant’s Assessors
Respondent’s Assessors
Tribunal’s Findings
Spine Cervicothoracic Table 73, Section 3.3h Thoracolumbar Spine Impairment Table 74 Section 3.3h
5%
0%
0%
5%
0%
0%
Scarring Table 2, Section 13.5
7% for upper extremity 2% for lower extremity
0% 0%
7% 2%
Headaches Chapter 4 Table 23
8%
8%
Imbalance/Vertigo Chapter 9.1c
7%
0%
Medication Chapter 2 Table 9
3%
3%
3%
Right Upper Extremity Chapter 3 Table 3
7%
13%
13%
Lower Extremity Impairment Table 64, Section 3.2i
15%
15%
15%
Total WPI Combined Values Chart:
46%
29%
41%
Mental/behavioural Impairments
15%
10%
10%
TOTAL CRITERION 7 COMBINED RATING
Total WPI Criterion 7 Values Chart
54% rounded up to 55% as per the AMA Guides
35%
47% rounded up to 50% as per the AMA Guides
10The applicant’s assessors determined the applicant suffers a physical impairment resulting in a 46% WPI and a 15% WPI for psychological resulting in an overall WPI of 54% rounded up to 55% in accordance with the rounding directive in the AMA Guides 4th Edition.
11She relies on the following assessors in support of her position; Occupational Therapists Ms. Elise Freedman and Ms. Kristin Popowich, Dr. Robert Hastings, Physiatrist, Dr. Michel Rathbone, Neurologist, Dr. Getahun Orthopaedic Surgeon, Dr. Giselle Braganza Psychologist, and Lisa Becker, Physiatrist.
12Although the respondent acknowledges the applicant was in a serious accident and suffered injuries, it disagrees with the ratings and submits the applicant’s physical impairments amount to 28% WPI and her mental or behavioural impairment do not exceed a WPI of 10% for a maximum WPI of 35%. It relies on the opinions of Dr. Ato Sekyi-Otu, Orthopaedic Surgeon, Dr. Jonathan Seigel, Psychologist and Ms. Elyse Freedman, Occupational Therapist.
13The respondent’s assessors provided a rating for the applicant’s right upper extremity at a 13% WPI and the applicant’s assessors assessed her at 7% WPI. The respondent takes the position the 13% is the more accurate rating and it should be accepted as it best supports the evidence and the nerve issues in her arm to her elbow that was seriously injured in the accident.
14The assessors agree on the ratings for medication at 3%, and a lower extremity at a 15% WPI rating, although at the hearing the respondent suggested the rating may be high for medication and asks that the rating be reviewed.
Medication 3%
15The AMA Guides provide that an adjustment for the effect of treatment can be made in two circumstances. First, treatment may result in the apparent remission of the person’s symptoms, but it is still debatable as to whether the person has regained their previous status of good health. This may be the case for a person receiving treated for hypothyroidism or diabetes. In that event, the assessor may increase the impairment estimate by a small amount, such as 1% to 3%. Second, treatments such as immunity-suppressing pharmaceuticals or anti-coagulants may cause their own impairments. In that case, the assessor should use the appropriate parts of the AMA Guides to evaluate the impairment, or if such information is lacking, the assessor may combine an estimated impairment percent with the primary organ system impaired.
Since the accident, the applicant was prescribed a number of different medications which were adjusted based on her ongoing impairments while in and out of the hospital. Her prescribed medications included: Hydromorphone, Pregabalin, blood thinners and an anti-anxiety medication as noted in Psychologist Dr. Gary Challis’ report dated November 25, 2022, amongst other documented medication. Even though she was experiencing anxiety and was diagnosed with Chronic Adjustment Disorder with anxiety by Dr. Challis, she testified she discontinued the use of the prescribed medication even though it may have alleviated her anxiety symptoms and improved her activities of daily living, because of the side effects of the medication.
16The applicant testified she is currently taking Pregabalin (aka Lyrica) medication prescribed by Neurologist Dr. Aparna Gupta for the treatment of headaches, and nerve pain which was also confirmed in a consultation note dated October 16, 2024.
17The respondent questions the 3% WPI rating for her medication intake, submitting that rating is too high. It argued that the applicant has used her prescribed medication intermittently as noted in the report of Occupational Therapist Katie Hickling during her assessment on June 11, 2025, therefore a rating of 3% should not be advanced as it is inconsistent with the defined parameters of the AMA Guides. The applicant did not provide a rebuttal to the respondent’s position.
18I find a 3% WPI rating for medication is an appropriate rating for medication for the reasons that follow.
19The applicant testified she has a good reason for the intermittent use of her medication, she testified her prescribed medication has side effects that greatly impact on her ability to function, and it impacts how it makes her feel.
20She reported to Ms. Hickling on June 11, 2025, that Pregabalin causes drowsiness, so she does not take it consistently. However, if she does not take it, it causes her to suffer sleep impairments and headaches, so she has to make a choice. She also reported that the headaches caused her to be irritable, experience nausea and have light sensitivity. In order to experience relief from these headaches she needs to lie down in the dark and rest which affects the functioning of her daily activities. The same conclusion is found in Dr. Gupta’s clinical note on November 18, 2021, her persistent headaches are often associated with nausea, and photophobia.
21Further, in support of the applicant’s position, Dr. Robert Hastings testified that the applicant was taking the prescribed medication to alleviate her pain and headaches, however, the overuse of the medication is exacerbating her migraine symptoms resulting in a cycle which is difficult to break. Dr. Rathbone opined the same in his report dated April 10, 2023, and he diagnosed her with post-traumatic migraine headaches complicated by medication overuse headaches.
22I find the severity of the applicant’s injuries which include broken bones, and multiple surgeries due to the accident necessitated the prolonged use of prescribed pain medication which brought on the diagnosis of post-traumatic migraine headaches complicated by medication overuse headaches. I also find the headaches impaired the applicant’s ability to function on a daily basis. Pursuant to the AMA Guides, the medication has brought on its own impairment which warrants the rating.
23I also find the applicant’s treatment burden meaning the time and effort that obtaining treatment takes from living one’s life is significant because of the complications the applicant experiences from her prescribed medication. I have considered the opportunity cost to the applicant and the choices she has to make and how it affects her ability to function. If she takes the medication, it causes her dizziness which affects her activities of daily living, if she chooses not to take it, she must deal with ongoing headaches and pain and must lie down in a dark room to alleviate her symptoms. I find the medication she is prescribed for pain and headaches warrants a WPI rating because of the strength of the type of medication, the side effects of the medication causing an impairment and the opportunity cost to the applicant warrants a WPI rating of 3%.
Lower Extremities 15%
24The applicant suffered significant injuries to her lower extremities as such both parties’ assessors assigned a 15% WPI. Since both assessors agree, I find no reason to disagree, and I accept that rating.
Spine
25The 4th edition of the AMA Guides addresses impairment of the spine at section 3.3. WPI ratings may be assigned for each of the cervical, thoracic, and lumbar spine regions. If possible, an assessor must place the impairment in a Diagnosis Related Estimate (“DRE”) category, which has a corresponding WPI rating. If more than one spine region is impaired, the regional impairments are combined using the Combined Values Chart to determine the total spine impairment.
Cervicothoracic Spine 0%
26Dr. Rathbone in his report dated March 15, 2024, indicates the applicant suffers persistent symptoms of the cervicothoracic spine since the accident and as a result she suffers ongoing pain. Dr. Hastings in his report dated July 10, 2023, opined he found guarding upon examination of the applicant. Based on their examinations, they found she fits into DRE cervicothoracic category 2 and assigned the applicant a WPI rating of 5% for her cervicothoracic spine under Chapter 3, Table 73 of the AMA Guides.
27Dr. Diane Nam the applicant’s treating Orthopaedic Surgeon from Sunnybrook Hospital provided a comprehensive Independent Expert Report dated June 12, 2023, of the applicant’s treatment history from July 25, 2020, to March 30, 2023. On February 2, 2021, Dr. Nam indicates upon examination of the applicant’s cervical spine there were no signs of radiculopathy, and her reflexes were symmetrical and normal. Dr. Sekyi-Otu the respondent’s assessor found no signs of guarding or other impairments during his examination. Dr. Sekyi-Otu further noted that upon review of Dr. Nam and Orthopaedic Surgeon Dr. Urovitz’s clinical notes and records dated February 9, 2022, it indicates a normal range of motion with no impairments. As such Dr. Sekyi-Otu assigned a DRE cervicothoracic category 1, equal to 0% WPI rating in his report dated August 19, 2024. The respondent submits the applicant did not complain of pain to her cervicothoracic spine to any of her assessors or to Dr. Nam. Based on the opinion of Dr. Nam and the findings of Dr. Sekyi-Otu, the respondent submits a rating should not be advanced.
28I prefer the opinion of Dr. Nam, Dr. Urovitz and the rating of Dr. Sekyi-Oto over that of Dr. Rathbone and Dr. Hastings. I find Dr. Rathbone conducted his assessment over video and I am not persuaded that he was able to accurately assess guarding in that area over video and relied on the applicant’s subjective reporting. That leaves the opinion of Dr. Hastings who actually performed the exam through palpation. Although Dr. Hastings reported signs of guarding which may have been present during his assessment, the guarding may have resolved itself since, as the treating clinical notes of Dr. Nam’s leading up to March 30, 2023, and the assessment of Dr. Sekyi-Otu in 2024 do not indicate any issues. I also place greater weight on the treatment records of Dr. Nam, as she was the applicant’s treating orthopedic surgeon. Therefore, I am not persuaded a rating should be advanced for the applicant’s cervicothoracic spine.
Thoracolumbar Spine 0%
29Based on the applicant’s subjective complaints of pain in her mid back and guarding during their assessments, Dr. Hastings and Dr. Rathbone advanced a rating of DRE II WPI rating of 5% for an impairment to her thoracolumbar spine.
30When examining the applicant, Dr. Hastings testified the applicant suffered a sprain/strain and tenderness over the right upper thoracic musculature and asymmetric guarding which is why he advanced the rating, but he did not provide a diagnosis. The respondent testified that less weight should be given to Dr. Hasting’s report because a diagnosis was not provided pursuant to the instructions in the AMA Guides.
31Dr. Rathbone assessed the applicant by way of a video examination and relied on the applicant’s subjective reporting to make his determination. The applicant reported tenderness in this area which is why he advanced the same rating.
32The respondent argues a WPI rating in this area should be 0%. It disagrees with the findings of the applicant’s assessors and submits that Ms. Freedman and Dr. Sekyi-Otu found no impairments in the area of her thoracolumbar spine. It also relies on the clinical notes and records dated June 12, 2023, of treating physician Dr. Nam who saw the applicant one month before the assessors. According to her clinical notes and records, there was no indication the applicant suffered an impairment in this area.
33During Ms. Freedman’s assessment on July 11, 2024, the applicant demonstrated full lateral flexation without any difficulty or complaints, everything was normal.
34Dr. Sekyi-Otu arrived at the same conclusion, he opined the applicant had no evidence of guarding, or radiculopathy and had an excellent range of motion upon examination and the applicant did not complain about any discomfort or pain in that region. Therefore, she was rated at a DRE Thoracolumbar Category 1, equal to 0% WPI.
35I am not persuaded a WPI rating should be advanced for an impairment to the applicant’s thoracolumbar spine. I find the absence of any reporting of complaints or findings of impairments to the applicant’s spine in treating Dr. Nam’s records of significance. I place greater weight on Dr. Nam’s treatment records than Dr. Rathbone’s findings, as Dr. Rathbone assessed the applicant by way of a short video assessment and relied on the applicant’s subjective reporting. I also place less weight to Dr. Hasting’s findings as they are not supported by a diagnosis or other objective findings. I place greater weight on the applicant’s ongoing treating orthopaedic surgeon Dr. Nam’s opinion, which is concurrent with the findings of Dr. Seki-Otu and Ms. Freeman.
Skin/Scarring 9% WPI
36As a result of the accident and the surgeries she required, the applicant has a 16 cm scar over her left elbow and multiple scars (12-14) on her lower extremities which have healed in a disfiguring manner. Dr. Hastings assigned a WPI rating of 2% for the scar on her upper extremity and Dr. Getahun assessed 7% for the scarring on her lower extremities for a total WPI of 9%. It is the applicant’s position that the scars cannot be ignored as a physical impairment and should have its own rating.
37The applicant testified that the scar on her elbow is associated with numbness and intense itching, it requires her to use topical ointment intermittently to relieve the itch. The applicant testified sometimes the itch is so intense she scratches until she bleeds.
38Dr. Sekyi-Otu opined a rating should not be advanced under skin/scarring as the applicant does not require any treatment and in his opinion the AMA Guides “emphasizes with disfigurement there is usually no loss of body function and little or no effect on the activities of daily living…” [sic].
39The respondent suggests that a rating should not be advanced under a physical impairment as she has no physical symptoms, rather it should be included in the psychological rating because it affects her psychologically. The applicant testified that she is acutely aware of the appearance of her scars and tries to hide them when she goes out which speaks to the psychological affect of scars.
40The respondent takes the position that the applicant is not receiving treatment for her scars, she has no physical symptoms, limitations or disabilities therefore Dr. Sekyi-Otu’s opinion should be preferred.
41Upon review of the evidence, I agree with the assigned 7% WPI rating for the applicant’s scars for both upper and lower extremities and rely on sections 13.3 (Pruritus) and 13.5 Table 2 of the 4th Edition of the AMA Guides. While I somewhat agree with the respondent’s position that her scars affect the applicant psychologically as she is embarrassed by them, I also find the ongoing intense itching (pruritic) and numbness are physical impairments for which she is using ointment to treat and should be assigned a WPI rating.
Headaches 8%
42The respondent did not provide a competing neurological assessment to address the applicant’s rating for headaches.
43Dr. Rathbone assigned an 8% WPI based on his assessment of the applicant and her subjective reporting of ongoing headaches. The applicant receives care from Dr. Gupta for her ongoing headaches as indicated previously.
44The respondent contests the rating on the basis that Dr. Rathbone conducted his assessment over video, he asked the applicant to administer her own tests and from there he provided a rating. It questions the validity of the testing over video and the applicant’s responses. It does acknowledge the applicant suffers headaches but points to the fact that the application intermittently takes her headache medication, and the frequency of her headaches as reported to her assessors has decreased. She now experiences headaches 1-2 times per week according to her testimony. Given those facts, it argues the rating should be lower than 8% but does not offer an expert opinion to counter the applicant’s expert opinion.
45One of the applicant’s chief complaints is ongoing headaches which she has testified can be debilitating and affects her activities of daily living. She has testified about the difficult side effects of taking her headache and pain medication and what happens when she does not take it. I find her testimony supports the WPI rating Dr. Rathbone has assigned.
46Dr. Rathbone opined that damage caused by the accident to the greater occipital nerve and the lesser occipital nerves causes neuralgia therefore a rating is appropriate. Her ongoing headaches and pain affects her ability to be in places with a bright light or look at a phone or tablet for long periods of time. The applicant also testified due to the intensity of her headaches for relief she often has to lay down in a dark room and rest until it passes.
47In the absence of a competing neurological assessment with a different finding, I accept Dr. Rathbone’s opinion and WPI rating. I find the applicant’s testimony, her ongoing treatment from Dr. Gupta for headaches and the references in her medical records to be persuasive. I also find the intensity and frequency of her headaches warrant this WPI rating.
Vertigo 0%
48Dr. Rathbone conducted a video assessment and based on the applicant’s answers while being tested and his observations, he diagnosed the applicant with nystagmus. It is his opinion that when he asked the applicant to move her head in a certain direction, her eyes shook which is how he came to the nystagmus diagnosis. He also determined the symptoms of vertigo occurred on a daily basis and affected her activities of daily living. As such he assigned a WPI rating of 7% for vertigo.
49The respondent submits this rating should not be accepted. It did not assess the applicant for vertigo/balance issues as this is not one of the applicant’s complaints.
50Dr. Rathbone is the only assessor to make a finding that the applicant suffers from vertigo/balance issues and assign her a WPI rating. The respondent strongly disagrees with this rating. It submits the applicant has not complained of issues of vertigo, she has not been treated for vertigo or balance issues, nor has she made any lifestyle changes to support a diagnosis of vertigo or nystagmus. Dr. Gupta, the applicant’s treating neurologist, makes no mention in his records of issues of balance, vertigo, or nystagmus. This is further substantiated by the fact that there are no records of complaints to her family doctor to support this finding. Further, Dr. Sekyi-Otu did not find any vestibular issues when examining the applicant.
51I disagree with Dr. Rathbone’s diagnosis of nystagmus. Nystagmus is an involuntary rapid eye movement which causes the eye to shift from side to side, up and down or in a circular motion. It is a condition which arises from the vestibular-oculocephalic pathway or a cortical control centre. It is a condition that persists at rest. I find Dr. Rathbone did not substantiate those findings when he made the diagnosis. He simply testified that during the test the applicant’s eyes shook back and forth therefore it was an appropriate diagnosis, however he did not make a finding of any vestibular damage to her eyes. I also considered the fact that Dr. Rathbone’s opinion is an outlier and is not supported by any other assessors or any objective medical records. I also find in the absence of documented complaints from the applicant about symptoms of vertigo, I am not persuaded she suffers from this impairment.
52Based on the totality of the evidence, I give little weight to Dr. Rathbone’s diagnosis, and I decline to advance a rating for Vertigo.
Right Upper Extremity 13%
53The respondent acknowledges its assessor rated the applicant with a higher WPI for the right upper extremity than the applicant’s assessors. It asks for this rating to be accepted at 13%, therefore I will accept the rating.
Left Lower Extremity 15%
54The respondent acknowledges the applicant suffered significant impairment to her left lower extremity and it asks for the 15% rating to be accepted as both assessors Dr. Getahun and Dr. Sekyi-Otu agree. As such, I will accept the rating.
Psychological 10%
55The AMA Guides provide three scales for determining a WPI rating: the Brief Psychiatric Rating Scale (“BPRS”), the Global Assessment of Functioning Scale (“GAF”), and the Psychiatric Impairment Rating Scale (“PIRS”). WPI is calculated according to all three scales, and the median WPI rating is used.
56The applicant testified she suffers from mental health sequalae which include: ongoing anxiety, moments of disassociation and a depressed mood. She also reportedly suffers from a diminished self confidence because of the appearance of her scars, although at the time of the assessment with Dr. Siegel she indicted she is now more accepting and has a tattoo which states “my scars do not define me”).
57She also testified that she has specific phobias which entail being kidnapped by a potential partner (although now that she is engaged that has subsided) and eating food that has been poisoned. To protect herself she has to purchase food from places that are familiar to her.
58The applicant also testified that due to her anxiety, she prefers having someone accompany her when going places, and she tends to cancel social activities with her friends which has caused them to distance themselves. She now has one friend that is understanding of her circumstances.
59Dr. Giselle Braganza, Neuropsychologist assessed the applicant and submitted a report dated July 24, 2020. She diagnosed the applicant with unspecified anxiety disorder, adjustment disorder with depressed mood and somatic symptom disorder with predominant pain. She also provided the following ratings: BPRS 15%, GAF (41-50 range) or 15% and PIRS 15% for a total WPI of 15%.
60Dr. Siegel performed a psychological assessment on June 19, 2024, and authored a report on behalf of the respondent. He rated the applicant’s impairment scores as follows: BPRS 15%, GAF 10%, PIRS 10% WPI. In sum the total WPI rating advanced by Dr. Siegel is 10%.
61Both Dr. Braganza and Dr. Siegel agree on the BPRS scores, where they differ in opinion is on the PIRS and the GAF scores.
62The respondent argues that Dr. Braganza assigned a GAF score of between 38-50 equalling a 15% WPI rating which means the applicant suffers a serious impairment, one which rises to the level of behaviour such as compulsive shoplifting, obsessive rituals and suicidal ideation. The respondent argues the applicant has not shown any indication of any of these behaviours and as such, Dr. Braganza overinflated her rating. It submits when looking at the applicant’s pre and post accident behavior there are many examples where the applicant ‘s function is the same. For example, the applicant testified that she has moved out of her parent’s house, got engaged, obtained her drivers licence, is preparing to become a mom again, all which speak to her psychological well being.
63Dr. Siegel diagnosed the applicant with an adjustment disorder with mixed symptoms of anxiety and depression and a somatic symptom disorder with predominant pain and PTSD as set out in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-V”). He also indicated the applicant suffered residual posttraumatic stress symptomology by experiencing disturbing dreams and a reduced self esteem which he associates with the scars on her body.
64The applicant also referenced her fear of food with Dr. Siegel however, she followed up her statement with her fear associated with food did not start until a year and a half before Dr. Siegel’s assessment which occurred on June 19, 2024. I estimate this condition started approximately in January of 2023, nearly three years post accident. The applicant also discussed the issue of disassociation with Dr. Siegel but notes these symptoms started after a breakup with her ex-partner.
65Dr. Siegel rated the applicant as moderate on the GAF (50-51) which equals a WPI of 10% for the following reasons. He observed a flat affect, and the applicant reported occasional panic attacks, and difficulty with school, socialization and occupational abilities.
66The assessors disagreed on the applicant’s ability to function. Dr. Siegel testified that the applicant has demonstrated she has a strong ability to rise above her impairments and has found the confidence to function at a fairly high level. Further, since the accident, by the applicant’s own account she has entered into a new relationship, moved away from her parent’s home, got her driver’s licence, became engaged and is currently expecting her next child. Dr. Siegel opined that the fact that the applicant is able to drive with her children in the car after the type of accident she has gone through, shows a strong level of resilience.
67Dr. Siegel opined that although the applicant prefers to have a support person with her when she goes out, she is able to go out alone and although she has a reduced number of friends in her circle, she still is able to maintain a friendship and has strong relationships with her family members, which supports a moderate impairment PIRS score.
68The applicant also testified that slowly there has been improvement in her activities of daily living, which in my view, can explain the difference in opinion between Dr. Siegel and Dr. Braganza as Dr. Siegel assessed her one year after Dr. Braganza.
69I prefer the 10% WPI rating of Dr. Siegel over that of Dr. Braganza. I find Dr. Braganza assessed the applicant and opined she is mildly to moderately impaired in the spheres of ADL, social, and concentration, persistence, pace and markedly impaired class 4 (marked) in the sphere of adaption. I find her opinion conflicting. She assigned a WPI rating of 15% which is severe but found the applicant is mild or moderately impaired in 3 of the 4 spheres. I am not persuaded Dr. Braganza took into consideration the level of functioning the applicant does have post accident and compared to her pre-accident functioning.
70Based on the applicant’s testimony, and subjective reporting to her assessors, she is able to take care of her own hygiene, she still takes care of her children, with assistance from the family which has not changed, she was unemployed pre-accident and continues to be unemployed, she had a G1 licence pre-accident, and she has progressed to a G2 post accident. Pre-accident she was in a relationship, she is now engaged expecting her next child, she was a homemaker pre-accident, she remains the same post accident. Although she has less friends and socializes less, she is able to maintain a friendship and keep close ties with her family.
71I acknowledge the applicant has psychological impairments for which both assessors have made a diagnosis and assigned a WPI rating. Both parties acknowledge the severity of the accident, and the applicant’s injuries however, because of the applicant’s high level of functioning, I am not persuaded the applicant’s psychological behaviour or level of function rises to Dr. Braganza’s WPI rating of 15%. Therefore, I prefer the WPI rating of Dr. Siegel at 10%.
72In conclusion, I find that the applicant’s WPI ratings are 47% rounded up to 50% pursuant to the AMA Guides. As a result, I find the applicant has not met her onus in proving on a balance of probabilities she meets the 55% threshold that she is catastrophically impaired under criterion 7.
ORDER
73For the reasons above, I find the following:
i. The applicant has not established on a balance of probabilities that she sustained a catastrophic impairment as defined by the Schedule under criterion 7.
Released: March 9, 2026
Mary Henein Thorn
Adjudicator