Licence Appeal Tribunal File Number: 24-015120/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:
Jessica Genereaux
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Melissa Sidhu, Counsel
Savannah Chorney, Counsel
For the Respondent:
Peter Pietraszek, Counsel
HEARD: by Videoconference:
October 14-21, 2025
OVERVIEW
1Jessica Genereaux, the applicant, was involved in an automobile accident on August 31, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Belair Insurance Company Inc., Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent served and filed surveillance video on September 23, 2025. The applicant submits that this does not comply with the Tribunal’s Case Conference Report and Order (CCRO), dated April 14, 2025, which required the respondent to provide this disclosure to the applicant within 45 days after the April 11, 2025 case conference. She further noted that the CCRO requires the disclosure of “complete surveillance.” The respondent did not meet this requirement when it disclosed an edited video. In her view, the surveillance should be excluded because it fails to comply with two requirements of the CCRO, and also because the late disclosure prejudices her as this does not allow her to review the evidence with her experts to formulate a response.
3The respondent argued that the applicant cannot be surprised this evidence because she already knows what she is doing in the video. It further argued that the applicant had 21 days to review the surveillance and that this is a reasonable opportunity to respond. Lastly, the respondent argued that it is up to the applicant to bring forward a motion for the full, unedited video but she has not done so.
4I asked the respondent to explain why the surveillance was not served by the deadline in the CCRO. The respondent made no submissions on this point.
5I granted the applicant’s request to exclude surveillance. This evidence is relevant, but it is also late. I agree that this prejudices the applicant’s case by not giving her a reasonable opportunity to respond. I also find that the edited video limits her ability to understand this evidence which is also unfair. Both factors, lateness and the editing of the video, contravene the CCRO and the respondent has provided no explanation for this the lack of compliance. For these reasons, I excluded the surveillance from this proceeding.
ISSUES
6The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule? (Based on criterion 7 and 8).
ii. Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from August 31, 2021 to date and on-going?
iii. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from August 31, 2021 to date and on-going?
iv. Is the applicant entitled to $100.25 ($2,200.00 less $2,099.75 approved) for Assistive Devices, proposed by Okell Rehabilitation Services Inc. in a treatment plan/OCF-18 (“plan”) dated August 18, 2021?
v. Is the applicant entitled to $1,097.75 ($3,791.00 less $2,693.25 approved) for Physiotherapy Services, proposed by Okell Rehabilitation Services Inc. in a plan dated October 18, 2021?
vi. Is the applicant entitled to $7,103.99 ($9,077.28 less $1,973.29 approved) for Assistive Devices, proposed by Okell Rehabilitation Services Inc. in a plan dated December 2, 2021?
vii. Is the applicant entitled to $1,097.75 ($2,793.50 less $1,695.75 approved) for Occupational Therapy Services, proposed by Okell Rehabilitation Services Inc. in a plan dated January 24, 2022?
viii. Is the applicant entitled to $1,782.00 for Other Goods and Services, proposed by Okell Rehabilitation Services Inc. in a plan dated February 17, 2022?
ix. Is the applicant entitled to $3,696.30 ($5,591.50 less $1,895.20 approved) for Occupational Therapy Services, proposed by Okell Rehabilitation Services Inc. in a plan dated July 4, 2022?
x. Is the applicant entitled to $802.00 ($6,289.80 less $5,486.80 approved) for Occupational Therapy Services, proposed by Okell Rehabilitation Services Inc. in a plan dated April 12, 2023?
xi. Is the applicant entitled to $3,950.00 for Other Goods and Services, proposed by Okell Rehabilitation Services Inc. in a plan dated May 15, 2023?
xii. Is the applicant entitled to $817.60 ($6,373.52 less $5,555.92 approved) for Occupational Therapy Services, proposed by Anchor Rehabilitation Support Services Inc. in a plan dated January 25, 2022?
xiii. Is the applicant entitled to $15,791.28 for Occupational Therapy Services, proposed by Anchor Rehabilitation Support Services Inc. in a plan dated June 6, 2022?
xiv. Is the applicant entitled to $1,058.98 ($2,175.74 less $1,116.76 approved) for Other Goods and Services, proposed by Anchor Rehabilitation Support Services Inc. in a plan dated January 3, 2023?
xv. Is the applicant entitled to $1,013.56 for Other Goods and Services, proposed by Anchor Rehabilitation Support Services Inc. in a plan dated January 18, 2023?
xvi. Is the applicant entitled to $359.45 ($3,352.30 less $2,992.85 approved) for Physiotherapy Services, proposed by Physiomax Wellness in a plan dated January 26, 2022?
xvii. Is the applicant entitled to $4,523.04 for Physiotherapy Services, proposed by Physiomax Wellness in a plan dated October 24, 2022?
xviii. Is the applicant entitled to $4,903.10 for Physiotherapy Services, proposed by Physiomax Wellness in a plan dated June 14, 2023?
xix. Is the applicant entitled to $399.50 ($3,192.53 less $2,793.03 approved) for Physiotherapy Services, proposed by Kinetic Rehabilitation and Consulting Inc. in a plan dated January 7, 2022?
xx. Is the applicant entitled to $50.39 ($4,200.00 less $4,149.61 approved) for Psychological Services, proposed by Dr. Giselle Braganza and Associates in a plan dated May 22, 2023?
xxi. Is the applicant entitled to $4,444.16 ($8,359.30 less $3,895.14 approved) for Psychological Services, proposed by Sarvin Sabet Ghadam in a plan dated November 3, 2023?
xxii. Is the applicant entitled to $100.25 ($850.20 less $749.95 approved) for Other Assistive Devices, proposed by Okell Rehabilitation Services Inc. in a plan dated January 31, 2022?
xxiii. Is the applicant entitled to $624.95 ($5,262.86 less $4,637.91 approved) for Psychological Services, proposed by Psychological Recovery Clinic in a plan dated February 18, 2022?
xxiv. Is the applicant entitled to $7,893.00 for Other Assistive Devices, proposed by Okell Rehabilitation Services Inc. in a plan dated July 12, 2024?
xxv. Is the applicant entitled to $4,972.52 for Other Assistive Devices, proposed by We Care Rehab Clinic in a plan dated August 28, 2024?
xxvi. Is the applicant entitled to $2,137.27 for Other Assistive Devices, proposed by Anchor Rehabilitation Support Services Inc. in a plan dated October 19, 2023?
xxvii. Is the applicant entitled to $135.85 ($1,930.69 less $1,794.84 approved) for Other Goods and Services, proposed by Okell Rehabilitation Services Inc. in a plan dated January 4, 2023?
xxviii. Is the applicant entitled to $5,019.84 for Physical Rehab, proposed by Physiomax Wellness in a plan dated December 20, 2023?
xxix. Is the applicant entitled to $1,546.15 for Other Goods and Services, proposed by Okell Rehabilitation Services Inc. in a plan dated May 7, 2024?
xxx. Is the applicant entitled to $781.11 for Other Goods and Services, proposed by Okell Rehabilitation Inc. in a plan dated June 20, 2024?
xxxi. Is the applicant entitled to $1,995.50 for Physical Rehab, proposed by OMNI Health Care Solutions in a plan dated December 31, 2024?
xxxii. Is the applicant entitled to $100.25 ($1,446.62 less $1,346.37 approved) for an Attendant Care Assessment, proposed by Okell Rehabilitation Services Inc. in a plan dated September 13, 2021?
xxxiii. Is the applicant entitled to $100.25 ($2,000.00 less $1,899.75 approved) for an Attendant Care Assessment, proposed by Okell Rehabilitation Services Inc. in a plan dated November 29, 2022?
xxxiv. Is the applicant entitled to $50.39 ($2,200.00 less $2,149.61 approved) for a Psychological Assessment, proposed by Psychological Recovery Clinic in a treatment plan dated October 18, 2021?
xxxv. Is the applicant entitled to $2,200.00 for a Brain Speck Imaging, proposed by DRT in a plan dated December 2, 2021?
xxxvi. Is the applicant entitled to $2,200.00 for a Nutrition Assessment, proposed by Okell Rehabilitation Services Inc. in a plan dated May 11, 2023?
xxxvii. Is the applicant entitled to $18,900.25 ($29,000.00 less $10,099.75 approved) for CAT Assessments, proposed by Verity Medical Assessments Inc. in a plan dated October 30, 2024?
xxxviii. Is the applicant entitled to $90.97 for Medical Devices, submitted on a claim form (OCF-6) dated May 8, 2024?
xxxix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xl. Is the applicant entitled to interest on any overdue payment of benefits?
7Issue 36 from the CCRO was withdrawn by the applicant.
RESULTS
8The applicant is not catastrophically impaired.
9No funds are available for attendant care or the treatment plans.
10The applicant is not entitled to interest.
11The respondent is not liable to pay an award.
PROCEDURAL ISSUES
12During the hearing, police were called to the applicant’s counsel’s office as the applicant was refusing to leave the office. The applicant was connected to the hearing with her smart phone, which she held up and turned around to show the police officers who were with her in what appeared to be the foyer of her counsel’s office.
13The applicant asked to withdraw her case. She explained that she did not want a hearing and preferred to resolve her case outside the hearing room. I asked her to depart from counsel’s office, and to then take some time to consider this request and have further discussions with her counsel. If she still wanted to withdraw her case, then she could do so on the following day of the hearing. She then left counsel’s office without incident.
14The applicant appeared the next day and confirmed that she was not withdrawing her case.
15The applicant then instructed her counsel to request an adjournment. Counsel submits that the applicant believes that her own counsel is working against her and has surveillance videos that will be used to damage her case. Counsel expressed concerns that the applicant may be experiencing paranoid delusions, which could not have been foreseen, and argued that procedural fairness required an adjournment for a capacity assessment to ensure that she is able to understand the nature of the proceeding and instruct counsel.
16The respondent submits that there is no evidence showing, on a balance of probabilities, that the applicant requires a capacity assessment.
17Under 16.2 of the Rules, oral requests for adjournments can be made at an adjudicative event in compelling circumstances where a party could not have known of the circumstances giving rise to the adjournment request. Both applicant’s counsel and the applicant herself agreed that they had no issue working together prior to the hearing. The applicant explained that she began to have concerns when she heard the questions she was asked by her counsel during her testimony. Hearing these questions gave her a “gut feeling” that there may be videos in existence that her counsel could use to undermine her case.
18I agree that this circumstance could not have been predicted, and as such, I allowed this adjournment request to be made.
19The factors to consider for an adjournment are in 16.3 of the Rules. In my view, the main factor that applies here is procedural fairness.
20I agree with the applicant that the Tribunal can exercise discretion and grant an adjournment if there a basis for doing so. However, a person is presumed to be capable unless there is evidence, such as expert testimony or medical reports, that shows she lacks capacity. No such evidence is before me, and therefore, she is presumed capable. As such, I did not grant an adjournment request as there was no evidence showing that the applicant does not understand the nature of the proceeding or cannot instruct counsel.
21The applicant expressed trust issues with her counsel during the hearing. I asked her, more than once, if she continues to be represented by her counsel.
22She confirmed that her counsel continues to represent her and explained that she still wanted to give her counsel “a chance.” Consequently, I provided accommodations, such as allowing breaks during the hearing, so the applicant could consult with her counsel, to ensure her meaningful participation at the hearing.
23The applicant made her own spontaneous adjournment request, without the assistance of counsel, after hearing the testimony of Dr. Dessouki. The reason given for the adjournment request was to have some time to think about whether she should continue with the hearing.
24Needing time to consider whether to proceed with a hearing is not an unforeseeable circumstance, as required by Rule 16.2. Therefore, I did not allow this adjournment request to proceed.
ANALYSIS
Catastrophic Impairment (CAT)
Criterion 7
25I find that the applicant is not catastrophically impaired under Criterion 7.
26A catastrophic impairment under Criterion 7 results when, as a result of an accident, an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating scheme in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“Guides 6th edition”), where the impairment score is combined with a physical impairment rating from Criterion 6, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), and results in a 55% or more Whole Person Impairment (WPI) rating.
27There are numerous reports and ratings in evidence. The parties submits that they rely on the following WPI ratings:
| Impairment and Guides reference | The ratings relied upon by the applicant in her submissions | Respondent’s ratings |
|---|---|---|
| Cervical Spine Ch.3, Table 73 |
15% | 0% |
| Thoracic Spine Ch.3, Table 74 |
5% | 0% |
| Lumbar Spine Ch. 3, Table 72 |
10% | 5% |
| Upper Extremity Ch. 3, Figure 38 and Figure 41 |
2% | 0% |
| Lower Extremity Ch. 3, Table 36 |
22% | 0% |
| Headaches Ch. 4, Table 9 |
19% | 0% |
| Mental Status Ch. 4, Table 2 |
10% | |
| Sleep Ch. 4, Table 6 |
6% | 0% |
| Hearing No Guides reference point provided |
3% | |
| Vertigo Ch. 4, page 146, no Table reference provided |
4% | |
| Scaring Ch. 13, Table 2 |
2% | |
| Medications Ch. 2, section 2.2 |
2% | |
| Mental and Behavioural Guides 6th edition, Ch. 14 |
30% | 20% |
| Total: (Using the combined values chart in the Guides) |
76% | 26% |
Lower Extremity
28I find that the applicant does not have a ratable lower extremity impairment.
29Chapter 3, Table 36 of the Guides rates lower limb impairment from gait derangement. The s. 25 Executive Summary of Dr. Blitzer, physician, makes a 50% WPI rating. This is a severe rating under category “h.” The impairment description reads, “Requires routine use of two canes or two crutches and a short leg brace.” He views the gait derangement as being caused by the applicant’s lower back and lower extremity impairments. For this reason, he apportions about half of this rating to the lower extremity which results in a 22% WPI rating.
30The applicant submits that the accident caused Complex Regional Pain Syndrome (CRPS) to develop in her right leg. She argues that Dr. Blitzer’s 22% WPI rating is reasonable.
31The respondent argues that the medical evidence does not support a finding that applicant has CRPS and that she has no ratable lower extremity impairment.
32There is no dispute among the parties that the applicant requires a walking aid to ambulate because of impairments to her right leg. However, there is a dispute on whether the applicant has CRPS.
33Dr. Dessouki, physiatrist, is a s. 44 insurer examination assessor. In testimony, he described the four steps of the Budapest Criteria used to diagnose CRPS:
i. Confirm that pain is out of proportion to an initial inciting event such as trauma or surgery;
ii. Identify at least three out of the following four symptom categories:
a. Sensory category
b. Vasomotor category, such as changes to skin colouration, skin discolouration, or changes to skin temperature
c. Sudomotor category, such as excessive sweating of the limb or edema
d. Motor category, which includes weakness, difficulty moving, or spasticity;
iii. Objectively confirm two of the four symptom categories;
iv. Determine that there is no other explanation that adequately accounts for these symptoms.
34The applicant relies on the CRPS diagnosis made by Dr. Berardocco, physiatrist. There are no original documents by Dr. Berardocco in evidence. Instead, an extract of Dr. Berardocco’s diagnosis is found in the s.25 Neurological Evaluation of Dr. Basile, neurologist, dated May 28, 2025.
35Dr. Dessouki opined that Dr. Berardocco applies the Budapest Criteria, but in an incorrect manner. He notes the following errors in Dr. Berardocco’s findings:
Sensory category: Dr. Berardocco found that the applicant has hypoesthesia, but he does not identify the hyperesthesia or allodynia which is needed to meet the sensory category.
Vasomotor category: Dr. Berardocco found that the right foot was cool to the touch but did not apply thermography. Dr. Dessouki views this as being a subjective and improper application of the criteria.
Sudomotor category: the applicant self-reports excessive sweating which was not objectively verified by Dr. Berardocco.
36Dr. Berardocco also found that the applicant’s CRPS was in the dystrophic/atrophic phase. Dr. Dessouki explained that in this phase the applicant’s foot would appear “mummified.” The skin would be shiny and brittle. There would be gross asymmetry and swelling in her foot. He testified that the diagnosis dystrophic/atrophic phase CRPS cannot be correct because Dr. Berardocco does not document any of these symptoms.
37I give more weight to the opinion of Dr. Dessouki because he provided clear and detailed reasons for why Dr. Berardocco’s findings are not correct. In light of this, I find Dr. Berardocco’s opinion to be less persuasive. I note that Dr. Berardocco did not testify at the hearing. His report is not in evidence. Instead, his diagnosis can only be viewed as an excerpt in someone else’s report. The concerns raised by Dr. Dessouki are not addressed by the limited evidence from Dr. Berardocco. For these reasons, I do not accept Dr. Berardocco’s CRPS diagnosis.
38Dr. Basile agrees with the Dr. Berardocco’s CRPS diagnosis in his report. He notes there is pain related weakness in the lower extremity and nail bed changes, and that these symptoms may be related to CRPS.
39Dr. Basile mentions some CRPS symptoms, but does not identify the other symptoms needed for a CRPS diagnosis. He also does not follow the four steps of the Budapest Criteria. As such, I give little weight to his confirmation of Dr. Berardocco’s CRPS diagnosis as he did not follow the methods needed to confirm such a diagnosis.
40For clarity, Dr. Getahun, orthopaedic surgeon, did not make a CRPS diagnosis in his report dated December 10, 2024. His report states that the applicant mentioned her CRPS diagnosis and he recommends a neurological examination.
41In any event, for all these reasons I give weight to the opinion of Dr. Dessouki and find that the applicant has not established, on a balance of probabilities, that she has CRPS.
42In the alternative, if I am wrong and the applicant does have CRPS, then I would still find that this is not a ratable impairment caused by the accident.
43The applicant submits that various medical reports confirm she had pain in her right leg that evolved into CRPS. She relies on Dr. Dessouki’s testimony that symptoms can change and become worse over time. However, in regard to CRPS, he also testified that too much time had passed between the accident and the development of her gait derangement for these impairments to have a temporal relation to the accident.
44The accident was on August 31, 2021. The Consultation Report of Dr. Juma, physician, shows that on October 28, 2021 the applicant had numbness and tingling down her left leg. There are no pain complaints to her right leg.
45Dr. Juma’s Consultation Report of January 13, 2022 states that the applicant’s tingling nerve pain has been improving and that she is not having significant issues with this in her legs. This shows that her leg pain was improving after the accident. It was not getting progressively worse as suggested by the applicant.
46Health Status Reports were completed by Dr. Pillai, psychiatrist, on February 28, 2022 and by Dr. Faaeza, physician, on August 23, 2022. These reports ask if the applicant requires assistive devices such as a cane. In both instances, no cane is requested. This is an indication that she did not require a walking aid in the year following the accident.
47The August 23, 2022 Health Status Report mentions arm and back pain, but there are no leg pain complaints. This does not support the applicant’s position that she continuously had pain complaints in her right leg since the accident.
48The earliest mention of CRPS type symptoms in the right leg, appear in the Joseph Brant Hospital Report dated April 22, 2024 by Dr. Blonde, physician. The report states:
Jessica comes to hospital having had several days of progressive numbness and then weakness in her right lower extremity. She thinks the symptoms began on Friday.
49It appears that the applicant’s right leg lower extremity impairment began in April, 2024. This is two and a half years after the accident. This is a significant period of time after the accident, and also the reason Dr. Dessouki opined that it is implausible for the accident to have caused the lower extremity impairment. As such, if the applicant has CRPS, then it is still not ratable as there is no link between this impairment and the accident.
50Dr. Blitzer also makes lower extremity ratings under Chapter 3, Tables 42 and 64. These ratings are for a hip impairment that impacts gait, and a range of motion impairment of the ankle. I do not accept these ratings because, as noted above, as the medical evidence does not establish a temporal link between lower extremity symptoms and the accident.
Headaches and occipital neuralgia
51I find that there is an insufficient basis to rate applicant’s headaches.
52The method for rating headache impairments is in 15.9 of the Guides. This section begins with a lengthy discourse on types of headaches and their various characteristics. It then directs raters to the procedures in 15.8.
53Section 15.8 of the Guides sets out the means of estimating impairment caused by pain. This requires the use of the Pain Intensity-frequency Grid in Figure 2 of Chapter 15. The grid has four levels of pain intensity, and descriptions of how pain is managed with medication and the impairment caused by pain for each level. The grid also has four columns for frequency, each with its own description of how often pain is experienced. The Guides make clear that the frequency and intensity of the pain must be medically documented.
54Chapter 15 describes the method for evaluating pain, but does not provide WPI ratings. Impairment ratings are found in the tables and figures of the Guides. Raters must pick the applicable organ system and apply the findings from Chapter 15 to make the WPI rating. This method of formulating WPI ratings is seen in the three examples of pain impairment ratings at the end of the chapter.
55Section 15.1 cautions that the WPI ratings of various organ systems already include allowances for pain that may occur with impairments. This is one of the factors that makes rating for pain, including headache pain, rather complex. The Guides recognise the very challenging nature of evaluating a pain impairment by describing it as being “difficult but not impossible.”
56The applicant relies on the 19% WPI rating for headaches by Dr. Blitzer.
57The respondent relies on the opinion of s. 44 assessor Dr. Talik Mendis, neurologist. His report, dated October 4, 2024, is consistent with his testimony in regard to opining that the Guides have no means of rating headaches. I disagree with this position because, as noted above, the Guides do provide a method for rating headaches.
58I agree that there are numerous references in the medical documentation that confirm the applicant has experienced headaches since the accident.
59Dr. Blitzer’s report, dated April 4, 2025, states that he interviewed and examined the applicant on January 8, 2025. She described a history of good physical health prior to the accident and having headaches twice per year. She advised that since the accident she has experienced headaches of bad intensity, between one and five times per week. She also told Dr. Blitzer that the headaches are associated with intolerance to light and sound, and can last up to two days. She further told him that she often withdraws at the onset of a headache to lessen the intensity and duration.
60Dr. Blitzer uses Table 9 in Chapter 3 of the Guides to rate this impairment at 19% WPI. However, this table rates facial pain caused by the Trigeminal or fifth cranial nerve. The impairment description reads “Moderately severe, uncontrolled, facial neuralgic pain.” The Guides also state that this impairment may affect things like chewing, swallowing, and speech articulation, but does not mention headaches. Additionally, there is no medical evidence showing an injury to the applicant’s Trigeminal nerve. Consequently, I do not accept this rating because there is no demonstrable connection between the applicant’s headaches and Table 9.
61The report of Dr. Basile gives the applicant a 10% WPI rating for occipital neuralgia, 1% WPI for tension headaches, and 2% for migraine headaches.
62I do not accept the rating for occipital neuralgia because it is not possible to understand how this rating was formulated and also because causation is not established.
63Table 23, Chapter 4 of the Guides provides impairment ratings for occipital neuralgia due to sensory abnormalities or loss of strength. The applicable WPI rating is chosen from Table 23 and then applied to the procedures in Table 20 and 21.
64The severity of sensory impairment is assessed in Table 20. The severity of muscle function impairments are set out in Table 21. The rater decides on the percentage of sensory or muscular impairment and then multiplies the percentage from Table 23. If both sensory and motor abnormalities exist, then WPI estimates for both types of impairments are combined.
65Dr. Basile’s report provides a 10% WPI rating, but he does not show any of the above noted steps that are used to make this rating. In particular, there is no indication on record that he followed the procedures in Table 20 and 21. Consequently, I do not accept this rating because it is not possible to understand how he arrived at a 10% WPI rating.
66Even if the formulation of the rating could be understood, I would still not accept his rating as causation has not been established. There are no post-accident medical records confirming occipital neuralgia other than Dr. Basile’s diagnosis in 2025, which is more than three years after the accident. The passage of time undermines the nexus between the accident and the impairment. As such, I am not persuaded that the diagnosis of occipital neuralgia is related to the accident.
67Further still, the diagnosis of occipital neuralgia itself is in doubt. The s. 44 assessors Dr. Mendis and Dr. Dessouki checked for occipital neuralgia and did not diagnose this condition. There is no medical documentation confirming occipital neuralgia symptoms except from Dr. Basil’s examination on May 28, 2025. As such, I find, on a balance of probabilities, that the applicant does not have occipital neuralgia because the majority of the medical evidence does not support this diagnosis.
68Dr. Basile gave a 1% and 2% for headaches, but there is nothing in his report or testimony to explain how he followed the instructions in Chapter 15 to arrive at these numbers. There is no mention on record of the table or figure that he used to make headache ratings. Again, the formulation of these WPI rating cannot be understood, and therefore, I do not give them any weight.
69Dr. Basile and Dr. Blitzer have not followed the prescribed method of rating headaches in Chapter 15. They describe the characteristics of the headaches, but did not explicitly reference the Pain Intensity-frequency Grid. Of greater significance, neither have identified the nerve or other organ system causing the headaches to use the applicable table or figure to make a WPI rating. Without this final step, a headache rating cannot be made.
70Dr. Basile testified that he rated the headaches by analogy. The applicant argues that rating by analogy for headaches has been accepted by the Tribunal and that this validates Dr. Basile’s rating.
71I do not agree. I am not bound by other Tribunal decisions. More importantly, the method of rating headaches in Chapter 15 does not contemplate the use analogous ratings. Doing so is inconsistent with the Guides which require the organ system, and the requisite table or figure, that causes the headache to be referenced in order to make an impairment rating for headache pain.
Cervical Spine
72I find that the applicant has a DRE I, 0% WPI rating for her cervical spine.
73Table 73, Chapter 3 uses the Diagnosis Related Estimates (DRE) model which considers objective clinical findings to rate an impairment of the spine.
74The applicant submits that a DRE III, 15% WPI rating is appropriate because she has medically documented radiculopathy in her neck.
75The respondent submits that a DRE I, 0% WPI rating is merited because the applicant has no medically documented impairments other than pain.
76In his report, Dr. Blitzer opines that the applicant’s cervical spine, at the very least, should be rated at a DRE II, 5% WPI rating based on the findings in Dr. Getahun’s report which notes muscle guarding and range of motion restrictions. Dr. Blitzer goes on to reference other medical evidence and states that a DRE III, 15% WPI rating is possible “if there was” radicular pain. In my view, this is theorizing on possibility of a higher rating. There is no evidence that verifies radicular pain such as loss of relevant reflexes, unilateral atrophy with greater than 2-cm decrease in circumference compared with the unaffected side, or electrodiagnostic testing. Consequently, I find there is insufficient evidence to justify a DRE III rating.
77Dr. Basile seems to agree that the applicant has non-verifiable radicular symptoms and gives a 5% WPI rating. He physically examined the applicant and noted that she has right hand numbness could relate to a C8 nerve root. However, he does not identify any radicular symptoms in her neck. This is consistent with the findings of Dr. Dessouki, who examined the applicant on May 14, 2024. He found that the applicant continues to experience pain with neck flexion, but no signs of radiculopathy were detected.
78Dr. Getahun detected muscle guarding in the applicant’s neck. However, the same condition was not detected in the two other examinations by Dr. Basile and Dr. Dessouki. This inconsistency leads me to conclude that there is an insufficient basis to find, on a balance of probabilities, that the applicant has signs of non-verifiable radiculopathy. All three assessors do agree that the applicant has ongoing neck pain. This results in a DRE I, 0% WPI rating for the cervical spine.
Hearing
79I find that the applicant does not have a rateable impairment for hearing.
80Various hearing impairments are rated according to the tables in Chapter 9.
81The applicant relies on Dr. Blitzer’s rating of 3% WPI for hearing impairment. He does not reference the table he used to formulate this rating. Given the various tables in Chapter 9 it is not possible to understand how this rating was formulated.
82Dr. Blitzer is aware of the applicant self reporting hearing loss after the accident. However, he did not have the results of her hearing test. The applicant has also not directed me to any hearing test results in evidence. As such, there is no medical testing confirming hearing loss.
83The testing of the applicant’s hearing loss would also be important because it would describe and quantify the hearing loss. A rating under Chapter 9 cannot be made without this critical information.
84I do not accept Dr. Blitzer’s 3% WPI rating for hearing loss because I do not know how he formulated the rating, and also because there is no medical documentation confirming or quantifying the applicant’s hearing loss.
Mental and behavioural disorders
85I find that the applicant has a 20% WPI rating for the Psychiatric Impairment Rating Scale (PIRS) the under the Guides 6th edition, Chapter 14.
86The method of rating impairment under Chapter 14 is complex. Impairment ratings for three assessment scales are determined by raters. These are the Brief Psychiatric Rating Scale (BPRS), the Global Assessment of Functioning Scale (GAF), and the Psychiatric Impairment Rating Scale (PIRS). As per 14.6d of Chapter 14, the final rating is median or middle value of the BPRS, GAF, and PIRS scores.
87The applicant relies on the 30% WPI by Dr. Milenkovic, psychiatrist, from her report dated January 22, 2025. She determined that the applicant had a 30% WPI rating for the BPRS, a 30% WPI rating for the PIRS, and a 20% WPI rating for the GAF. Thus, her median score for mental and behavioural disorders is a 30% WPI rating.
88The respondent relies on the ratings of Dr. Sharma, psychiatrist, from his report dated October 4, 2024. He rated the applicant as having a BPRS score of 20% WPI, a GAF score of 15% WPI, and a PIRS score of 20% WPI. This results in a 20% WPI rating for mental and behavioural disorders.
89The PIRS score is determined by rating 6 areas of function. These are Self care, personal hygiene, and activities of daily living; Role functioning, social and recreational activities; Interpersonal relationships; Travel; Concentration, persistence, and pace; and Resilience and employability. A rating is made from 1, the lowest in severity, to 5, the most severe, for each area of function. The ratings are then arranged from highest to lowest and the middle two numbers are added together. The sum of the two middle ratings are then referenced to Table 14-17 to determine the WPI rating. A score of 6 results in a 20% WPI rating. A score of 7 results in a 30% WPI rating.
90For the sake of clarity, I note that the PIRS rating system uses terms that are also found in the Criterion 8 rating system. For example, terms like Activities of daily living, or Concentration, persistence, and pace. However, these are two distinct rating systems. The meanings and usage of these common terms are different in each rating system and the terms are not interchangeable.
91Dr. Milenkovic testified that the two middle scores in her PIRS analysis was 3 for Travel and 4 for Interpersonal relationships. When added together the sum of these scores is 7 which results in a 30% WPI rating under Table 14-17.
92Dr. Sharma had 4 areas with a score of 3, including Travel and Interpersonal relationships. The sum of the two middle scores is 6, resulting in a 20% WPI rating.
93Under Table 14-14, the impairment description for an Interpersonal relationships 4 rating states:
Severe impairment. Unable to form or sustain long term relationships. Preexisting relationships ended (eg, lost partner, close friends). Unable to care for dependents (eg, own children, elderly parent).
94This impairment description does not fit the applicant. She is able to care for her dependent son. She regained sole custody of him about a year after the accident when he was 7 years old. He is currently 10 years old. She testified on the efforts she makes to provide a good home and how she advocates for him at school. The applicant also testified on her complicated relationship with her mother and brother. Despite various challenges, she has sustained those long term relationships.
95The impairment description for an Interpersonal relationships 3 rating states:
Moderate impairment. Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives, or community services looking after children
96The reference to community services looking after children does not apply. The applicant lost custody of her son before the accident. She regained sole custody after the accident which indicates she is able to look after her child. Even so, other elements of this description are applicable. The applicant is more isolated after the accident and has had difficulty forming new friendships. It is also fair to say that there have been periods of time where she had strained relationships with family members, but again, these circumstances are complicated.
97In any event, I find there is enough evidence to make a 3 rating. This would result in a sum of 6 for the middle two ratings from Dr. Milenkovic’s PIRS analysis. This would also result in a 20% WPI rating for Mental and behavioural disorders under Criterion 7.
98The remaining WPI ratings for physical impairments that the applicant relies on add up to a 34% WPI using the combined values chart page 322 of the Guides. The additional 20% WPI rating for Mental and behavioural disorders results in a 47% WPI rating. It is not possible to reach the 55% threshold. Consequently, I find that the applicant is not catastrophically impaired under Criterion 7.
Criterion 8
99I find that the applicant is not catastrophically impaired under Criterion 8.
100A catastrophic impairment under Criterion 8 results when an insured person sustains three or more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) from an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder. The four areas of function in Criterion 8 are the activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.
101The Guides set out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:
| Area or Aspect of Functioning | Class 1: NO Impairment | Class 2: MILD Impairment | Class 3: MODERATE Impairment | Class 4: MARKED Impairment | Class 5: EXTREME Impairment |
|---|---|---|---|---|---|
| Activities of Daily Living | No impairment is noted | Impairment levels are compatible with most useful functioning | Impairment levels are compatible with some, but not all useful functioning | Impairment levels significantly impede useful functioning | Impairment levels preclude useful functioning |
| Social Functioning | |||||
| Concentration, Persistence and Pace | |||||
| Adaption |
102The applicant submits that she is catastrophically impaired under Criterion 8 because she has a Class 4, Marked impairment in all four areas of function.
103The respondent submits that the applicant has Class 3 Moderate impairments in activities of daily living, social functioning, and concentration, persistence and pace (CPP) and a Class 4, Marked impairment in adaptation. It argues that the applicant is not catastrophically impaired.
104The parties agree that the applicant sustained psychological injuries in the accident. Section 25 assessor Dr. Melinkovic, psychiatrist, diagnoses the applicant with Generalized Anxiety Disorder, Major Depressive Disorder with anxious distress – recurrent, Somatic Symptom Disorder with predominant pain, and Specific Phobia, Situational type (vehicular) in her report dated January 22, 2025. She opines that the close temporal association with the accident and the onset of symptoms show that the accident made a material contribution to the applicant’s pre-existing symptoms. The s. 44 assessor Dr. Sharma, psychiatrist, diagnoses the applicant with Adjustment Disorder with depressed mood and anxiety - chronic - moderate severity, Chronic Pain Disorder with both psychological factors and general medical condition, and Post-Traumatic Stress Disorder (PTSD) - pre-existing condition in his report dated May 30, 2024. His report does not explicitly state that these conditions were caused by the accident. However, he makes the distinction that the applicant’s PTSD is pre-existing. It reasonable to infer that the other mental health conditions are not pre-existing and caused by the accident.
Activities of Daily Living (ADL)
105I find that the applicant has a Class 3, Moderate impairment.
106This area of functioning evaluates a person’s ability to engage in activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. The quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
107Both s. 25 and s. 44 assessors agree that the applicant has a Class 3, Moderate impairment in the ADL. The applicant submits that a meaningful review of her functioning shows that she has a Class 4, Marked impairment.
108The respondent submits that a Class 3, Moderate impairment is the appropriate rating.
109Section 25 evaluator, Ms. Bukhari, occupational therapist, assessed the applicant over a two day period from January 6-7, 2025 and issued her report on February 10, 2025. During the interview portion of the examination, the applicant told Ms. Bukhari that she does very few household chores. Various reasons were given such as pain and fatigue, and also because she lacks motivation and has depression symptoms. She does some chores such as folding laundry and making a simple meal for herself such as bowl of cereal, or cheese and crackers. She also explained that some heavier household tasks are performed by a cleaner who comes once per week and her son.
110The s.25 Occupational Therapy Attendant Care Assessment Report by Ms. Aird, occupational therapist, dated December 22, 2022 describes similar tasks that the applicant cannot complete. For example, being unable to do perform heavier household cleaning tasks. However, the only impairments mentioned by the applicant are pain limitations. Ms. Aird was aware that the applicant sustained mental health injuries in the accident. Despite this, psychological issues were not identified as an impairment to completing household chores when the applicant applied for attendant care.
111Ms. Aird also describes the applicant as being independent with personal care, except for pain limitations which decrease the frequency of task completion. I note that this is a change from the September 21, 2021 attendant care assessment when low mood was identified as a reason for requiring attendant care for grooming. This was no longer the case by December, 2022.
112The Re-assessment Report of Ms. Aird, dated September 29, 2023, makes similar findings to the December, 2022 report. The applicant’s abilities to complete personal care tasks and household chores is limited by pain.
113I give more weight to the findings of Ms. Aird. As the applicant’s treating occupational therapist she spent more time with her than the occupational therapists who assessed the applicant for the catastrophic impairment determination. As such, Ms. Aird has greater insight into the applicant’s functioning and more weight should be given to her observations.
114The applicant has depressive symptoms and low mood and this impacts her ability to complete the ADL. She became more isolated after the accident and no longer engages in social and recreational activities, other than the activities she completes with her son. She has issues with sleep and no interest in sexual function. She cannot complete heavier household tasks, but the evidence shows that this is also due to pain limitations.
115Even so, she can complete light household tasks and engages in personal care. She is able to look after her son who is currently 10 years old. For these reasons, I agree with the opinions of Dr. Milenkovic and Dr. Sharma, that the applicant’s mental and behavioural impairments are compatible with some useful functioning and that she has a Class 3, Moderate impairment in ADL.
Concentration Persistence and Pace (CPP)
116I find that the applicant has a Class 3, Moderate impairment in CPP.
117CPP refers to the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings. Concentration may also be reflected in the ability to complete everyday household tasks.
118The applicant submits that she has a Class 4, Marked impairment in CPP. She relies on Dr. Milenkovic’s report which states that the applicant has significant difficulty in concentration and attention due to anxiety and severe depression.
119The respondent submits that the applicant has a Class 3, Moderate impairment rating in CPP. Dr. Sharma made this rating because of the applicant’s ability to stay focused and complete tasks during the evaluation, her score of 30/30 on the Standardized Mini-Mental Status Examination, and also because she can complete light housekeeping duties if she paces herself. He noted that her functional deficits are caused by a lack of physical stamina and energy.
120The applicant has not returned to work since the accident. She worked as a cleaner for Molly Maid before the accident. Given her pain complaints and the use of a cane to ambulate, there is no reasonable expectation that she could return to this type of physically demanding work.
121In 14.3 of Chapter 14, the Guides note that concentration may be reflected in the ability to complete everyday household tasks. There is no clear evidence that the applicant has any cognitive challenges when completing light household tasks like folding laundry, and making simple meals.
122The report of Ms. Bukhari, occupational therapist, shows that the applicant scored 22 out of 30 on the Montreal Cognitive Assessment (MoCA). The same test was administered by Dr. Basile and the applicant scored 21 out of 30. According to Ms. Bukhari, a score of 26 is considered within normal limits. There are no descriptions in either report on how to interpret the test results, other than the applicant’s cognitive functioning being below normal. Ms. Bukari does opine in her report that the MoCA is a rapid screening instrument for mild cognitive dysfunction.
123Dr. Sharma administered the Standardized Mini-Mental Status Examination where the applicant got a perfect score. His report provides no direct commentary on how to interpret these results, although these results are presented in the context of being an indication of good functioning.
124The 2023 attendant care reassessment by Ms. Aird does note some cognitive challenges. For example, the applicant getting confused at times while reading, forgetting to turn off the stove, and sometimes forgetting to lock her door at night.
125Cognitive difficulties were also reported by Ms. Bukhari. She testified that the applicant struggled to focus and complete questionnaires near the end of one of the assessments. As a result, Ms. Bukhari had to complete the forms by eliciting answers from the applicant. The applicant also struggled with a task requiring her to put names in alphabetical order and a weekly calendar planning task.
126The applicant was able to obtain custody of her son. She accomplished this goal after the accident in 2022, when he was 7 years old. In the December 22, 2022 report of Ms. Aird, the applicant reported that her typical day included helping her son get ready for school, making him a quick breakfast, making his lunch, ensuring he brushed his teeth, and helping him get dressed. At that time, she was walking him to school. More recently, her mobility issues have resulted in this duty being taken on by a neighbour.
127This morning routine is significant because it requires the applicant to complete a number of tasks in a timely fashion to ensure that her son gets to school on time with everything he needs for the day. The successful completion of these tasks over the past three years shows that her cognitive impairments do not impede her morning duties as a mother.
128The applicant has cognitive challenges. This is seen in some of the results of the cognitive testing. It is also seen in such things as losing focus while reading, forgetting to turn off the stove and lock her door at night, and completing forms after a lengthy assessment with Ms. Bukhari. Even so, there is no evidence of cognitive issues with completing light household tasks and maintaining a morning routine with her son. As such, her impairments are compatible with some useful functioning and I find that she has a Class 3, Moderate impairment in CPP.
Social Functioning and Adaptation
129Neither assessor has found that the applicant has an extreme impairment in social functioning or adaptation. As such, there is no basis for me to find that the applicant has any extreme impairment.
130Having found that the applicant has two moderate impairments, I further find that she is not catastrophically impaired under Criterion 8.
Housekeeping
131Under section 23 of the Schedule, housekeeping benefits are available to persons who are catastrophically impaired.
132As the applicant is not catastrophically impaired, she is not entitled to these benefits.
Attendant care benefit and treatment plans
133The parties agree that the applicant has exhausted the non-CAT limits of her medical rehabilitation benefits. As such, I find that no analysis for the attendant care benefit and the treatment plans is necessary as no funds are available to pay for these benefits.
Interest
134Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as no overdue benefits are owing.
Award
135The 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.
136The applicant submits that the respondent should pay an award of 50% of the treatment plan listed as issue 13. This treatment plan was submitted to the insurer in June 6, 2022. According to the applicant, she attended an insurer examination with Dr. Mor, psychologist, who deferred an opinion to a neuropsychologist. The respondent did not complete the subsequent insurer examination until two years later in 2024. The applicant argues that this had severe consequences for her in terms of denying her access to treatment for such a lengthy period of time and that an award on the higher end of the scale is appropriate to deter this behaviour in the future.
137The respondent argues that it would be unfair for the Tribunal to address the award issue because the respondent never received the particulars of the award and has not had an opportunity to address this issue. The respondent further argues that the basis for the award is unfounded because the applicant did not attend scheduled insurer examinations and caused the delay in the processing of this treatment plan.
138I agree that it was necessary for the applicant to provide the particulars before the hearing as required by the CCRO. Instead, the basis of the award was provided at the end of the hearing, after the parties closed their case. Under these circumstances, the respondent does not have a meaningful opportunity to address this issue. Thus, I find that it would be unfair to further consider this issue and that the respondent is not liable to pay an award.
ORDER
139The applicant is not catastrophically impaired.
140The remainder of this application is dismissed.
Released: March 10, 2026
Harry Adamidis
Adjudicator