Citation: Friesen v Intact Insurance Company, 2026 ONLAT 24-013189/AABS

Licence Appeal Tribunal File Number: 24-013189/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:

Sarah Friesen

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Gurleen Thethi

APPEARANCES:

For the Applicant:

Dagmara Wozniak, Counsel Bryan Samson, Counsel

For the Respondent:

Paul Barnes, Counsel

Court Reporter:

Jo Velimirovic, Network Reporting and Medication

HEARD by Videoconference:

August 11, 12, 13 and 14, 2025

OVERVIEW

1Sarah Friesen, the applicant, was involved in an automobile accident on September 25, 2019, 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.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic (“CAT”) impairment as defined by the Schedule? Note: Criterion 8 is in dispute.

ii. Is the applicant entitled to $4,980.00 for optometric services, proposed by Dr. Susan Buxton in a treatment plan/OCF-18 (OCF-18) submitted August 3, 2021?

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

3At the beginning of the hearing, the applicant withdrew attendant care benefits as an issue in dispute. The applicant also withdrew her claim to an award as an issue in dispute.

RESULT

4I find that:

i. The applicant did not sustain a CAT impairment pursuant to s. 3.1 of the Schedule.

ii. The applicant is not entitled to the treatment plan in dispute.

iii. The applicant is not entitled to interest.

PROCEDURAL ISSUES

5At the outset of the hearing, the respondent raised a concern that any documents not specifically referenced to in the applicant’s brief should not be relied upon by the Tribunal. I clarified that hearing briefs are not admitted in their entirety; rather, parties must identify and mark documents as exhibits for them to be considered. This clarification addressed and resolved the respondent’s concern.

ANALYSIS

Has the applicant sustained a CAT impairment as defined by s. 3.1 of the Schedule?

6The applicant has not sustained a CAT impairment pursuant to s. 3.1 (“Criterion 8”) of the Schedule.

7To qualify as CAT under Criterion 8, an individual must sustain a Class 4 (“marked impairment”) as a result of the accident in three out of the four spheres of functioning or a class 5 impairment (extreme impairment) in one or more areas of function, outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), due to a mental or behavioural disorder.

8The Guides set out that mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment.

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)

9In support of her position that she meets CAT status under Criterion 8, the applicant relies on the s. 25 CAT assessment report of Dr. Biederman, a psychologist, undertaken in November 2021. The applicant also relies on the reports of Amy Herring, Occupational Therapist (“OT Herring”) and Karen Clark, Occupational Therapist (“OT Clark”), undertaken in May 2023 and May 2024. The applicant submits that the reports of the occupational therapists should be given significant weight, noting that they have seen the applicant several times in her home and community, not just in an ideal assessment setting. The applicant argues that the Tribunal should accept Dr. Biederman’s opinion because both the s. 25 and s. 44 CAT OT assessments confirmed that she had significant functional limitations as a result of her accident-related psychological impairment. Dr. Biederman opined that the applicant has a moderate impairment in Activities of Daily Living and two marked impairments in Social Functioning, and Concentration, Persistence and Pace. Dr. Biederman also indicated that the applicant has an extreme impairment in Adaptation.

10The respondent relies on the s. 44 assessments of Dr. Sivasubramanian, Psychiatrist, undertaken in December 2023. The respondent also relies on the CAT IE of Kelly Wendt, Occupational Therapist (“OT Wendt”), completed in December 2023. Dr. Sivasubramanian concluded that the applicant has a moderate impairment in all four spheres of functioning.

11The parties’ respective positions are set out 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			Applicant Respondent
Social Functioning			Respondent	Applicant
Concentration, Persistence and Pace			Respondent	Applicant
Adaptation (Deterioration in a work-like setting)			Respondent		Applicant

12I find Dr. Sivasubramanian’s report and testimony did not assist me in my determination as he heavily relied on the assessment of OT Wendt and completed a limited 1.5 hour virtual assessment. During cross-examination, Dr. Sivasubramanian did little to justify his moderate impairment ratings. For example, he testified to assigning apportionment to his ratings, despite there being no direct guidance from the AMA Guides and was unable to quantify the amount.

13Dr. Sivasubramanian confirmed on cross-examination that he had not reviewed the collateral interviews conducted by other assessors. During cross-examination, errors were identified in his report. For example, Dr. Sivasubramanian acknowledged that he had incorrectly recorded that the applicant was unable to get out of bed for two weeks at a time. He clarified that the report should have stated the applicant was sometimes unable to leave her home.

14This matter is complicated by the fact that the applicant has a significant pre-accident medical history. The respondent argues that the accident was not the sole cause of the applicant’s psychological impairments which form the basis of her application for CAT status. The respondent submits that she has a lengthy history of psychological illness, specifically anxiety and depression, which all had a significant impact on her pre- and post-accident function. The respondent submits that the applicant’s self-reported accident-related impairments, as well as her descriptions of pre- and post-accident functioning, are unreliable. The respondent argues that the applicant has minimized her pre-accident level of functioning and that her statements are inconsistent with the medical records.

15The respondent submits that the applicant has been a recipient of Ontario Disability Support Program (“ODSP”) since the 1980’s, only being off the program for a period of approximately 2 years, during her time in British Columbia. Upon her return to Ontario, the applicant appealed her initial denial of benefits, and the ODSP materials from the hearing support the applicant had the following pre-accident functional limitations.

i. Low mood, loss of interest, lack of motivation, increased anxiety level, and poor levels of concentration level.

ii. Anxiety and depression for many years.

iii. Had difficulty leaving her house at times

iv. She has dark curtains on her windows to block the outside and only leaves her home when necessary.

v. Her family physician at the time supported the application that the applicant had a long history of depression and anxiety, which makes it difficult for her to maintain a task.

vi. She has a difficult time learning new information.

vii. Poor sleep pattern, only able to complete activities of daily living at her own pace.

16I treat the ODSP determinations and pre‑accident descriptors as relevant but not determinative, given the different statutory tests and the applicant’s own conflicting testimony.

17Dr. Sivasubramanian testified that given the applicant’s pre-existing conditions, his ratings had been apportioned to reflect the impairment levels to the subject accident. The applicant provided submissions indicating that as per the AMA Guides, there is no provision for apportionment, and as such, Dr. Sivasubramanian’s ratings were reduced, and had he correctly provided ratings, they would also indicate that the applicant has a CAT impairment.

18The applicant acknowledged that her pre-accident medical history was significant, however, pre-accident she had “more good days than bad” and took no medication or treatment for her anxiety or depression. She argues that the accident exacerbated her condition. I note that the applicant is not currently on any medication for her anxiety or depression.

19It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability and that the accident need not be the only cause of the impairment but must be a necessary cause.

20While I accept that both parties’ CAT assessors agree the accident was a necessary cause of the applicant’s impairments, the question that remains is whether the evidence establishes that the applicant meets the criteria for a catastrophic impairment. Although there are differences in how each assessor evaluates the extent and nature of those impairments, which I will address below, the issue before me is whether the applicant satisfies the statutory test for a CAT designation.

21Based on the following reasons I do not find the applicant has marked impairments in three out of the four spheres of functioning or a class 5 impairment in one or more areas of function.

Activities of Daily Living

22The reports of the parties’ CAT assessors agree that the applicant suffers from a moderate impairment in this aspect of functioning. I find that the applicant does not have a marked impairment for this sphere. I acknowledge the applicant’s testimony and submissions regarding activities of daily living; however, in light of the assessors’ consensus on this domain, I accept their assessment. My analysis will focus on the remaining three areas of functioning.

Social Functioning

23I find that the applicant has a moderate impairment in the sphere of Social Functioning.

24The Guides indicate that social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics.

25Strength in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behavior, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered. Social functioning in work situations may involve interactions with the public, responding to persons in authority such as supervisors, or being part of a team.

26When asked to describe her social life, the applicant testified that she does not have one, besides her son and daughter-in-law. The applicant testified that prior to the accident, she did not really socialize but described herself as a “social butterfly”. The applicant explained that she used to easily talk and make conversation with people and now does not leave her home as often as she did prior to the accident.

27The applicant’s son testified that prior to the accident, his mother would keep in contact with many family members. Post-accident, his mother does not go out anymore and does not converse with people in the community anymore. Further, his mother does not have a social life outside her son, daughter-in-law and the few family members she keeps in touch with. The applicant’s son further testified that prior to the accident, you could have a conversation with the applicant, and now post-accident you have to carry the conversation.

28The applicant’s expert, Dr. Biederman, testified and reported that the applicant suffers from a marked impairment in social functioning, relying on her limited relationships with providers, her son and daughter-in-law, and her avoidance of new social interactions. OT Clark testified that the applicant was generally socially proper, spoke well, though briefly, with those in the community. Further, the applicant was generally pleasant with her interactions with neighbours. OT Clark testified that there were instances where the applicant would be upset with service employees in the community but confirmed that these would not be described as outbursts. In the assessment dated May 2023, OT Herring reports that the collateral interviews of the applicant’s son and daughter-in-law indicate the applicant would get bothered by strangers in the community but has not verbalized her irritation towards anyone she does not know personally.

29The respondent’s expert, Dr. Sivasubramanian, in his report and testimony, indicated that he assigned a moderate impairment rating in this domain as the applicant continues to maintain good relationships with her family members, referring to her son, and daughter-in-law. Dr. Sivasubramanian also notes that the applicant had a good relationship with her sister, prior to her recent passing.

30I am not persuaded that the applicant’s impairment in social functioning rises to the level of a marked impairment. While Dr. Biederman opined that the applicant is markedly impaired based on her limited relationships and avoidance of new social interactions, this opinion is not supported by the preponderance of evidence. The applicant continues to maintain meaningful relationships with her son and daughter-in-law, and previously with her sister, as noted by Dr. Sivasubramanian.

31Further, the testimony and reports of OT Clark and OT Herring indicate that the applicant remains socially appropriate and pleasant in her interactions with neighbours and community members, and while she may experience irritation toward strangers, she does not verbalize hostility or engage in outbursts. These observations demonstrate some withdrawal and reduced social engagement; however, they do not establish the pervasive inability to interact appropriately or communicate effectively contemplated by the Guides for a marked impairment. There is no evidence of significance before me to suggest that the applicant has had any angry outbursts or conflict with people outside the home. I have not been pointed to evidence of a history of altercations, evictions, firings, or fear of strangers.

32Accordingly, I find the evidence supports a moderate impairment rating in the sphere of social functioning.

Concentration, Persistence and Pace

33I find that the applicant has a marked impairment in the sphere of Concentration, Persistence and Pace as a result of her accident-related psychological impairment.

34The Guides define this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. The Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration. Frequency of errors, the time it takes to complete a task and the extent of which assistance is required to complete a task are factors to consider in assessing this sphere.

35The applicant testified that in 2016, she had moved in with her son. During the years prior to the accident, she would keep the kitchen clean and mop the floors. The applicant would cook for the entire family once a week and would cook for herself regularly. The applicant did her own laundry and enjoyed knitting and reading. Following the accident the applicant testified that she is completely unorganized. The applicant has not done laundry in a year and she relies on the assistance of her son to help manage her finances. The applicant’s son testified that his mother’s memory is now “awful” post-accident.

36OT Clarke observed frequent distraction and difficulty sustaining attention, while Dr. Biederman reported poor recall, task avoidance, and a tendency to become easily overwhelmed. These findings are supported by the collateral interviews confirming the applicant’s increased dependence on her son.

37I find that the applicant’s impairment in the sphere of Concentration, Persistence, and Pace meets the threshold for a marked impairment. The applicant’s testimony demonstrates a significant decline in her ability to initiate and complete tasks post-accident, including basic household activities such as laundry and cooking, which she previously managed independently. She now relies on her son for assistance with finances and other organizational tasks.

38I accept Dr. Biederman’s opinion because it is supported by objective observations, psychological testing, and collateral interviews that corroborate the applicant’s significant decline in functioning post-accident. Her assessment considered multiple sources of information, including the testimony of the applicant’s son about her increased dependence and memory issues, which aligns with the applicant’s own account and OT Clarke’s observations of frequent distraction and difficulty sustaining attention. This comprehensive approach provides a more reliable basis for concluding that the applicant’s impairment in Concentration, Persistence, and Pace is marked.

39I put less weight on Dr. Sivasubramanian’s moderate rating as it was based on a brief assessment without collateral input.

40The Guides emphasize the ability to sustain focused attention for timely task completion, and the applicant’s demonstrated deficiencies in this regard combined with her reliance on assistance, as evidenced by the reporting of Dr. Biederman and OT Clark and the applicant’s testimony at the hearing, reflect a severe and pervasive limitation. Accordingly, I conclude that the applicant has a marked impairment in this domain.

41For the above noted, reasons I find that the applicant has a marked impairment in the sphere of Concentration, Persistence and Pace.

Adaptation

42I find that the applicant has a marked impairment in the sphere of Adaptation.

43The Guides define impairment in Adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” An impairment in Adaptation affects the ability to function across all activity areas.

44While the applicant has had a significant reduction in her performance of household chores, I find it notable that neither parties’ assessors concluded that the applicant had a marked or extreme impairment in activities of daily living. This indicates that, despite some limitations, the applicant has not demonstrated difficulty maintaining basic activities of daily living to the degree contemplated by the Guides.

45With respect to employment at the time of the accident, I note that the applicant was not working. The employment history of the applicant is limited, as she has generally been on ODSP since the 1980s, due to her mental health and physical impairments prior to the accident. As a result, “work or work‑like settings” provide limited probative value in establishing change post‑accident, and the more reliable indicators of adaptation are her home and community functioning. I interpret this to mean that the applicant’s functional limitations in adaptation are longstanding and compounded by pre-existing vulnerabilities.

46In his report, Dr. Sivasubramanian assigned the applicant a moderate impairment in Adaptation. However, as previously noted, I find that his report and testimony contain minimal reasoning to support his rating. Dr. Biederman in her report assigned the applicant an extreme impairment rating in adaptation, emphasizing that that the applicant would not be able to meet any measurable standard for a work or work-like setting at this time or into the foreseeable future.

47The post‑accident evidence—including OT Wendt’s observations and collateral interviews with the applicant’s son and daughter‑in‑law—demonstrates a marked deterioration in the applicant’s adaptive functioning. She now struggles to initiate tasks, often abandons them before completion, and shuts down when faced with urgency. Her functioning is further compromised by disorganization and the deteriorated state of her home environment. These difficulties extend to essential activities such as cooking and maintaining a daily routine, coupled with an increased tendency to withdraw from community‑based activities.

48Dr. Fogarty conducted neuropsychological testing with validity measures and found the applicant able to complete tasks in a controlled setting with breaks, supporting a valid profile while nevertheless noting significant functional impacts and adopting a conservative stance due to inconsistencies in self‑report. The applicant’s testimony is corroborated in material respects by collateral sources and functional observations rather than self‑report alone.

49I find that the applicant has a marked impairment in adaptation because the evidence demonstrates a substantial deterioration in her ability to manage stress and maintain functional stability within her home and community environments following the accident. This is supported by credible collateral observations and functional assessments, which show that she now struggles to initiate and complete tasks, withdraws under pressure, and exhibits disorganization and reduced engagement in community activities.

50I am not persuaded that the applicant’s impairment in adaptation rises to the level of an extreme impairment. While I prefer Dr. Biederman’s reports over those of Dr. Sivasubramanian due to their depth and comprehensive collateral information, I do not accept Dr. Biederman’s extreme rating for this sphere. Her conclusion appears to rely heavily on the applicant’s inability to function in structured or work-like settings, which is less probative given the applicant’s longstanding history of unemployment and reliance on ODSP prior to the accident. The evidence does not demonstrate a complete inability to engage in social relationships or maintain any meaningful interpersonal contact. Collateral sources confirm that the applicant continues to interact with family members and maintains a few connections, albeit with reduced frequency and increased withdrawal. These limitations are significant but do not amount to the pervasive and severe disruption contemplated by an extreme impairment under the Guides.

51I find that the applicant has not met her onus on a balance of probabilities that she has three marked impairments or one extreme impairment in the spheres of functioning under Criterion 8. Although I acknowledge that the applicant sustained some impairments as a result of the accident which have negatively impacted her life, these impairments do not meet the CAT threshold in accordance with the Schedule.

Medical Benefits

The applicant is not entitled to the plan for optometric services

52I find that the applicant has not proven on a balance of probabilities that the treatment plan for optometric services is reasonable or necessary.

53Under s. 15 and 16 of the Schedule, the applicant bears the burden of establishing that the proposed treatment is both reasonable and necessary as a result of the accident. This requires demonstrating the treatment goals, how those goals would be achieved to a reasonable degree, and that the associated costs are proportionate to the anticipated benefit.

54The OCF-18 authored by Dr. Susan Buxton, a Neuro-Optometrist, proposed 20 weekly sessions of vision therapy at $150.00 per session, totaling $3,000.00, plus additional charges for progress evaluations, service, and reports, bringing the total plan cost to $4,980.00. The stated goal was to improve visual efficiency following the accident.

55While Dr. Buxton diagnosed the applicant with binocular vision status, post-traumatic vision syndrome secondary to a concussion, and related dysfunctions, her report expressly notes that her assessment did not include a regular eye examination nor an assessment of ocular health. This limits the scope of her findings and raises questions about whether the proposed therapy addresses accident-related impairments rather than general visual performance.

56In contrast, the respondent relies on the IE report completed by Dr. Larry Allen, an Ophthalmologist. Dr. Allen conducted a comprehensive ophthalmic examination and concluded that the applicant’s ocular health was normal for her age and that there were no ophthalmic sequelae attributable to the accident. His findings directly contradict the necessity of the proposed treatment.

57I acknowledge that the applicant testified to and consistently reported vision-related symptoms such as blurriness, light sensitivity, and dizziness to her family physician and various assessors following the accident. These complaints indicate some functional difficulty post-accident.

58While the applicant was asymptomatic regarding these issues before the accident, her pre-accident medical records and Dr. Buxton’s report confirm that she had farsightedness and nearsightedness, which are common refractive conditions and unrelated to the accident. These conditions can themselves cause symptoms such as blurry vision, as noted in Dr. Buxton’s report, and raises questions about whether the reported symptoms stem from the accident or to longstanding vision issues.

59I prefer Dr. Allen’s opinion because it is based on a comprehensive ophthalmic assessment and directly addresses accident-related causation. Dr. Buxton’s report, while detailed in describing functional vision issues, does not establish that these issues arose as a direct consequence of the accident or why the proposed therapy is necessary to restore pre-accident function.

60The applicant did not provide submissions pertaining to the specific goals of treatment, how those goals would be achieved, and whether the costs are reasonable in relation to the expected benefit. Without this information, I cannot conclude that the plan meets the statutory test.

61Accordingly, I find that the applicant has not met her onus to prove on a balance of probabilities that the OCF-18 is reasonable and necessary.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, I find that the applicant is not entitled to interest.

ORDER

63For the above-noted reasons, I order as follows:

i. The applicant did not sustain a CAT impairment pursuant to s. 3.1 of the Schedule.

ii. The applicant is not entitled to the treatment plan in dispute.

iii. The applicant is not entitled to interest.