Licence Appeal Tribunal File Number: 25-000965/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:
Stephen Schad
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Alon Barda, Counsel
For the Respondent:
David Raposo, Counsel
Court Reporter:
Guido Riccioni
HEARD: by Videoconference:
December 15, 16 & 17, 2025
OVERVIEW
1Stephen Schad, the applicant, was involved in an automobile accident on July 25, 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, Certas Direct, 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 $6,780.00 ($11,752.00 less $4,972.00 approved) for CAT Assessments, proposed by Q-Medical in a treatment plan/OCF-18 (“plan”) dated March 26, 2024?
ii. Is the applicant entitled to $275.40 ($3,738.68 less $3,463.28 approved) for a social work assessment, proposed by MediWise in a plan dated March 26, 2024?
iii. Is the applicant entitled to $1,050.00 for a Dietetic Assessment, proposed by MediWise in a plan dated August 28, 2024?
iv. Is the applicant entitled to $3,118.84 for Other Goods and Services, proposed by Q-Medical in a plan dated September 3, 2024?
v. Is the applicant entitled to $1,850.00 for Cost of Examinations for a Psychological Assessment, proposed in a plan dated February 10, 2022?
vi. Is the applicant entitled to $2,192.98 for Other Assistive Devices, proposed by Q-Medical in a plan dated September 3, 2024?
vii. Is the applicant entitled to $3,243.58 for Case Manager Services, proposed by MediWise in a plan dated August 28, 2024?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. 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 (“CAT”) as defined by criterion 8 of the Schedule?
RESULT
4The applicant is catastrophically impaired under criterion 8.
PROCEDURAL ISSUES
5The respondent filed a motion to exclude Tabs 73, 75, 76 and, at outset of the hearing, it requested to add tab 77 as part of the exclusion of the applicant’s hearing brief at the hearing.
Exclusion of the Tab 73 PowerPoint presentation by presenters Dr. Jeremy Frank and Ms. Sessel
6The respondent submits that Tab 73 of the brief contains a power point presentation by Dr. Jeremy Frank and Ms. Seesel on how to rate a catastrophic impairment under criterion 8 and how to assess the 4 domains within that criterion. The respondent contests the inclusion of these slides as evidence at the hearing, testifying these opinions are being tendered as expert opinions and it takes the position their opinions are irrelevant to the issues in dispute and therefore it should be excluded.
7The applicant conceded and withdrew the power point presentation from his document brief.
Exclusion of Tab 75,76 and 77 of the applicant’s hearing brief
8The respondent also requests the exclusion of Tabs 75, 76 and 77 from being admitted into evidence. The respondent made submissions these tabs contain allegations of misconduct obtained by the applicant from the College of Psychologists against Psychologist Dr. Ronald Frey which occurred in 2007. He is to appear as one of the respondent’s CAT assessors. The respondent argues Dr. Frey continues to be licenced in Ontario, he was licenced on the day he assessed the applicant and was never found guilty of engaging in any type of misconduct. These allegations are inflammatory and irrelevant to the issues in dispute and these tabs should not be admitted into evidence.
9Tabs 75, 76, and 77 will not be admitted into evidence. I find the content in in these tabs are irrelevant to the issues in dispute pursuant to the Rules. Facts or perceived facts pertaining to these allegations will not be considered by me throughout this hearing as it does not speak to the legal test or the issues in dispute.
Dr. Frey accepted as an Expert Witness
10The applicant cited another case concerning Dr. Frey which occurred a few years ago, he submits these two cases are significant and speaks to Dr. Frey’s credibility and fitness as a doctor, and as a witness for this hearing.
11Lastly, the applicant also questions Dr. Frey’s ability to speak to the issue of CAT as he is not a medical doctor, he is a psychologist. The applicant is of the opinion that only a licenced medical doctor should be able to assess the applicant and speak to any CAT issues.
12The respondent submits the applicant filed a late motion to challenge Dr. Frey’s expertise and it did not provide reasons pursuant to Rule 10.4 which states:
A party intending to challenge an expert witness' qualifications, report, or witness statement must:
a) give notice, with reasons for the challenge, to the other parties no later than 21 days before the hearing; and
b) file a copy of the notice with the Tribunal as part of the hearing brief filed by the party pursuant to Rule 9.
13Therefore, he should be allowed to testify. The fact that he is not a medical doctor is irrelevant. It points me to section 45.1 of the Schedule which states that CAT impairments should be conducted by a physician, it submits that only applies to the applicant not the respondent.
14Next, I am satisfied that as of the time of Dr. Frey’s assessment of the applicant and as of today he continues to have a valid Ontario Licence to Practice in the realm of Psychiatry based on both parties’ submissions. I accept him as a licenced Ontario Psychologist, and I find the proceedings which may be in front of the disciplinary committee are irrelevant to this matter.
15I am not persuaded by the applicant’s argument that because Dr. Frey is a psychologist, he is unable to opine on the applicant’s impairments. First, I find the onus is on the applicant to prove his case, and to prove on a balance of probabilities based on the opinions of his experts that the applicant is catastrophically impaired under criterion 8. I agree with the respondent’s submission that the Schedule indicates the applicant is required to have a medical doctor opine and determine a catastrophic impairment that requirement does not apply to the respondent.
16Lastly, the respondent’s submission that the applicant did not give proper notice of the intent to exclude Dr. Frey as a witness pursuant to Rule 10.4. I agree with the respondent. The applicant did not give notice with reasons according to the Rule, therefore I have denied the applicant’s request to remove Dr. Frey as an expert witness in this matter.
ANALYSIS
Background
17The applicant was riding a motorcycle when he was involved in a car accident while entering on to the highway. While driving in the left lane a car moved over, touched the front tire of his wheel at which point the applicant went over the handlebars and rolled for about 200 meters in the direction of oncoming traffic. He was taken by ambulance from the scene to the nearest hospital for care.
The applicant has sustained a criterion 8 catastrophic impairment as a result of the accident
18The issue in this case is focused on the extent of the applicant’s psychological impairments and whether he is catastrophically impaired under criterion 8.
19For the reasons that follow, I find that the applicant has met the legal test and has been determined to have suffered a catastrophic impairment as a result of the accident.
20In order to meet the threshold for a CAT impairment under Criterion 8, an individual must have sustained three marked (class 4) impairments out of the four spheres of functioning or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the American Medical Association Guides, 4th edition, 1993 (“Guides”). Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four spheres of functioning and the levels of impairment as outlined in the chart below.
Area or Aspect of Functioning
Class 1: NO Impairment
Class 2: MILD Impairment
Class 3: MODERATE Impairment
Class 4: MARKED Impairment
Class 5: EXTREME Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaption (In a work-like setting)
21The applicant submits that he has (class 4) marked impairments in the functional areas of activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation. He relies on the Catastrophic Determination Multidisciplinary Assessment Report dated March 27, 2024, authored by Dr. William Gnam Psychiatrist. Dr. Gnam relies on the opinions of Elise Freedman, Occupational Therapist, Ranya Ghatas and Justin Gilmour, Occupational Therapists, and Ms. Revital Shuster, Social Worker, for his assessment of a catastrophic impairment determination.
22He testified he sustained cuts and lacerations to the majority of his body, torn rotator cuff, twisted knee, severe headaches, constant neck pain, intermittent left arm numbness, low back pain, and ongoing chronic pain. He also reports altered cognitive functioning, reduced memory, difficulty with focus, attention, disturbed sleep, low mood, irritability, and generalised driver/passenger anxiety . He also testified he has become agoraphobic and is having difficulty regulating his emotions resulting in a short fuse and a quick loss of temper.
23The respondent provided surveillance evidence which shows instances of the respondent standing outside of a bank, and outside of his house wheeling in a garbage bin to an area which appears to be the gate of the applicant’s back yard. It testified that the surveillance supports its opinion of the applicant being active in his activities of daily living.
24The respondent also takes the position that the applicant’s assessors did not apportion for the applicant’s previous mental health impairments due to childhood trauma and his pre-accident Opioid Use Disorder. It argues if the applicant’s assessors had given those impairments consideration, they would agree the applicant does not meet the test for a catastrophic impairment. It relies on the opinion of Dr. Frey.
25Dr. Frey testified someone with pre-existing childhood trauma likely will materially contribute to a mental disorder, therefore he argues the applicant’s mental health impairments stem from his previous trauma and not from this accident. He referenced the applicant’s past Opioid Use Disorder and testified the applicant’s assessors did not apportion for his pre-existing condition when conducting their analysis. He did not provide an analysis of the applicant’s pre and post accident mental or behavioral functioning when assessing the applicant.
26The applicant argues there is noting to apportion. Based on the opinion of Dr. Gnam who reviewed the applicant’s medical records, he opined the records do not support any pre-existing issues from chronic pain, posttraumatic symptoms, depression, or significant in-vehicular anxiety or avoidance prior to the accident. Therefore, Dr. Gnam is of the opinion that the onset of all of the applicant’s mental impairments are directly related to this accident. Regarding the applicant’s Opioid Use Disorder, Dr. Gnam opined the applicant’s disorder was controlled and stabilized at the time of the accident.
27Dr. Frey determined based on the applicants psychological and behavioural impairments he suffers (class 3) moderate impairments in the functional areas in all four spheres; ADL, social function, CPP, and adaptation, which does not meet the test for a CAT impairment under criterion 8.
28The respondent also relies on the opinions of Occupational Therapist Ms. Jessica Oh and surveillance footage taken on May 26, 27, 31, June 3 & 6 of 2025.
29I find Dr. Frey’s opinion very generalized and without specific medical references to the applicant’s current medical history outside of stating he had an Opioid Use Disorder from a long time ago. I am not persuaded Dr. Frey reviewed the applicant’s recent medical history before providing his opinion. He has not pointed to any recent medical evidence or any testing he has done to support his opinion, and I find his opinion is not supported by any other assessors. Because of that fact, I give little weight to his belief there should be apportionment for the applicant’s pre-existing condition.
Activities of Daily Living
30I find that the applicant has established on a balance of probabilities that he has a marked impairment under criterion 8 under the area of ADL due to his accident-related mental or behavioural disorder.
31The expert reports refer me to the Guides describing this domain as follows:
The Guides, 4th Edition specify that activities of daily living functioning include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, 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 of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
32The applicant has been together with his common law partner for over 30 years living in a house they owned. He testified that they did almost everything together on a daily basis and enjoyed each other’s company. He led a very full life, he worked, took care of his home, socialized and was active and able to manage all of his daily activities independently.
33The applicant testified that prior to the accident, his partner was in charge of making the bed, the changing their bed sheets, and doing the laundry. He carried the majority of the housekeeping load. He was responsible for cooking 3 meals a day for himself and his partner, housekeeping, grocery shopping daily, taking out the garbage, lawn maintenance, indoor/outdoor maintenance including any renovations, repairs around the house, feeding and exercising his two dogs, and managing his portion of his personal finances.
34He also testified that prior to the accident he was able to take care of his daily hygiene, showered daily, changed his clothing twice a day, completed his oral care and shaved daily. He managed his personal care routine without any limitations. He was able to manage his medication intake independently and had no issues with sleep disturbances.
35He was employed as a food truck/delivery driver with the additional responsibility to service and repair machinery when it was down, a very physically demanding job. Due to COVID-19, he was laid off from work but was able to supplement his income by working as a delivery driver.
36The applicant testified that post-accident, things have completely changed he is a shell of a person, he has gone from a fully independent person who took care of his partner to someone who now relies on her for everything, he can no longer work outside of the home or manage his ADLs. He finds he is unmotivated and unable to do any of the things he could prior to the accident due to psychological/emotional and physical symptoms.
37When he stands for more than 20 minutes at a time, he experiences wobbliness, and neck pain which results in severe headaches leading to symptoms of nausea, he then needs to lay down for relief. He also experiences constant difficulty with focus, memory, motivation, depression, attention and concentration. He is unable to multitask, make decisions, or organize anything which causes him to have a short temper, experience irritation, anxiety and low mood.
38He testified after the accident he rarely showers (once every three weeks), wears the same clothing day in and day out, does not attend to his nails/toenails, infrequently goes to the barber for grooming. He testified he does not have the desire to take care of himself and only cleans himself up when he has a scheduled appointment because he does not want to be embarrassed and for people to think less of him.
39Because of his disturbed sleep and ongoing nightmares of the accident, he now sleeps on a couch in his living room as to not disturb his partner. He estimates he sleeps only three hours at night and naps during the day.
40Since he has such low motivation, and pain restrictions, according to the applicant’s testimony, his partner now has taken on the household duties which has caused much friction in their relationship.
41While food and cooking was a passion for the applicant, he testified he no longer has the ability to cook as he find it stressful and more to the point, he has very little appetite and only eats one time per day if he remembers.
42According to his testimony, he rarely leaves the house, he and his partner used to enjoy outings to garage sales, flea markets, long walks with the dogs, motives, socializing with friends and a passion for motorcycles and long rides. He no longer leaves the house to participate in any of those things. Now he avoids driving due to his driver/passenger anxiety and has only driving his motorcycle twice since the accident.
43Ms. Shuster documents in her Social Work report that she conducted collateral interviews with the applicant’s partner, mother-in-law and son. These all confirmed his low activity and change in his ADLs. His partner has taken on the heavy load of looking after all of the needs of the house. She manages his medication intake and reminds him of the bills that need to be paid as he often forgets. The applicant’s family reports the applicant is no longer able to walk and take care of his dogs as he once did, and the applicant testified that walking the dogs is difficult as it exacerbates his neck pain.
44Dr. Gnam conducted an in-person assessment which took over 3 hours and 40 minutes to conduct. According to the DSM-5, Dr. Gnam diagnosed the applicant with Persistent Depressive Disorder, (with persistent major depressive episode moderate), Posttraumatic Stress Disorder, Specific Phobia (situational), Somatic Symptom Disorder (with predominant pain, persistent, mild). He opined the applicant meets a class 4 marked impairment in this sphere as the applicant went from a fully independent person pre-accident, to becoming heavily reliant on his partner due to his physical and mental impairments. His reduced motivation, lower energy, low frustration tolerance, increased irritability and anger has affected his self esteem and had a negative impact on his ability to carry on his ADLs. Dr. Gnam also testified he did not believe the applicant could live alone and function; he needs ongoing assistance.
45Ms. Freedman opined in her occupational therapy assessment that the applicant’s feeling of apathy, lack of sleep, low motivation, fatigue and ongoing pain is what hinders his ability to mange his ADLs. Ms. Freedman’s report indicates the applicant suffers clinically significant levels of catastrophizing. He tested 80% on the Rumination subscale, 86% on the Magnification subscale, and 87% on the Helplessness subscale, which are highly elevated levels in comparison to others who experience chronic pain.
46Ms. Ranya Ghatas and Mr. Gilmour authored a Catastrophic Impairment Determination Occupational Therapy Report dated September 28, 2023. During their assessment they made note of the applicant’s deterioration since the accident, he was observed showing signs of pain and discomfort and his assessors determined he was at risk of falling based on their observations. They also observed significant difficulties in relation to this psycho-emotional state and his mental/behavioural abilities which limited his ability to complete his self-care and personal hygiene activities. They opined that his inability to achieve restorative sleep impacts his ability to function. They also reported he has an inability to plan, time manage, multi-task, and work around other people which has led to a decreased inability to participate in his ADLs.
47I find the mental/behavioural findings of Ms. Ghatas and Mr. Gilmour are in line with the diagnosis of Dr. Gnam and his findings.
48Dr. Frey opined, based on his assessment and his review of Ms. Oh’s Independent Occupational Therapy Evaluation and her Situational Evaluation Report, that the applicant does not meet a class 4 marked impairment.
49During cross examination, Dr. Frey testified his opinion was verified by a medical doctor on his assessment team before releasing his report, but he did not specify which doctor. His assessment took place virtually over a two-hour period, which included the time the applicant took to fill out most of the questionnaires.
50Dr. Frey administered a series of tests which included an MMPI-3 validity test and found the following. The applicant scored high on the DASS21 scale (extremely severe symptoms of depression); 87% in the pain catastrophizing Scale (PCS); phobic avoidance of travelling in a motor vehicle in the Accident Fear Questionnaire (AFQ); (PTSD) pursuant to the results of the PTSD Checklist-Civilian Version Post Traumatic Stress Disorder as a result of the accident; evidence of somatic symptoms, anxiety; and the applicant spends excessive time and energy around his experienced somatic symptoms. Dr. Frey’s testified his observations of the applicant during the assessment did not match the results of the tests, therefore he relied on his professional judgement to form his opinion.
51As noted above, Dr. Frey diagnosed the applicant with an Adjustment Disorder, Somatic Symptom Disorder and sub-threshold PTSD. Dr. Frey referred to the applicant’s impairments as “severe” during his testimony and he also testified the applicant was having difficulty transitioning from his “able self” to his “unable self”. In his report, Dr. Frey concluded the applicant’s impairments are moderate at best.
52Dr. Frey’s assessment of the applicant’s impairments as moderate, despite his diagnosis and the testing results, is based on the fact that the applicant did not present as anxious, depressed, and was answering questions appropriately and often times laughed during the assessment. As a result, Dr. Frey questioned the findings of the tests and consequently opined that the applicant does not suffer a catastrophic impairment in this domain. During his testimony, Dr. Frey opined that the behavior he observed from the applicant during his assessment is not congruent with someone with severe depression and anxiety. He supports his position by placing emphasis on the fact that the applicant reported that he felt some improvement within the last six months, after being prescribed new medication and getting mental health treatment.
53I prefer the opinions of the section 25 assessors over the opinion of Dr Frey. I find Dr. Frey’s opinion contradicts the results of the tests he conducted, his diagnosis and the findings of Ms. Oh, and he places too much emphasis on the applicant’s self reporting about an improving condition. Ms. Oh said in her report based on her observations of the applicant, with the help of the applicant’s mental health treatment providers is that his independence with his daily ADL is improving. She did not opine that his functioning is high enough to manage his ADLs on his own. I find Dr. Frey did not consider or reference this in his report when he was providing his opinion. I also find although Dr. Frey summarizes the applicant’s pre-existing activities within his report, he does very little to analyze the applicant’s pre and post accident functioning. In my opinion he selectively took sentences and small sections of Ms. Oh’s report, the medical records before him and the applicant’s self reporting and formed an opinion. I find by doing so he missed the overall picture of the applicant’s ability to function.
54Further, I find the collateral interviews, conducted by Social Worker Ms. Revital Shuster, are consistent with the applicant’s self reporting and the findings of Dr. Gnam. The applicant’s mother-in-law Ms. Marhy Harhany, Shane Donnelly the applicant’s friend, Tory Schad, the applicant’s son, Dean Clarice, applicant’s friend, Graydon Vintar, the applicant’s friend’s son, Michelle McFadden, applicant’s sister, John Blakerman, applicant’s neighbour, Kenny Jones, applicant’s friend, all reported consistent observations of the applicant and comment that he has had complete change in personality, is reclusive, uninterested in any of his pre-accident hobbies, forgetful, relies on his partner, doesn’t shower, doesn’t do house maintenance and many other concerns.
55I have also considered the surveillance evidence submitted by the respondent. The surveillance shows such instances as the applicant leaving a bank, driving a car, and talking to a neighbour, and dragging his garbage bin to the back of his house. I find these short instances of activity in this specific surveillance material does not necessarily speak to the applicant’s overall functioning and his ability to manage his ADLs. Therefore, I give the surveillance evidence little weight.
56When I compare the applicant’s overall, pre-accident functioning to his current functioning in carrying out his ADLs, I find that his current impairment levels significantly impede useful functioning. While the applicant can still perform some of his ADLs, I find that there has been a significant reduction in almost all areas of functioning because of his accident-related mental or behaviour disorder. For example, I find that while the applicant can physically brush his teeth, occasionally shower, occasionally prepare a meal and randomly grocery shop, he struggles to perform multiple self-care and household tasks in one day, due to depression, feeling overwhelmed, anxious, distracted and lacking motivation. I also find that, whereas the applicant interacted with work colleagues, family and friends routinely and he enjoyed multiple social and recreational activities pre-accident, his social and recreational activities are now significantly curtailed.
57In my opinion the applicant has met his onus on a balance of probabilities he has suffered a class 4 marked impairment in the sphere of Activities of Daily Living.
Social Functioning
58The expert reports refer me to the Guides describing this domain as follows:
The Guides, 4th Edition specify 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, neighbours, 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. Strengths 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 behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.
59I find the applicant has established on a balance of probabilities that he has a marked impairment in the area of Social Functioning under criterion 8 as a result of his accident-related mental/behavioural condition.
60In his testimony, the applicant described his pre-accident social life as one full of friendship and laughter. He described his home pre-accident as a warm and welcoming place full of friends and a bustle of activities including weekly poker games which he hosted. He belonged to a motorcycle community, where they would go on long rides together, or his friends would stop by for mechanical advice about their motorcycles. He was very passionate and knowledgeable about motorcycles and enjoyed giving his friends advice. He also loved fishing, he would often go with his son, now he no longer does any of those things, he prefers being alone and does not seek out company due to his deep depression and anxiety. He no longer has friends coming over, rarely responds to telephone calls or text messages and overall disinterest and withdrawal socially from his friends and alone at home with his partner has greatly affected his marital relationship.
61He testified that he and his partner did most things together. He reported to Dr. Gnam he and his partner used to enjoy outings together to garage sales, flea markets, taking long walks with the dogs, and going to the movies. Since the accident things have been strained between them because he is no longer that man who is able to overcome his anxiety and depression to do those activities again. He testified that now he rarely leaves the house, he rarely goes to see his parents who live out of town and there has been a decline with the relationship with his son, they don’t talk as much.
62Dr. Gnam opined the applicant’s motivation impairment, situational anxiety fatigue and general detachment from others which he describes as a consequence from a PTSD diagnosis, have resulted in the applicant’s significant decline in the ability to commence social interactions and maintain them. The applicant’s irritability further affects his close relationships. Dr. Gnam points to the collateral interviews by some of the closest people in his life who agree, he has become distant, irritable, withdrawn and disinterested. Based on his assessment and considering the AMA Guides, he opined the applicant suffers from a class 4 marked impairment because of his avoidance of interpersonal relationships, and social isolation.
63Dr. Frey and Ms. Oh assessed the applicant and opined he has an improved ability to socialize since the accident. They point to the applicant’s visits with his son, and parents, and the fact that he keeps in touch with his sister. Dr. Frey also relies on the applicant’s self reporting that he has improved over the last 6 months with new medication and mental health treatment. What these assessors do not provide is an analysis of the applicant’s pre and post accident functioning and what has changed.
64I find there is a heavy reliance on the applicant’s report that he is getting better. What I am not provided with is an analysis of how much better. The applicant did testify that he used to see his parents monthly but now he sees them two times per year and that is at the urging of his spouse. The applicant also testified that he talks to his sister once per year and although the applicant testified that he has a good relationship with his son, testified there has been a decline in their relationship and they do not speak as often.
65Based on his assessment, Dr. Frey opines that the applicant has a class 3 moderate impairment in this sphere.
66I find the applicant has consistently testified and reported to his assessors examples of avoidance behaviour and social isolation and the collateral interviews with those who know him best supports his subjective reporting, His testimony also is supported by the findings of Dr. Gnam and the other assessors/treatment providers, therefore I find his testimony credible and give it strong consideration.
67It seems contradictory to me that Dr. Frey would diagnose the applicant with Adjustment Disorder with mixed anxiety and depressed mood, moderate, Somatic Symptom Disorder with predominant pain, moderate and other Specified Trauma-and-Stressor Related Disorder (sub-threshold PTSD) and refer to the applicant’s impairments as severe during his testimony but concludes the applicant’s function has improved and he does not suffer an impairment because the applicant did not give the appearance of distress during the assessment.
68Further, Dr. Frey also recommended interpersonal psychotherapy treatment with a focus on transitions, loneliness and isolation to address the applicant’s diagnosis of an adjustment disorder which I find is much more in line with his testimony that the applicant’s impairments are severe.
69In my opinion the applicant has a significant decline in his ability to interact socially and as such has a marked impairment in this sphere.
70The applicant has met his onus to establish on a balance of probabilities that he has a marked impairment in the sphere of socialization.
Concentration, Persistence and Pace
71The applicant has met his onus that he suffers a marked impairment in the area of Concentration, Persistence and Pace under criterion 8 as a result of his accident-related mental/behavioural condition.
72The expert reports refer me to the Guides describing this domain as follows:
The Guides define this area as incorporating 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 to which assistance is required to complete a task are factors to consider in assessing this area under criterion 8.
73Prior to the accident, the applicant was able to maintain a high-pressure job, requiring mechanical precision and tight time constraints according to his testimony. He had no difficulty with his cognitive functioning.
74Today he submits his cognitive ability is greatly affected, he has difficulty with work like tasks and activities of daily living due to poor motivation/initiation, fear of pain, depression, anxiety, self confidence, fatigue and ongoing severe headaches. He is heavily reliant on his partner to assist him with almost everything.
75Throughout the hearing, the applicant required continuous prompting and questions repeated as he was having difficulty processing information. Ms. Freedman found the same during the Occupational therapy In-Home Assessment. She observed cognitive deficits, he would forget where he left his personal objects, required repeated instructions, distractibility and attention lapses. He has an emotional response when he can’t do things, he testified he becomes irritable, overwhelmed and depressed, it makes it hard to get up again and try.
76She also observed his pain levels made it difficult to persist during their community-based group testing which in her opinion makes him withdraw from those activities.
77Dr. Gnam opined the applicant suffers a class 4 marked impairment in this sphere. He references Ms. Freedman’s Occupational Therapy report, the collateral interviews collected by Ms. Shuster and the applicant’s performance on the Modified Multiple Errands Test objectively supports a deterioration in his cognitive functioning. He also opines the applicant’s emotional status and level of pain along with his fear of exacerbating that pain reduces the applicant’s level of activity and his ability to be self sufficient. He exhibits avoidance tendencies and does not complete activities of daily living in an effective or timely manner which is a common opinion contained in the collateral interviews.
78The respondent showed surveillance evidence of the applicant leaving the bank. He testified that in an effort to try to be more independent and improve, he tried to do some banking for his partner but by the time he got there he forgot which bank he was to go to and went to the wrong one. His memory issues, attention and focus deficits affect his ability to plan, multi-task, organize and contain important information in his head. I find his testimony regarding his behaviour in the surveillance supports his reporting that he is experiencing cognitive issues which affecting ability to concentrate.
79Dr. Frey made note of the applicant’s inability to return to work for a number of reasons including cognitive difficulties and, in his summary/conclusion section of he indicates the applicant suffers from physical symptoms/mood related avoidance related behaviours and experiences cognitive distortions (catastrophizing thinking) which is putting the applicant in a cycle of increased depression, anxiety and, decreased activity. There were no findings of pre-existing cognitive disfunction in Dr. Frey’s report. He does not provide any further analysis or reference to how he referenced the Guides to form an opinion or make a determination about the applicant’s cognitive impairment. He finds the application has a class 3 moderate impairment in this sphere.
80In Ms. Oh’s Independent Occupational Therapy Evaluation assessment, she indicates the applicant was able to carry on a conversation with a switch in questioning, he was able to recall information and engage in casual discussion. Her assessment was conducted over a 2 day 7-hour period. She noted some performance issues with tasks, she indicates there were no memory, attention or communication issues, however when she asked to manipulate a budget in several ways, she reports she observed his ability to “reasonably manage” a real budget correctly. I find within Ms. Oh’s reports there are many generalities and little objective findings. “Some performance issues” and “reasonably manage” are subjective opinions based on her observation which does not assist me in making a determination. I find her report lacks specificity and Ms. Oh does not correlate her opinion and observations to the Guides therefore, I give her report little weight.
81Based on Dr. Gham’s findings, which are supported by collateral interviews and an assessment of the applicant, the applicant’s testimony and my observations during the hearing, as well as Dr. Frey’s conclusion that the applicant cannot return to work due to cognitive impairments; I find the applicant has a marked impairment in this sphere.
82The applicant has met his onus on a balance of probabilities he suffers a class 4 marked impairment in this sphere.
83As a result of my finding of 3 marked impairments I do not need to consider the 4th domain, however for the purpose of completeness I have considered the last domain.
Adaptation
84I also find the applicant has established on a balance of probabilities that he has an accident-related marked impairment in the area of Adaption under criterion 8 due to his mental/behavioural disorder.
85The expert reports refer me to the Guides describing this domain as follows:
Deterioration or decompensation in work or work-like settings refer to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is decompensate and have difficulty maintaining ADLs, continuing social relationships and completing tasks. Stressors common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.
86The applicant testified that he isolates himself away from society as he experiences anxiety, depression, and frustration because of his inability to focus and because of his cognitive impairments. He testified he tries to focus on something, but he quickly forgets what he was doing and is unable to go back to it, he then becomes frustrated and depressed. Further, he is often easily fatigued, he starts off ok in the moment, then as time progresses, he becomes fatigued, irritable, unable to remember, anxious, experiences headaches, and is focused on his pain.
87Dr. Gnam opines that the applicant withdraws and decompensates when he is in a situation with demands and stressors similar to work like environments. Further, Dr. Gnam reported that the applicant exhibited signs of distress when completing the multiple errands test during the occupational therapy assessment. Dr. Gnam also opines that the applicant lacks the ability and tolerance to effectively perform task initiation, planning, execution and multi tasking. The outcome during the occupational therapy assessment when he was given tasks is errors, missed completion of tasks, poor performance, and inability to follow instructions. He would not be ablet to sustain himself in a work like setting. Further, the applicant struggles to remain actively engaged and focused, emotionally contained, communication, cooperation and perseverance needed. Therefore Dr. Gnam opined he suffers a marked impairment in this sphere.
88Dr. Frey points to Ms. Oh’s assessment and opines the applicant was able to select and participate in a short outing. He notes the applicant did not display overt expressions of anxiety, without signs decompensation afterwards. He indicates the applicant rated his fatigue from moderate to very fatigued. He finds the application has a class 3 moderate impairment in this sphere.
89I am not persuaded by Dr. Frey and Ms. Oh’s opinion based on Ms. Oh testimony, when the applicant was asked to do the Modified Calendar Task, the applicant had some difficulty performing the task, he could do it for 1 hour then he needed a break showing signs of decompensation. She also testified that when she asked him to pick an outing, he chose something short and simple, the applicant testified he picked a short outing with limited tasks as he finds it stressful and exhausting. His testimony and Ms. Oh’s observation is in line with the information gathered from the collateral interviews, the applicant becomes irritable, fatigued, anxious and decompensates. Dr. Frey based his opinion on the fact that the applicant did not show signs of decompensation after the assessment. However, Ms. Oh testified she did not follow up to see the effects of the assessment on the applicant’s overall well-being, therefore no determination can be made regarding his level of decompensation. I find Dr. Frey did not take into consideration Ms. Oh’s observations and findings when he formed his opinion, therefore his opinion little weight.
90I find on a balance of probabilities that the applicant suffers a class 4 marked impairment in the sphere of Adaptation.
Conclusion
i. I find based on the evidence before me, the applicant has met his onus and is catastrophically impaired under criterion 8.
ORDER
i. The applicant is catastrophically impaired under criterion 8.
Released: March 18, 2026
Mary Henein Thorn
Adjudicator