Licence Appeal Tribunal File Number: 24-008030/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:
Michael Lapointe
Applicant
and
Intact Insurance Company
Respondent
DECISION
PANEL:
Jeremy A. Roberts Sam Moini
APPEARANCES:
For the Applicant:
Kristy Kerwin, Counsel Nitish Bali, Counsel
For the Respondent:
David Murray, Counsel
Asal Karimi, Counsel
Court Reporter:
Guido Riccioni
HEARD: by Videoconference:
April 28, 29, 2025 & December 1, 2, 3, 4, 5, 8, 2025
OVERVIEW
1Michael Lapointe, the applicant, was involved in an automobile accident on May 9, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule? (Criterion 7 and 8)
ii. Is the applicant entitled to attendant care benefits in the amount of $1,601.38 per month from January 30, 2024 to date and ongoing?
iii. Is the applicant entitled to $5,085.00 ($12,328.30 less $7,243.80 approved) for a Catastrophic Impairment Assessment, proposed by Omega Medical Associates in a plan submitted November 3, 2021, and denied November 9, 2021?
iv. Is the applicant entitled to $1,582.00 for a WPI Catastrophic Impairment Assessment, proposed by Omega Medical Associates in a plan submitted January 25, 2022, and denied February 3, 2022?
v. Is the applicant entitled to $2,486.00 for an Occupational Therapy Assessment, proposed by Total Healthcare Solutions in a plan submitted November 24, 2022, and denied December 8, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew his claim for an award.
RESULT
4The applicant is not catastrophically impaired as defined by the Schedule.
5The applicant is not entitled to any of the remaining issues in dispute or interest.
ANALYSIS
The applicant is not deemed catastrophically impaired under criterion 8
6We find that the applicant is not deemed catastrophically impaired under criterion 8 because we find that none of his impairments rise to the level of marked impairment.
7In order prove his case, the applicant must demonstrate that he has suffered accident-related impairments that result in a marked (class 4) impairment in one or more areas of function or an extreme (class 5) impairment in one or more areas of function according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”) 4th Edition due to a mental or behavioural disorder. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides set out the four spheres of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
8Here is a chart demonstrating the areas of functioning and the description of the levels of impairment as set out in the Guides:
Area 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 & Pace
Adaptation
9The applicant submits that he suffers from a Class 4 marked impairment in 2 areas of functioning, social functioning and adaptation. The respondent submits that the applicant does not suffer from a Class 4 impairment in any area of functioning. Their respective positions are set out below. (Class 5 is omitted as it is not relevant)
Area or aspect of functioning
Class 1: No impairment
Class 2: Mild impairment
Class 3: Moderate Impairment
Class 4: Marked impairment
Activities of daily living (ADL)
Respondent
Applicant
Social functioning
Respondent
Applicant
Concentration, persistence, and pace (CPP)
Respondent
Applicant
Adaptation – Deterioration or decompensation in work or work-like settings
Respondent
Applicant
10The onus is on the applicant to prove his case.
11As part of their submissions on catastrophic impairment, the parties made arguments on causation, which will form an integral part of our analysis as we work through the decision and its implications. To establish causation, pursuant to Sabadash vs. State Farm et al., 2019 ONSC 1121, the applicant must establish on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for the benefits claimed. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause.
A. Social Functioning
12We find the applicant has not sustained a marked impairment in the domain of social functioning because we find that his impairments are still compatible with some but not all useful functioning and we find that some of his impairments were not caused by the accident.
13This area of functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.
14The applicant argued that he sustained a marked impairment in social functioning as a result of symptoms arising from several accident-related diagnoses identified by his psychiatric assessor Dr. Henry Rosenblat. Dr. Rosenblat’s report dated August 14, 2020, diagnosed the applicant with major depressive disorder (likely recurrent) with anxious distress, as well as somatic symptom disorder with predominant pain. Dr. Rosenblat based the conclusion of marked impairment on the applicant’s self reporting, valid psychological testing, and corroborating medical records from occupational therapists, psychiatrists/psychologists, and physicians.
15Dr. Rosenblat opined that the applicant’s mental and behavioral conditions caused significant irritability, resulting in the loss of all friendships with minimal relationships with neighbours. The report further noted that the applicant had very limited contact with his family and that the applicant’s relationship with his common law spouse had deteriorated since the accident, including sexual dysfunction and episodes of emotional and physical abuse. This was corroborated by the testimony of the applicant’s brother and former common law spouse. This, the applicant argued, was in contrast with his relationship’s pre-accident. He argued that before the accident he had re-established a relationship with his mother and was living with her. While the applicant acknowledged a significant pre-accident history of legal troubles and substance abuse, he testified that he had made considerable improvements in the seven years preceding the accident, had no arrests during this period, and had his substance abuse under control.
16The respondent submits that the applicant failed to meet his onus of proving that he sustained a marked impairment in social functioning. In support of this position the respondent relied on the report of psychiatrist, Dr. Velan Sivasubramanian, dated September 14th, 2021. Dr. Sivasubramanian diagnosed the applicant with a mild adjustment disorder with anxious and depressed mood, as well as relatively mild traffic related anxieties that do not meet the threshold for a diagnosable disorder or condition. As a result, Dr. Sivasubramanian assessed a mild impairment in the area of social functioning. Dr. Sivasubramanian based this conclusion on the applicant's self reporting, valid psychological testing, and corroborating medical records from occupational therapists, psychiatrists/psychologists, and physicians.
17The respondent argued that, per this report, the applicant has demonstrated at most a mild impairment in social functioning. It noted that after the accident, the applicant enlisted in George Brown College in 2018, attended alcohol anonymous, and abstained from alcohol for a period of time. It highlighted the applicant’s ability to file income tax returns for the previous five years, which demonstrated improvement in his functioning. It argued that these were all evidence of some useful functioning in the sphere of social functioning.
18Additionally, the respondent disputed the claim that the applicant’s alcohol and substance abuse issues were largely resolved prior to the accident, pointing to the applicant’s own testimony that the accident occurred because he consumed approximately 20 beers and took a Percocet hours before the accident. Dr. Sivasubramanian’s report further noted a history of anger management issues, including multiple arrests for assault. Dr. Sivasubramanian further indicated that many of the applicant’s difficulties with social functioning were likely attributable to his history of alcohol and substance abuse. These issues were not a consequence of the accident in question but instead had been present beforehand, as evidenced by multiple prior incidents including many arrests. This pattern suggests that the applicant’s challenges in maintaining stable social interactions and relationships were longstanding and influenced by pre-existing substance use behaviors rather than arising from the effects of the accident.
19We agree with the respondent and find the applicant has not met his onus of demonstrating he suffered a marked impairment in social functioning as a result of the accident. We found Dr. Sivasubramanian’s report and testimony to be well reasoned and articulated, highlighting areas of mild impairment as a result of the subject accident while separating impairments he believed predated the accident.
20We find that the applicant was demonstrating a level of social functioning compatible with most or some useful functioning. His attendance at college, participation in rehab programs, and productivity during this time corroborate this finding. He also maintained some degree of a relationship with his partner. Moreover, this improvement was also supported by the testimony of psychotherapist Michelle Meegan which corroborated these findings.
21Additionally, we agree that a number of the impairments the applicant is suffering from in connection to social functioning, on a balance of probabilities, would likely have still been present “but for” the subject motor vehicle accident (“MVA”). We find that many issues that occurred with the applicant, including arrests and assaults post-accident, were a result of his alcohol abuse, an issue which predated the accident. The applicant’s history of substance abuse is well-documented by both s. 25 and s.44 assessors, as well as his own testimony. We found that following the accident, the applicant experienced a brief period of abstinence from alcohol during which he was functioning significantly better. Then, alcohol use caused his functioning to deteriorate once again. We are not persuaded by the argument made the applicant that this issue had largely resolved itself pre-accident.
22Accordingly, we find that the applicant has not established that a number of his impairments in social functioning are as a result of the accident. The evidence further establishes that the applicant has demonstrated a level of social functioning compatible with most or some useful functioning. Therefore, we find that the applicant has not sustained a marked impairment in social functioning as a result of the accident.
B. Adaptation
23We find the applicant has not sustained a marked impairment in the domain of adaptation because we find that his impairments are still compatible with some but not all useful functioning and we find that some of his impairments in this domain were not caused by the accident.
24The Guides define impairment 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.”. By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness and sustainability.
25The applicant argued that he sustained a marked impairment in adaptation as a result of the symptoms arising from accident-related diagnoses identified by Dr. Rosenblat, including major depressive disorder (likely recurrent) with anxious distress, as well as somatic symptom disorder with predominant pain, as outlined earlier in this decision. Dr. Rosenblat found that the applicant suffered from a marked impairment, based on the applicant’s self reporting, valid psychological testing, and corroborating medical records from occupational therapists, psychiatrist/psychologists, and treating physicians.
26Dr. Rosenblat reported that the applicant had primarily been involved in construction and demolition, on and off, for 15 years prior to the accident. His last job before the accident was with “Post Busters” where he was operating four by four posts from a truck as well as mixing cement in wheelbarrows. He opined that the applicant’s mental and behavioral conditions resulted in impaired adaptation, leading to a significant reduction in household chores, an inability to plan his day, increased social isolation, and unsuccessful attempts to return to work. Dr. Rosenblat also noted that the applicant attempted to return to school post accident but was unsuccessful.
27The respondent argued the applicant did not meet his onus of proving he sustained a marked impairment in adaptation. The respondent relied on the testimony and report of Dr. Sivasubramanian, where a mild impairment rating was given in the area of adaptation. Dr. Sivasubramanian states that prior to the accident there is evidence the applicant struggled to maintain work, working no more then two months with any employer, with his last period of employment being a week. Furthermore, his report notes that the applicant is relatively independent with his personal care. The respondent argued that while the applicant has some limitations in adaptation, these are primarily a result of pre-existing issues that pre-date the subject accident.
28We agree with the respondent and find that the applicant has not met his onus in demonstrating he suffers from a marked impairment in adaptation as a result of the subject accident. We found Dr. Sivasubramanian’s report was more consistent with the applicant’s accident-related injuries and evidence than that of Dr. Rosenblat. Although the applicant exhibits certain psychological issues, we find that these are more attributable to his pre-existing problems with alcohol, which existed prior to the accident, as noted earlier in this decision and in Dr. Sivasubramanian’s report, where he concluded. “At the time of his index accident, I suspect that he had been struggling with both alcohol and perhaps illicit substances”. The applicant made an effort to return to school, post-accident, during a period of sobriety and was actively attending Alcoholics Anonymous (“AA”). His education was discontinued only after he experienced a relapse.
29We also found the applicant’s arguments about his pre-accident employment to be inconsistent with the evidence provided. The applicant’s tax documents revealed that the applicant had no income the year prior to the accident and was receiving government assistance. The applicants ODSP form dated June 22, 2016, stated the applicant had not worked in the five years predating when the form was signed. This suggests to us that the applicant’s functioning has not changed substantially pre- vs. post-accident in this area.
30Therefore, we find that the applicant has not sustained a marked impairment in the sphere of adaptation.
31Given that we have found that the applicant has not suffered a marked impairment in either the areas of social functioning or adaptation, and that the applicant concedes that he only suffers from a moderate impairment in the areas of CPP and ADLs, we find that the applicant is not catastrophically impaired under criterion 8.
The applicant is not deemed catastrophically impaired under criterion 7
32We find that the applicant is not deemed catastrophically impaired under criterion 7.
33To be found to have a catastrophic impairment under the Schedule under criterion 7, the applicant must prove on a balance of probabilities that the impairments they suffer as a result of the accident have a combined physical and mental/behavioural rating that results in a whole person impairment (“WPI”) rating of 55% or more. Physical impairments are rated using the American Medical Association (AMA) Guides (the “Guides”) 4th Edition. Mental/behavioural impairments are rated using the Guides 6th Edition. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one as determined by the case Liu v. 1226071 Ontario Inc., 2009 ONCA 571.
34The Guides are a compilation of chapters that contain specific rating criteria for the degree of impairment to a particular body system. To arrive at a total WPI rating under the Schedule, each individual impairment must first be rated separately under the corresponding chapters within the Guides. Once the individual impairment ratings are obtained, they are combined according to a formula in the Guides to arrive at the total WPI rating. The combination relies on a formula rather than a straight addition method. Importantly, the Guides are concerned with impairments, not specific diagnoses.
35Notably, prior to June 1, 2016, neither the Schedule nor the Guides provided a set method for medical experts to convert psychological impairment ratings under Chapter 14 to a WPI%. However, the two most popular approaches at the time included: (a) using the “Global Assessment of Functioning Scale” (“GAF”); or (b) using Table 3 of Chapter 4 of the Guides.
i. The GAF scale is used to estimate an individual’s overall psychological, social and occupational functioning on a scale of 0 to 100. The higher the score, the better the function. The California Method is then used to convert the GAF score into a WPI% for the purpose of combining physical with psychological impairments under the Guides to get a final WPI for the purpose of determining catastrophic impairment.
ii. Table 3 provides a range of percentages for mild (1-14), moderate (15-29) and marked impairments (30-49), which correspondent with WPI ratings.
36The onus is on the applicant to prove their case on a balance of probabilities.
37The applicant was assessed by a team of s. 25 assessors and s. 44 assessors. Here are their findings on the applicant’s WPI:
Applicant’s Expert (WPI)
Respondent’s Expert (WPI)
Scarring
5%
3%
Lower Extremity
8%
8%
Upper Extremity
Ulnar Neuropathy (30% UEI) combined w/ Elbow ROM (8% UEI) = 36% UEI → 22% WPI
Elbow ROM = 5% WPI = 3%
Migraines
Not Rated
3%
Mental Behavioral
30-34% (GAF method)
14% (Table 3 method)
TOTAL
55%
24%
38The applicant argued we should accept Dr. Rosenblat’s mental behavioural WPI rating of 30-34%. Dr. Rosenblat used the GAF score of 50-48 which corresponded to the 30-34% WPI score utilizing the California model. Dr. Rosenblat’s conclusions were based on his diagnoses of major depressive disorder (likely recurrent) with anxious distress, as well as somatic symptom disorder with predominant pain. As mentioned above in this decision, Dr. Rosenblat based his conclusions on the applicant’s self reporting, valid psychological testing, and corroborating medical records from occupational therapists, psychiatrists/psychologists, and physicians. Dr. Rosenblat’s report states that the applicant has a high degree of anxiety in relation to his pain and major depression which was corroborated through the psychometric testing that was administered to the applicant. The applicant’s testimony of being depressed and isolated, which was corroborated by testimonies of the applicant’s brother and companion, supports Dr. Rosenblat’s conclusions.
39The respondent argues Dr. Sivasubramanian’s mental behavioural WPI rating of 14% should be accepted. Dr. Sivasubramanian’s report relies on Table 3, p. 142 of Chapter 4 of The Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993, and the results suggest mild impairment, which corresponds to 0% to 14% whole-person impairment. Dr. Sivasubramanian’s conclusions were based on his diagnoses of a mild adjustment disorder with anxious and depressed mood. Also mentioned above in this decision, Dr. Sivasubramanian based his conclusions on the applicant’s self reporting, valid psychological testing, and corroborating medical records from occupational therapists, psychiatrists/psychologists, and physicians. Dr. Sivasubramanian’s report states that the applicant had a significant pre-accident history of mental health concerns which included being diagnosed with antisocial personality disorder, attention-deficit/hyperactivity disorder, and polysubstance use disorder. The applicant was also struggling with alcohol, and possibly other illicit substances that pre-dated the accident. He does not believe the applicant’s pre-occupation with his pain is excessive and therefore does not believe that the applicant meets the criteria for Somatic Symptom Disorder with predominant pain.
40We find that the applicant has not met his onus of demonstrating that a mental/behavioural WPI of 30-34% is supported by the evidence. We agree with the respondent that a rating of 14% better reflects the applicant’s accident-related presentation. A GAF rating of 50-48 correlates with a patient who presents with “any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).” As we addressed above, the applicant was able to return to school for a period, participated in programs (like AA), and maintained a degree of productivity. Moreover, his ability to work does not seem notably changed pre vs. post-accident. The impairments he does suffer from appear to stem largely from his alcohol use, an issue which pre-dated the accident (as noted by Dr. Sivasubramanian). We find that, on a balance of probabilities, these impairments would still have been present regardless of the accident.
41We find that Dr. Sivasubramanian’s WPI score of 14% is a more accurate assessment of the applicant’s condition as a result of the accident. The applicant was found to have maintained a positive relationship with his mother and to have continued a relationship with his companion, albeit to a lesser degree than previously. For a period following the accident, the applicant demonstrated improvement, as evidenced by his attendance at George Brown College and his participation in AA, even moving in with his companion for a period of time. All these behaviours support a finding of impairment closer to 14% than to 34% for mental/behavioural WPI.
42We find that the applicant cannot meet his onus of demonstrating he has achieved a WPI of 55% without his 30-34% mental behavioural rating. Even accepting the remainder of his ratings, a 14% mental/behavioural rating would put his overall WPI at 42%, falling short of the required threshold. As such, we find that the applicant is not catastrophically impaired under Criterion 7.
The applicant is not entitled to Attendant Care Benefits
43As the parties agreed the funding limits were previously exhausted and having found that the applicant does not meet the definition of a catastrophic impairment, no additional analysis is required to determine if attendant care benefits in dispute are reasonable and necessary pursuant to the Schedule.
The applicant is not entitled Treatment Plans
44As the $50,000.00 funding limit was previously exhausted, no additional analysis is required to determine if the treatment plans in dispute are reasonable and necessary pursuant to the Schedule.
The applicant is not entitled to the remainder of the catastrophic assessments
45While the Tribunal has previously found that catastrophic assessments are payable outside the $50,000.00 funding cap, we do not find that the applicant has met their onus of demonstrating that the outstanding amounts are reasonable and necessary.
46The applicant did not address or make any arguments in support of his position that the denied portion of the catastrophic assessments were reasonable and necessary. It is not the trier of fact’s role to make the applicant’s case for him. As highlighted above, it is the applicant’s onus to prove that the denied portion of the assessments were reasonable and necessary. In the absence of any submissions or evidence in support of same, we conclude that the applicant did not meet his onus in proving his entitlement to the denied portion of the catastrophic assessments.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because we have not determined that any benefits are overdue.
ORDER
48The applicant is not catastrophically impaired as defined by the Schedule.
49The applicant is not entitled to any of the remaining issues in dispute or interest.
50This application is dismissed.
Released: April 14, 2026
Jeremy A. Roberts
Vice-Chair
Sam Moini
Adjudicator