Licence Appeal Tribunal File Number: 24-009699/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:
Iyana Kerr-Knights
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Aline Avanessy, Counsel
For the Respondent: Angelo Sciacca, Counsel
HEARD: Review of the Transcript and Exhibits from the Videoconference Hearing Held on May 26-May 30, 2025
OVERVIEW
1Iyana Kerr-Knights, the applicant, was involved in an automobile accident on June 7, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In a decision released August 12, 2025, the Tribunal found that the applicant was catastrophically impaired (“CAT”) under Criterion 8. The Tribunal also determined that the applicant was not entitled to an income replacement benefit (“IRB”) from March 2, 2021 to September 1, 2024, but was entitled to an IRB from September 1, 2024 to date and ongoing, plus interest. Finally, the Tribunal found that the applicant was not entitled to a treatment plan for a CAT assessment.
3In a reconsideration decision released January 29, 2026, a rehearing was ordered solely on the issue of entitlement to an IRB. The Tribunal denied the respondent’s request for reconsideration of the Tribunal’s finding on the CAT determination. The rehearing was to be conducted by review of the transcripts and exhibits from the initial hearing.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to an IRB in the amount of $226.53 per week from March 2, 2021 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that:
i. The applicant is not entitled to an IRB from March 2, 2021 to April 10 2023; and
ii. The applicant is entitled to an IRB in the amount of $226.53 per week from April 11, 2023 to date and ongoing, plus interest.
ANALYSIS
Background
6The applicant was involved in a motor vehicle accident on June 7, 2019. She was cycling home without a helmet, when she was struck by a right-turning vehicle. She fell onto her right side and sustained injuries, including pain to her right knee, right elbow, right hand and neck, together with a fracture of the fifth finger of her right hand. The parties do not agree as to whether the applicant hit her head and sustained a concussion as a result of the accident. However, there is no dispute that the applicant had previously sustained a concussion in 2013 while playing soccer, and that she had suffered from post-concussive symptoms for years after this concussion. However, the applicant argues that she was fully recovered from these post-concussive symptoms for at least a year before the subject accident.
7At the time of the accident, the applicant had just finished her first year as an undergraduate at McMaster University in a neuroscience program. She was also working as a part-time swim instructor and lifeguard. After the accident, the applicant returned to school, but she eventually switched programs and subsequently was unable to complete university. She also returned to work a few months post-accident, but stopped working around March 2020. The respondent initially paid an IRB to the applicant, but discontinued IRBs as of March 1, 2021, relying on multidisciplinary insurer’s examination (“IE”) assessments. The applicant made two attempts to return to other employment in 2022, but was not successful.
Pre-104 week IRBs
8I find that the applicant is not entitled to IRBs from March 2, 2021 to June 7, 2021, being the remainder of the pre-104 week period.
9To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
Parties’ positions
10The applicant argued that she is entitled to pre-104 week IRBs. With respect to her pre-accident employment as a lifeguard and swim instructor, the applicant testified that this was a physically demanding job, and it required mental focus and attention. She maintained that she suffered a concussion as a result of the accident and as a result, she suffered from ongoing post-concussive symptoms. The applicant testified that the lights reflecting off the pool made her feel like she “was going to pass out” and that she suffered from focus issues. As a result, the applicant testified she did not feel like it would be safe to continue in the role, and that she “gave away” all her shifts. The applicant was unsure whether she was fired or she quit, but she believed she stopped working after October 2019.
11To support her claim of an accident-related concussion, the applicant relied on her own testimony, the clinical notes and records (“CNRs”) and reports of Dr. Basile, neurologist, who diagnosed her with post-concussive syndrome, consistent with a traumatic brain injury as a result of the accident. She further refers to the SPECT scan ordered by Dr. Basile on November 26, 2020 which revealed a pattern of perfusion that supported a previous traumatic brain injury. The applicant also relied on the diagnosis of Dr. Jha, neurologist, as well as the records of her treating clinic iScope Concussion and Pain Clinic.
12The respondent argued that the applicant is not entitled to pre-104 week IRBs. It relied on the s. 44 IE reports of Dr. Syed and Dr. Zabieliauskas who found that she did not suffer a substantial inability to perform the essential tasks of her employment. Rather, the respondent argued that any limitations were due to the applicant’s post-concussive symptoms stemming from her 2013 concussion. The respondent disputed that the applicant had sustained a concussion in the accident, relying on the paramedic and hospital reports from the day of the accident. The respondent further cited the CNRs of the applicant’s family physician, Dr. Mikhail, and the records from McMaster University, to argue that the applicant’s reported cognitive symptoms pre-dated the accident and stemmed from her 2013 concussion.
The applicant has not established entitlement to pre-104-week IRBs
13I find that the applicant has not established that she suffered a substantial inability to perform the essential tasks of her pre-accident employment.
14With respect to the essential tasks of the applicant’s role as a lifeguard and swim instructor, the applicant testified that this was a physically demanding job, which involved picking up children, and that it required mental focus and attention. The employment letter indicated that the applicant worked part time, between 4 to 25 hours per week.
15The applicant took a leave from work for a few months after the accident, but returned to work in September 2019 (once her cast was removed), requesting that she teach older children to avoid repetitive lifting. Dr. Mikhail also provided a letter stating that the applicant was able to return to work and perform all her job requirements, but should avoid repetitive lifting, and it was recommended that she teach older students. The applicant’s plastic surgeon, Dr. Robert Madronich, who was treating her right finger fracture, stated on September 20, 2019 that her fracture had fully healed. On February 12, 2020, Dr. Mikhail provided an OCF-3 stating that the applicant was able to return to work on modified duties with reduced hours and with an assistant to help with lifting.
16I find that the applicant’s testimony, that she was unable to continue in her job as a lifeguard and swim instructor due to her accident-related impairments, is not supported by her employment file or the medical record. The applicant testified that despite returning to work for a few months, she was unable to continue working and had been “giving away” all of her shifts. Her last recollection of working had been in October 2019, but she was unsure whether she had quit or if she was fired. However, this belief is not supported by the employment file, which reveals that the applicant worked her typical part-time hours until at least February 2020.
17The record of employment also shows that the applicant last worked on March 8, 2020. The respondent argues that this coincides with the COVID-19 pandemic and the subsequent closure of pools. Further, I agree with the respondent that in her application for Employment Insurance, the applicant stated that she stopped working in March 2020 due to a work shortage and that as of September 24, 2021, she was not looking for work, that the location was closed, and that she was waiting for her previous employer to call back. I find that this evidence supports the respondent’s position that the applicant did not stop working for accident-related reasons.
18Further, the respondent’s s. 44 assessors found that the applicant did not suffer a substantial inability to perform the essential tasks of her employment. In his s. 44 physiatry report dated February 9, 2021, Dr. Zabieliauskas noted that the applicant’s right-hand fracture had healed, and that there were no physical or functional limitations to the applicant returning to work as a part-time lifeguard and swim instructor. Similarly, the respondent’s s. 44 psychological assessor, Dr. Syed, found that while the applicant had been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood, these psychological difficulties were not at a level that would preclude the applicant from performing the essential tasks of her employment.
19With respect to the applicant’s testimony, namely, that her post-concussive symptoms (including her sensitivity to light and noise and a lack of focus) made it unsafe for her to work in her role, I find that the applicant has not established that these post-concussive symptoms were caused by the accident. I agree with the respondent that the paramedic and hospital records indicate that the applicant did not report hitting her head or losing consciousness in the accident. Although the applicant relies on the diagnosis and SPECT scan ordered by Dr. Basile, I agree with the respondent that Dr. Basile’s findings rely on the applicant’s self-report of hitting her head, and that the SPECT scan simply reveals that there was a prior traumatic brain injury, which could have been the 2013 concussion.
20Further, I am not persuaded by the applicant’s testimony that she was fully recovered from the 2013 concussion by the time of the accident. The applicant testified that she had no post-concussive symptoms in the year before the accident. However, the CNRs of Dr. Mikhail reveal that in February 2017, an MRI had been requested and the history was noted as – chronic dizziness, persistent post-concussion syndrome. In an October 11, 2018 CNR entry, the applicant attended for headache complaints and it was noted that she had a history of headaches for a long time after her concussion from a sports injury, that she had a history of vision issues, inability to focus, sharp pain, and sensitivity to light.
21The records of McMaster University also support a finding that the applicant was still suffering from post-concussive symptoms at the time of the accident. Although the applicant testified that she did not require any accommodations from McMaster University in the year before the accident, this is not supported by the university records. In a September 13, 2018 intake form, the applicant requested academic accommodations for an acquired brain injury in 2013. It was noted that the applicant found it hard to concentrate and focus, that her vision was sensitive, she had headaches and neck pain, and that this impairment would be ongoing “for the foreseeable future”. The applicant testified that she did not “remember that” request for accommodation. In May 2019, less than a month before the accident, the applicant made a request to reinstate accommodations for the spring term.
22Accordingly, I find that the applicant has not established that her post-concussive symptoms were caused by the subject accident. Given that the applicant’s argument in support of pre-104 week IRB entitlement centred on post-concussive symptoms, I find that the applicant has not met her onus to prove that she was substantially unable to perform the essential tasks of her pre-accident employment from March 2, 2021 to June 7, 2021 as a result of her accident-related impairments.
Post-104 week IRBs
23I find that the applicant is entitled to post-104 week IRBs from April 11, 2023 to date and ongoing.
24To receive payment for a post-104-week IRB under s. 6(2)(b) of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
Parties’ positions
25The applicant argued that her accident-related impairments, including her psychological conditions, cognitive impairments, traumatic brain injury and corresponding functional limitations, have led to a complete inability to work. She argued that although she “pushed herself” initially post-accident to try to retain a sense of normalcy, the CNRs of her treating physicians and her testimony at the hearing reveal that her level of functioning significantly decreased between 2021 to 2023. This culminated in two hospitalizations in 2024 for suicidal ideation. The applicant relied on the medical record including her April 2023 s. 25 CAT reports and her own testimony, to support this severe decline in function. The applicant further argued that even the respondent’s occupational therapy (“OT”) CAT assessor, Ms. Mara, found in April 2025 that she faced significant barriers to maintaining paid employment.
26The respondent disputed that there has been a significant deterioration in the applicant’s function, and argued that she has not met her onus under s. 6. It submitted that the applicant did not provide any vocational or expert evidence to support that she meets this test, as all of the applicant’s expert evidence related to the CAT Criterion 8 analysis, particularly the domain of adaptation. The respondent argued that the two tests are different, and that the fact that the applicant was found to have a marked impairment in the domain of adaptation, does not necessarily mean that the applicant suffers from a complete inability to engage in any employment or self-employment.
27The respondent further argued that the fact that the applicant had not established that she was entitled to a pre-104 week IRB means that she cannot meet the more stringent post-104 week test. Finally, the respondent argued that the applicant did not provide a new OCF-3 to support post-104 week entitlement until November 30, 2021, and as such she would not be entitled to IRBs until that point.
Implication of the applicant’s failure to establish entitlement to pre-104 week IRBs
28The respondent argued in closing submissions that since the applicant had failed to establish entitlement to pre-104 week IRBs, she cannot now establish entitlement on the more stringent post-104 week IRB test. This argument is supported by the recent Divisional Court decision of Paesano v. Coseco Insurance Co., 2025 ONSC 3245, which the parties addressed in their reconsideration submissions. The Divisional Court in Paesano upheld the Tribunal’s determination that in order to qualify for post-104 week IRBs, an insured must first apply for and establish entitlement to pre-104 week IRBs.
29While I am bound by, and agree with, the reasoning in Paesano, I do not find that this decision precludes a finding that the applicant is entitled to post-104 IRBs in this case, even if I have found that she is not entitled to the remaining period of pre-104 week IRBs. The applicant had applied for, and received IRBs for a period of time during the pre-104 week period, i.e. up until March 1, 2021, when the respondent discontinued IRB payments on the basis of its multi-disciplinary IE reports. Therefore, the applicant had established entitlement to pre-104 week IRBs, although for only a limited period of time.
30I acknowledge, as will be addressed below, that the applicant has not established entitlement to post-104 IRBs until April 11, 2023, which is more than two years after the pre-104 week IRBs were terminated. However, as will be further addressed below, the applicant has led compelling medical evidence to establish a significant deterioration in her function and accident-related psychological injuries between 2021 and 2023. This culminated in her being found to be catastrophically impaired under Criterion 8 on April 11, 2023, and in 2024, being hospitalized twice for suicidal ideation.
31I accept that Paesano set out the stringent post-104 week entitlement test for an “ongoing entitlement” to IRBs. However, the evidence summarized below establishes a severe deterioration both in accident-related psychological injuries and functionality affecting the prospect of employment such that, in my view, the more stringent test for post-104 week IRB entitlement was not met until April 11, 2023. Given the consumer protection mandate of the Schedule, I do not interpret Paesano to mean that there cannot be any gap in IRB entitlement in order to establish entitlement to post-104 week IRBs. This reasoning is particularly apparent in a case such as this one, where there is compelling medical evidence of a significant deterioration of accident-related injuries.
Deterioration in applicant’s condition leading to complete inability to work
32I find that the applicant has established that following the accident from 2021 to 2023, she suffered a deterioration in her accident-related psychological conditions and function, which ultimately rendered her completely unable to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
33To establish her claim, the applicant relied on the medical record, including her 2023 CAT assessment reports, the respondent’s 2025 CAT reports; the hospital records relating to her 2024 hospitalizations; her testimony, along with the testimony of her CAT assessors Dr. Shahzad Shahmalak and Mr. Varun Madan; the testimony of her treating psychiatrist Dr. Paramsothy, and the testimony and report of the respondent’s psychiatric CAT assessor Dr. Velan Sivasubramanian.
34I find that the reports and testimony of Dr. Shahmalak, Mr. Madan, and Dr. Sivasubramanian establish both the severity of the applicant’s accident-related psychological impairments and her functional decline from 2019 to 2023.
35The applicant was diagnosed by her psychiatric CAT assessor Dr. Shahmalak in his April 8, 2023 report with Somatic Symptom Disorder with predominant pain; Specific Phobia, situational type (vehicular); Major Depressive Disorder; moderate to severe and Post-Traumatic Stress Disorder. The respondent’s CAT assessor Dr. Sivasubramanian in his report dated April 9, 2025 generally agreed with Dr. Shahmalak’s diagnoses. The applicant did not have any pre-accident mental health history.
36Dr. Shahmalak testified as to the applicant’s deterioration of symptoms that he had seen as part of his March 2023 assessment. He noted the strong link between pain complaints and mental health, testifying that the applicant had been reporting that her pain was progressively getting worse. He stated that it was not uncommon, in the initial stages, that people are hopeful that they will improve, but over time when there is no improvement people get worse because they are feeling more and more hopeless. Dr. Shahmalak testified that when he saw the applicant in March 2023, she was progressively more depressed. In his testimony Dr. Shahmalak conceded that the Criterion 8 domain of adaptation is “somewhat distinct from employability”, which has to do with skills, education and experience. However, he opined that when he saw the applicant he did not see how she could be able to sustain any employment without either treatment or intervention.
37The applicant’s OT CAT assessor Mr. Madan testified that as part of his March 7, 2023 assessment, the applicant displayed significant irritation, frustration and declined to participate in some tasks. He stated that he believed that the applicant was giving good effort, but that her frustration kept building through the assessment, culminating in her tearing up her client sheet. Mr. Madan noted that this was not uncommon when a client’s injuries and pain interfere with their ability to cope, they are unable to deal with stressors, and that he could see the applicant getting deregulated or decompensating. This was supported by the applicant’s testimony where she discussed her period of decline post-accident, describing that she felt “betrayed” by her body and her brain.
38I find that the report and testimony of the respondent’s psychiatric CAT assessor further supports the applicant’s evidence with respect to her functional limitations. In his April 9, 2025 report Dr. Sivasubramanian referred to the s. 44 OT assessments of Ms. Shahla Kara, particularly in the domain of adaptation. He noted Ms. Kara’s reports that the applicant’s emotional decompensation was closely linked to her poor stress tolerance, which affected her ability to engage in tasks, and that even simple tasks felt insurmountable. Ms. Kara noted in her assessment that the applicant faced significant barriers to completing her education and maintaining paid employment, and that her emotional instability exacerbates her ability to function in a work setting. She stated that the applicant’s cognitive impairments, physical pain and emotional challenges create a cycle of stress that undermines the applicant’s ability to be successful in both academic and employment environments.
39In terms of the applicant’s level of functioning, I find that the evidence further establishes that although at the time of the accident the applicant may have been suffering from post-concussive symptoms stemming from her 2013 concussion, she was still functioning at a high level. The applicant had completed her first year in a neuroscience program at McMaster University, taking a full courseload and obtaining a GPA of 9.8. She was also employed as a part-time lifeguard and swim instructor.
40Although the respondent argued that the applicant’s functioning was unchanged post-accident and that she continued to receive high marks at McMaster University, the applicant testified that she dropped courses, eventually dropping out of the neuroscience program, and began to take courses in music therapy and psychology which were easier and therapeutic. I accept the applicant’s testimony on this point and I find that this is supported by the McMaster transcripts, which reveal a full courseload in the neuroscience program for the 2018 year, with the applicant withdrawing from a number of courses in 2019 and 2020. In 2021, the applicant appeared to switch to psychology and music courses which continued from 2021 to 2023. However, the applicant did not return to school after spring 2023.
41I further do not agree with the respondent that because the applicant received academic accommodations pre-accident, there has been no change in her capabilities post-accident. The McMaster records reveal that while the applicant had academic accommodations in the fall of 2018 and spring of 2019, they appeared to be limited to additional time or a separate writing room. However, the request for accommodations greatly increased by 2023, culminating in the applicant not returning to school after the spring 2023 semester. Accordingly, I find that the applicant’s academic records support a significant functional decline in her academics from the accident to spring 2023.
42The evidence also establishes that in 2022 the applicant attempted, and failed, to return to work in customer service roles with Bar Burrito and The Mist. I further am not persuaded by the respondent’s argument that the applicant’s inability to return to employment in 2022 was not any different from her pre-accident employment presentation. The applicant testified and reported to numerous assessors that in 2022 she twice attempted to go back to work, without success. She testified that, at Bar Burrito, she could not make it through training, as she was in pain and got overwhelmed and “freaked out”. At The Mist, the applicant reported that she only lasted a few weeks since she was late or skipped shifts due to not feeling well, that it was hard to stand and that she had trouble dealing with customers.
43The respondent argued in closing submissions that this was “no different” than her pre-accident presentation, since pre-accident the applicant had been fired from Shoppers Drug Mart. However, it appears that the applicant had been employed at Shoppers Drug Mart for 2.5 years before she was apparently fired for accidentally throwing something away that had belonged to a customer. In my view, that is significantly different from the applicant’s work experience in 2022.
44With respect to the type of employment that the applicant would be reasonably suited for by education, training or experience, neither party had provided vocational evidence, or expressly addressed the issue of alternative, suitable employment. The evidence and testimony at the hearing established that the applicant completed high school, although she did not complete her university degree. Her previous employment experience had been limited to lifeguarding and customer service. This supports a finding that the applicant would be reasonably suited for an entry level position that requires only a high school education. However, regardless of the type of employment that the applicant may be suited for, I find that the applicant’s psychological conditions and functional deterioration are so significant, that from an employment perspective, no reasonable employment could be completed.
45Accordingly, I find that the medical evidence and testimony supports the applicant’s position that as a result of her accident-related psychological conditions, she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
Period of Entitlement to IRBs from April 11, 2023 to date and ongoing
46I find that the applicant has established that she is entitled to IRBs from April 11, 2023, to date and ongoing.
47April 11, 2023 is the date of the applicant’s CAT report and OCF-19, which contained the psychiatric assessment report prepared by Dr. Shahmalak, and the OT report of Mr. Madan. I find that these CAT reports are persuasive evidence of the applicant’s significant accident-related psychological conditions, her deterioration post-accident and her difficulties with emotional regulation and frustration. These reports further detail the applicant’s limitations relating to employment. April 2023 also coincides with the period that the applicant significantly struggled at university, requesting increasing academic accommodations, culminating in her not returning to school after the spring 2023 semester. I further note that by April 2023 the applicant had already made two unsuccessful attempts to return to work (in 2022), and in one of those attempts, she was unable to even complete the training session. I find that this evidence supports that the applicant met the test for post-104 week entitlement to IRBs as of April 11, 2023.
48I further find that the applicant has established that this complete inability to sustain any employment is ongoing. The applicant has led evidence to establish that her severe mental health issues continued and deteriorated past 2023. In 2024, she was twice admitted to hospital for a psychiatric stay for suicidal ideation. Once for an overnight stay on July 20, 2024 for a suspected overdose attempt. The second time was for a two-week stay in the fall of 2024.
49The applicant’s treating psychiatrist, Dr. Paramsothy, testified at the hearing. He confirmed that the applicant had been hospitalized for a two week period from September 26, 2024 to October 8, 2024 due to thoughts of depression, and that the applicant could not function. He further testified that as a result of the applicant’s condition, she is unable to sustain any meaningful work or study.
50With respect to the applicant’s hospital stays, the respondent raises the issue of causation. In closing submissions, the respondent argued that there were a number of non accident-related stressors that led to the applicant’s 2024 hospitalizations. These included: that the applicant was upset about not receiving a settlement from the insurance company; that she struggled with retaining new counsel; that she was upset about a flood in her basement; she was upset about a comment from her boyfriend; and that the applicant had reported being previously assaulted years earlier. Although the respondent conceded that it did not cross-examine the applicant on these stressors given her mental state, it argued that these factors were all clearly relevant as to the cause of the applicant’s ongoing deterioration and hospitalizations.
51I am not persuaded by the respondent’s argument. From my review of the hospital records, the applicant and her mother did refer to the additional stressors noted by the respondent. However, the records clearly support that the primary cause of the applicant’s admission related to her ongoing accident-related impairments. While the applicant and her mother cited the additional stressors in a July 2024 interview, the applicant’s mother noted that the applicant cried daily due to pain, constantly expressed a desire to end her life, felt hopeless about being able to return to work or school or have any form of life and had lost all hope for the future.
52The respondent also argued that the evidence and testimony of Dr. Paramsothy does not have probative value. The respondent argued that Dr. Parmasothy was not aware of the applicant’s complete medical record, particularly her pre-accident 2013 concussion. I infer that the respondent is arguing that a number of the cognitive symptoms the applicant was reporting at the time of her hospitalization were due to her pre-accident concussion, and not due to her accident-related psychological impairments.
53I am not persuaded by the respondent’s argument. The respondent’s own psychiatric CAT assessor Dr. Sivasubramanian was aware of the applicant’s pre-accident concussion, and in his testimony, he questioned whether the applicant had sustained a traumatic brain injury in the accident, noting that the applicant had been unsure as to whether she had hit her head. However, he further testified that the applicant’s ongoing symptoms, such as her physical pain, headaches and possible post-concussive symptoms, were amplified by her Somatic Symptom Disorder. Even being aware of the applicant’s prior concussion, Dr. Sivasubramanian still agreed with Dr. Shahmalak’s diagnoses of Somatic Symptom Disorder; Major Depressive Disorder, PTSD, and Specific Phobia. In my view, this supports a finding that, even if some of the applicant’s reported symptoms at the time of her hospitalization could be attributed to the post-concussive symptoms from her 2013 concussion, her accident-related psychological diagnoses worsened these symptoms to the point that hospitalization was required.
54I further note that Dr. Sivasubramanian testified that, with respect to the applicant’s deterioration, there was no reason or “causality other than the motor vehicle accident”. In his 2025 CAT assessment report, Dr. Sivasubramanian indicated that he had reviewed the records with respect to the 2024 hospitalizations and as such, he would have been aware of the additional stressors. However, he testified that while “there have been a few other losses, but generally speaking, the main cause of her presentation appears to be injuries sustained in her motor vehicle accident, and so there has been some change in her symptom profile”.
55Accordingly, I find that the applicant has established that as a result of the accident, she suffers from severe, ongoing psychological injuries that have rendered her completely unable to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
56I find that the applicant is entitled to IRBs from April 11, 2023 to date and ongoing.
Failure to lead expert or vocational evidence in support of s. 6 entitlement test
57The respondent argued in closing submissions that the applicant had failed to address the s. 6(2)(b) test for entitlement to post-104 week IRBs or lead evidence of a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. The respondent cited Traders General Insurance Company v. Rumball, 2025 ONCA 656 to note the stringent post-104 week test, as well as Gordan v. Certas Direct, 2025 CanLII 15990 (ONLAT) where the Tribunal had noted the applicant’s failure to provide an expert opinion on the complete inability test. The respondent argued that the applicant’s evidence solely focused on having a marked impairment in the domain of adaptation, which is a different test than that for entitlement to post-104 week IRBs.
58The applicant conceded that the test to establish a marked impairment in the domain of adaptation is a different test than that for entitlement to post-104 week IRBs, and that she did not provide opinion evidence on the complete inability test. However, the applicant argued that the respondent similarly did not provide an expert opinion on the post-104 week test or lead vocational evidence, and instead, chose to rely on outdated pre-104 week assessments from 2020 and 2021, despite evidence of her significant deterioration. The applicant further argued that the medical evidence clearly supported a finding that by 2023, she was no longer functional. She cited Dinglasan v. TD General Insurance Company, 2024 CanLII 23465 (ON LAT) and Bercal v. Aviva Insurance Company, 2023 CanLII 58513 (ON LAT) to argue that opinion or vocational evidence is not always required in order to make a determination on IRB entitlement.
59I find the fact that the applicant did not lead vocational or opinion evidence on post-104 week entitlement, is not fatal to her claim. I agree with the reasoning in Bercal, that the test for entitlement to IRBs is a legal test, not a medical question, and that an expert opinion is not necessarily required. In Bercal, the Tribunal considered both pre- and post-104 week IRBs, and found that the applicant’s pain had been exacerbated by the accident to the point that he could no longer work. I similarly find that in the present case, the applicant has provided extensive evidence of her severe psychological conditions, emotional decompensation and dysregulation, poor stress tolerance and inability to complete simple tasks. She has further established that these issues impede her ability to find and retain any employment.
60I agree with the respondent that the Court of Appeal in Traders v. Rumbal sets out the stringent post-104 week test for entitlement. However, the Court further noted that an evidence-based, contextual analysis must take into account the particular circumstances of the insured. While specific vocational or expert evidence was not provided at the hearing, given the severity of the applicant’s psychological impairments and level of function, I am persuaded that the applicant suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
61At the hearing, there was no dispute noted by the parties regarding IRB quantum, which was identified in the Case Conference Report and Order as being $226.53 per week.
Interest
62The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
63I find that:
i. The applicant is not entitled to an IRB from March 2, 2021 to April 10 2023; and
ii. The applicant is entitled to an IRB in the amount of $226.53 per week from April 11, 2023 to date and ongoing, plus interest.
Released: April 20, 2026
__________________________
Ulana Pahuta
Adjudicator