Licence Appeal Tribunal File Number: 25-005835/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:
Hewin Green
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Paul Sykes, Counsel
Court Reporters:
Justice Ayala
Greg Vaughan
HEARD by Videoconference:
February 23, 24, 25, 26 and 27, 2026
OVERVIEW
1Hewin Green (the “applicant”) was involved in an automobile accident on December 29, 2017, 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 Wawanesa Mutual Insurance Company (the “respondent”) 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?
ii. Is the applicant entitled to $8,610.50 ($16,381.50 less $7,771.00 approved) for catastrophic impairment assessments, proposed by Critical Therapy Trauma, in a treatment plan/OCF-18 (“plan”) submitted on November 20, 2023, and denied on December 18, 2023?
iii. Is the applicant entitled to $1,000.00 ($5,200.00 less $4,200.00 approved) for Occupational Therapy, In-home and Situational Assessments, proposed by Innovative Occupational Therapy Inc., in a plan submitted on November 21, 2023, and denied on January 10, 2024?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not established that he sustained a catastrophic impairment as defined by the Schedule under Criterion 8.
4The applicant is not entitled to the unapproved balances of the plans in dispute, interest or an award.
5The application is dismissed.
ANALYSIS
Background
6On December 29, 2017, the applicant was the driver of a vehicle which was t-boned/struck on the passenger side by another vehicle at an intersection where the applicant was attempting to make a left turn. The other vehicle lost control due to bad weather conditions. Airbags did not deploy, and he did not hit his head or lose consciousness. The applicant felt pain in his head, neck, shoulders and back following the accident. He was examined at the scene by the attending paramedic but declined attending the local hospital or seeking immediate medical attention.
7The applicant visited a walk-in clinic the following day with pain symptoms. He was prescribed medication and subsequently consulted his family doctor who recommended physiotherapy.
8While initially treated for soft tissue injuries, the applicant first reported psychological complaints to his family doctor in April 2021, more than three years post-accident.
9The applicant reported in the Application for Accident Benefits (OCF-1) dated March 6, 2018, that he was retired at the time of the accident. Prior to retirement, he previously worked as a self-employed painter.
10It is undisputed that the applicant suffers from a number of significant health conditions that are unrelated to the accident, including complications of poorly controlled diabetes which predates the accident, peripheral neuropathy, kidney failure requiring dialysis three times a week, complications relating to his eyes associated with diabetes, and age-consistent osteoarthritis and degenerative changes observed prior to the accident. Subsequent to the assessments that are before the Tribunal, the applicant also had his right leg amputated in March 2025 due to health conditions unrelated to the accident.
11In the January 29, 2025 clinical notes and records (“CNRs”) of the applicant’s family doctor, Dr. Judith Todd, she notes that the applicant’s main reported troubles related to diabetes, kidney failure and dialysis, and peripheral neuropathy.
The applicant has not sustained a catastrophic impairment under Criterion 8
12I find the applicant has not established that he has sustained a catastrophic impairment as a result of the accident for the reasons that follow.
13The applicant seeks a catastrophic (“CAT”) impairment determination under s. 3.1(1)8 of the Schedule, referred to as Criterion 8. The applicant bears the burden of proof on a balance of probabilities standard.
14In order to meet the threshold for CAT status under Criterion 8, an individual must have sustained at least three marked (class 4) impairments or one extreme (class 5) impairment out of the four spheres of functioning 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’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “Guides”).
15Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four areas or “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.
16The four spheres of functioning, classes of impairment and rating criteria set out in the Guides are 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)
17The parties’ catastrophic assessors gave the following ratings:
Sphere
Applicant’s assessors
Respondent’s assessors
Activities of Daily Living
Class 4
Class 3
Social Functioning
Class 4
Class 3
Concentration, Persistence, and Pace
Class 4
Class 4
Adaptation
Class 4
Class 4
18To be satisfied that the applicant meets the definition of CAT impairment, he must demonstrate that: (1) he has a mental/behavioural disorder; (2) that this mental/behavioural disorder is a result of the subject motor vehicle accident; and (3) that the impairments resulting from this mental/behavioural disorder rise to the level of one extreme impairment or marked impairments in three out of four of the domains of functioning. Neither party argued that the applicant suffers from an extreme impairment. Therefore, in order to be found to have a CAT impairment, the applicant must show that he suffers from a marked impairment in three of the four spheres of functioning.
19The applicant submits that he sustained a CAT impairment under Criterion 8. The applicant relies on the assessments completed by Dr. Shahzad Shahmalak, psychiatrist, and Ms. Lily Wainer, occupational therapist (“OT”). In Dr. Shahmalak’s s. 25 CAT psychiatry assessment report dated July 30, 2024, he found the applicant to have accident-related diagnoses of Somatic Symptom Disorder, with predominant pain, persistent; Major Depressive Disorder, with anxious distress; and Post-Traumatic Stress Disorder (“PTSD”). Dr. Shahmalak assessed the applicant on February 29, 2024 and rated him with a marked impairment under all four spheres of functioning.
20The respondent relies on the assessments completed by Dr. Natasha Williams, psychologist, and Mr. Rodney Pritchell, OT, included in the CAT insurer’s examination (“IE”) integrated assessment report dated July 28, 2023. Dr. Williams assessed the applicant on March 16, 2023, and diagnosed him with Somatic Symptom Disorder, with predominant pain; and Major Depressive Disorder. Dr. Williams rated the applicant with a marked impairment in the areas of concentration, persistence and pace, and adaptation; and a moderate impairment in the areas of activities of daily living, and social functioning.
21Both of the parties’ assessors found that the applicant sustained a marked impairment in the two areas of concentration, persistence and pace, and adaptation. As these ratings are not in dispute, it follows that the applicant must demonstrate that he sustained a marked impairment in at least one of the spheres of activities of daily living or social functioning, in order to meet the definition of CAT under Criterion 8.
22Given the commonality of diagnoses of the applicant and respondent’s assessors, there is no dispute that the applicant suffers from a mental or behavioural disorder as a result of the accident. However, the respondent raises the issue of causation in its submissions. Specifically, the respondent argues that the applicant’s assessors did not appropriately consider the applicant’s post-accident history of unrelated health issues in assessing the level of his accident-related impairments due to a mental and behavioural disorder.
23For the following reasons, the applicant has not satisfied me that he meets the CAT threshold under Criterion 8. This is because I find he does not have a marked impairment in the areas of activities of daily living or social functioning. Given my finding that the applicant has not met the test for CAT, there is no need to address the arguments raised by the respondent in relation to the assessment of the applicant’s unrelated health issues.
Activities of Daily Living (“ADL”)
24I find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of ADL.
25The Guides specify that activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. 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.
26Assessments pursuant to Criterion 8 should exclude consideration of any physical impairments and be based solely on mental and behavioural disorders.
27The applicant testified that prior to the accident, he was in a living arrangement where he had roommates and shared responsibility for household chores, such as cooking, cleaning and groceries. He enjoyed cooking healthy meals and participating in leisure activities, such as playing soccer, dancing and playing dominoes with friends. His adult daughter testified that the applicant was self-sufficient before the accident, and that he was always out of the home doing different activities.
28Post-accident, for reasons unrelated to the accident, the applicant moved from Toronto to Vaughan, and is living alone in an apartment. The applicant reported to Dr. Williams in 2023 that he has resumed his pre-accident personal care activities but requires additional time. He admitted to Dr. Williams a reduced motivation in personal care.
29I find the evidence shows the applicant has useful function and is capable of initiating, without supervision or direction, in important areas of ADL, such as self-care, personal hygiene, communication and ambulation. Both the s. 25 and IE assessments took place more than five years post-accident. During this time, the applicant was living independently, and managing his personal care with little or no formal assistance. His family and friends visit every few days to check in on him, bring prepared food and help with some of the cleaning, including the kitchen and dishes. He sometimes forgets to take his medication or pay bills.
30Both Dr. Shahmalak and Dr. Williams recognized that the applicant continues to be able to prepare simple meals, like a sandwich or soup, and is able to use the microwave to heat up meals that may be brought to him. While he bathes independently, he no longer does so daily, explaining to Dr. Williams that he can “skip two to three days before I shower.” The applicant reports reduced motivation in engaging in personal care activities, and chooses to wear looser fitting, functional clothing over getting dressed up to socialize. He testified that he continues to go out sometimes on weekends with friends or family, and if it is somewhere nearby he may go out by himself. In the July 29, 2022 IE OT in-home assessment report of Mr. Robert Campos, the applicant reported that he performs a home exercise program three times per week independently, including stretching and resisting exercises. I find that this indicates a level of independence in ADLs.
31I find the applicant is able to access the community for medical appointments as needed. The applicant testified that he is able to make calls to schedule appointments, such as an appointment with his doctor. His daughter confirmed in her testimony that the applicant is able to attend his appointments without being accompanied by the family. Dr. Shahmalak reported that the applicant can use his phone and computer independently, as well as handle his bill payments independently.
32The applicant continued to drive following the accident through to the time of his leg amputation in 2025, nearly eight years post-accident. He reported to Dr. Shahmalak that he drives on good days and will take public transportation on bad days. In a functional driving assessment form dated July 31, 2025, the applicant indicated that he typically drives daily and can access all roadways and drive in all weather conditions. He also indicated in the form that cognitively he has no concerns, he lives alone and is independent with his ADLs. In his testimony, the applicant confirmed that he does not drive anymore, due to the amputation which, as noted above, is not accident-related.
33Overall, I find the evidence shows the applicant has useful function and is capable of initiating without supervision or direction in some important areas of ADL, such as self-care, personal hygiene, communication and ambulation. His psychological disorders have some impact on recreational activities, sleep and social activities. Nonetheless, engaging in activities at a reduced level compared to pre-accident still demonstrates useful functioning.
34Accordingly, I find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of ADL.
Social Functioning
35I find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of social functioning.
36The Guides specify that the factors to consider under social functioning are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It 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, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities are seen as strengths in social functioning.
37The applicant testified that prior to the accident he was happy, outgoing and active with friends and family. As noted, he enjoyed playing soccer, dancing and playing dominoes with friends. He testified that he would meet up with people at community centres and social clubs.
38Post-accident, the applicant testified that he does not go out anymore. He indicates that his friendships have been affected and that he feels irritated and is quick to anger. He broke up with his girlfriend because she wanted to be able to go out and socialize and did not want to be with a “sick man”.
39Regarding family, the applicant testified that he has maintained a positive and loving relationship with his five adult children, as well as his three grandchildren. He indicates he continues to see them as often as before the accident. When asked if he likes spending time with them, the applicant responded: “oh yes, that's joy, they let me smile all the time.”
40The applicant’s daughter testified that they have maintained the same frequency in phone calls, and that the applicant initiates calls to his children around the same number of times that they call him. She indicated that the calls are often to check in with her father. She noted that sometimes he gets irritated or upset during the calls but he remains calm and will show his frustration by shutting down.
41Regarding his friendships, the applicant testified that during COVID, activities at his social clubs slowed down, and some of his friends passed away. As well, he lost a brother due to COVID. The applicant’s daughter reported to Ms. Wainer that the applicant felt more isolated and depressed after his brother passed away. The applicant also confirmed in his testimony this negative impact on him from his brother’s passing. He acknowledged that he continues to maintain friendships, and speaks to people occasionally when in the mood. He indicated he talks to friends about school days, their childhood, and politics from back home. He also continues to sometimes go to church, or have prayer sessions at his apartment.
42Further, throughout his testimony, the applicant presented as friendly and polite. He acted appropriately during his testimony and answered questions, while generally maintaining his concentration. This is particularly commendable given the significant non-accident related health issues faced by the applicant.
43Both Dr. Williams and Dr. Shahmalak found evidence of impairment in affect regulation that would impact initiating and maintaining different social relationships. While the applicant reports to the assessors that he is socially isolated, I find this underestimates the meaningful social interactions that he continues to have, and undervalues the effort he has put into actively maintaining important relationships post-accident. For these reasons, I prefer the opinion of Dr. Williams that the applicant presents with a moderate impairment in social functioning.Capacity to interact appropriately and communicate effectively with other individuals, as displayed by the applicant, are seen as strengths in social functioning in the Guides.
44Accordingly, for the above-noted reasons, I find the applicant has not met his onus to establish that he sustained a marked impairment under the domain of social functioning.
CAT Criterion 8 Conclusion
45As the applicant has not established that he has a marked impairment in either of the areas of activities of daily life or social functioning, the applicant cannot meet the requirement of having sustained at least three marked impairments in order to be designated catastrophically impaired. Although I acknowledge that the applicant sustained impairments as a result of the accident which have had a negative impact on his life, this alone does not satisfy the threshold under Criterion 8.
46Accordingly, for the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he sustained a catastrophic impairment under Criterion 8 in accordance with the Schedule.
The applicant is not entitled to the unapproved balances for the plans for assessments
47To receive payment for a plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
48Section 25(5) of the Schedule stipulates that the insurer shall not pay more than $2,000.00 plus applicable HST in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it.
49I find the applicant has not proven on a balance of probabilities that the unapproved balances of the plans for s. 25 CAT assessments are reasonable and necessary.
50The plan submitted November 20, 2023 was prepared by Dr. Sangita Sharma, and sought funding of $8,610.50 ($16,381.50 less $7,771.00 approved) for three CAT assessments. HST of $1,631.50 is included as part of the cost of this plan.
51The explanation of benefits (“EOB”) dated December 18, 2023 indicates that the three assessments were each partially approved up to the s. 25(5) funding limit of $2,000.00.
52The plan submitted November 21, 2023 was prepared by Ms. Sheila Don, OT, and sought funding of $1,000.00 ($5,200.00 less $4,200.00 approved) for two CAT OT assessments. HST is not listed as part of the cost of this plan.
53The EOB dated January 10, 2024 indicates that the two s. 25 CAT OT assessments were each partially approved up to the s. 25(5) funding limit of $2,000.00, as well as $200 for OCF-18 completion. The denied amount was for file review.
54The applicant’s closing submissions regarding the plans in dispute are limited to claiming entitlement to HST on the approved assessments. The applicant argues the funding limit for each assessment in s.25(5)(a) is $2,000.00 plus HST. He submits that the respondent failed to include HST on the approved s. 25 CAT assessments, while paying HST on the IE CAT assessments.
55No submission was made by the applicant that the unapproved balances for the plans are reasonable and necessary. Other than his claim for HST, the applicant did not discuss what the unapproved balance related to or point to evidence to support entitlement.
56The respondent counters that the plans have been appropriately approved up to the prescribed monetary limit in s. 25(5). The respondent argues that the unapproved balances of the plans are for integral components of the approved plans and thus duplicative. The respondent notes that the monetary limit for each approved plan is $2,000.00 plus HST. The respondent did not otherwise address the applicant’s claim for HST.
57I find that both parties correctly agree that the monetary limit in s. 25(5)(a) is subject to HST. The applicant has not otherwise provided any submissions or directed me to any evidence to support entitlement to the unapproved balances for the plans.
58Further, the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“PSG”) stipulates that where the CRA considers HST to be applicable to any of the services or fees listed in the PSG, then HST is payable by an insurer in addition to the fees set out in the PSG. The PSG refers directly to s. 25(5)(a) of the Schedule and the $2,000.00 maximum fee for an assessment.
59Despite such agreement on interpretation that the monetary limits for assessments are subject to HST, I was not directed to evidence that HST was claimed as part of the cost of the approved s. 25 assessments. The applicant refers me to the OCF-21 dated April 26, 2024 to support that the s. 25 assessments were incurred with HST and billed to the respondent. However, on review I find the OCF-21 is limited to the two CAT OT assessments approved in the plan dated November 21, 2023, and not the other three s. 25 assessments approved in the plan dated November 20, 2023. Further, I note that the service chart in the OCF-21 does not check the box for tax or include HST in the cost amount. This is consistent with the fact that, at Part 12 of the November 21, 2023 plan itself, “Tax (if applicable)” is indicated at $0.00. While HST is included with the November 20, 2023 plan, I was not directed to evidence of what components of this partially approved plan HST was claimed.
60Accordingly, I find on a balance of probabilities that the applicant has not met his onus of demonstrating that the unapproved balances for the plans are reasonable and necessary.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
62The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
63The applicant did not make any submissions on granting an award. The respondent submits that the applicant did not provide it with any particulars of the award claim or lead any evidence to support such claim.
64As I have no evidence that the respondent unreasonably withheld or delayed the payment of benefits, no award is payable.
ORDER
65For the reasons outlined above, I find that:
i. The applicant has not established that he sustained a catastrophic impairment as defined by the Schedule under Criterion 8;
ii. The applicant is not entitled to the unapproved balances of the plans in dispute, interest or an award; and
iii. The application is dismissed.
Released: April 22, 2026
Henry Harris
Vice-Chair