Citation: Fadel v. The Personal Insurance Company, 2026 ONLAT 25-004167/AABS

Licence Appeal Tribunal File Number: 25-004167/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:

Therese Fadel

Applicant

And

The Personal Insurance Company

Respondent

DECISION

VICE-CHAIR:

Neil Levine

APPEARANCES:

For the Applicant:

Hamish Mills-McEwan, Counsel

Stanford Cummings, Counsel

For the Respondent:

Rebecca Pepper, Counsel

Norma Barron, Counsel

Reporter:

Prashanth Thambipillai

HEARD: by Videoconference

February 9-13, 2026

OVERVIEW

1Therese Fadel, the applicant, was involved in an automobile accident on July 16, 2022 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, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

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

3The applicant informed the Tribunal at the beginning of the hearing that all the other issues in dispute as noted in the Case Conference Report and Order of July 30, 2025 were withdrawn.

RESULT

4The applicant is catastrophically impaired as defined by the Schedule.

PROCEDURAL ISSUES

Dispute about the translation of documents

5At the beginning of the hearing, the respondent sought to introduce translated evidence of medical records from psychotherapist Ms. Anick Labonté that was provided to the Tribunal and the applicant

6The applicant requested that this information be excluded from evidence because that the translation was provided from the respondent to the applicant on the Friday preceding the hearing, contrary to deadlines set down in the Case Conference Report and Order of July 30, 2025. This French to English translation lacked a sworn affidavit on its certification, and did not include information on whether the translator was verified. The applicant submitted that these translations should not be admitted into evidence or used because there was no way to know if it was a true and accurate translation of these medical records.

7The respondent said that these records were from EMDR therapy with psychotherapist Anick Labonté that occurred after the accident. The therapy was in French, and the French version was provided to the respondent. The respondent argued that this French-to-English translation was relevant, and it was an oversight on the respondent’s part not to have them translated and provided earlier.

8These translated documents shall not be admitted as evidence at this hearing, though the originals in French may be referred to. There is no way of knowing or verifying at this late stage whether this translation is accurate and was made by a certified translator. Nevertheless, the respondent continues to have the right to cross-examine this witness based on the witness’s records.

Dispute about expert witness

9The applicant objected to the inclusion of an expert witness, Dr. Kim Payne, a neuropsychologist, and her s. 44 report. The applicant argued that this witness had been retained to give an opinion on Criterion 6, while this hearing was about a Criterion 8 catastrophic determination. The applicant argued that it was an error of law to consider this expert’s opinion, that it was not relevant, was misleading, and was biased. The applicant further argued that the neuropsychological tests she gave the applicant were not completed and therefore give a biased view of the applicant.

10The respondent argued that the applicant had mischaracterized this witness, and her evidence and report was an essential and relevant part of a multidisciplinary assessment, notwithstanding that this dispute is over a catastrophic determination based on Criterion 8.

11The applicant has not established a solid basis on which to exclude this evidence. Although the applicant argues that some tests were not completed means that their product was skewed, that (if true) doesn’t make this evidence irrelevant and therefore inadmissible. At best, if proven that the tests were incomplete would impact the weight to be assigned to the witness’s evidence. However, while I accept the testimony and evidence of Dr. Payne I will assign the evidence from this witness significantly less weight than if the expert witness was offering a professional opinion about the dispute at issue, namely, Criterion 8.

ANALYSIS

The applicant meets the criteria for catastrophic impairment under Criterion 8

12The applicant was injured in a motor vehicle accident on July 16, 2022. She applied to the respondent on November 28, 2024 for a determination that her accident-related impairments met the definition of a catastrophic impairment under the Schedule. The current dispute involves whether she sustained a CAT impairment pursuant to s.3.1(1) (8) of the Schedule (known as Criterion 8).

13The test to determine whether the applicant has sustained a CAT impairment is a legal test and not a medical one. For example, see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paragraphs 29-30.

14This is a complicated matter, given that the applicant had a significant pre-accident medical history in addition to a prior accident on April 19, 2018 for which she withdrew a catastrophic determination dispute with a different insurer.

15The applicant submits that despite her prior injury and medical issues this July 16, 2022 accident was the precipitating factor in the injuries that caused her to be catastrophically impaired.

16The respondent submits that the applicant was not catastrophically impaired after this subject accident according to the Schedule and her medical records. She had substantial impairments and restrictions prior to this accident as a result of a previous accident in addition to childhood trauma and sexual abuse, and it argues that there were no significant new impairments post-accident that would cause her to be catastrophically impaired. The respondent submits that the applicant’s psychiatrists and assessors made assumptions on baseline functioning absent documented information.

Criterion 8

17The issue before me is whether the applicant has demonstrated, on a balance of probabilities, that as a result of the 2022 motor vehicle accident she sustained an accident-related catastrophic impairment defined as catastrophic by the Schedule.

18Based on the evidence and testimony before me, the applicant has demonstrated that she meets this test.

19Criterion 8 determinations under the Schedule employ the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, Chapter 14, 1993 (AMA Guides). The AMA Guides set out four functional domains: (1) activities of daily living (“ADL”); (2) social functioning; (3) concentration, persistence and pace (“CPP”); and (4) adaptation (deterioration or decomposition in work or work-like settings).

20The AMA Guides refer to five levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment. The levels are explained in the Table below:

Area of Functioning:	Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
Description:	No impairment noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning.

21An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of a mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains. The onus is on the applicant to demonstrate this on a balance of probabilities.

CRITERION 8

Area of Functioning	Applicant	Respondent	Tribunal’s Finding
ADLs	4	3	4
Social Functioning	4	3	4
CPP	2	2	2
Adaptation	4	3	4

22Both parties agree that the applicant should be assessed as class 2 (mild) in Concentration, Persistence and Pace, and I see no reason to disagree based on the evidence. Accordingly, my analysis will focus on the other three areas: Activities of Daily Living, Social Functioning and Adaptation.

Witnesses and Evidence

23In addition to the applicant’s testimony, the applicant called Ms. Anick Labonté, a treating psychotherapist, Ms. Donna Matheson, an occupational therapist, and Dr. Emily Gavett-Liu, a psychiatrist who was the applicant’s principal CAT assessor.

24I found the applicant to be a sincere and credible witness when testifying about her condition and situation. I give the highest weight to the testimony, evidence and report provided by psychiatrist Dr. Emily Gavett-Liu (Psychological Assessment Catastrophic Determination Report dated September 22, 2025), who conducted an 81 minute virtual assessment of the applicant. I found Dr. Gavett-Liu’s application of the Guides and her assessment of the applicant was thorough and comprehensive.

25The respondent called Ms. Wesam Alghazawi, an occupational therapist, Dr. Kim Payne, a neuropsychologist, and Dr. Nabil Philips, a psychiatrist.

26In terms of the occupational therapists’ reports and testimony, both occupational therapists provided what I believed to be effective assessments of the applicant and both spent time with the applicant at her home. Ms. Matheson’s reports were a section 25 Occupational Therapy Situational Assessment Report from November 26, 2024 and a Functional Assessment Report dated November 4, 2025. Ms. Alghazawi’s report was a section 25 Occupational Therapy In-Home Assessment and Report, dated March 14, 2025.

27Psychiatrist Dr. Nabil Philips on behalf of the respondent was a good expert witness. He opined that the applicant suffered from a pain disorder associated with psychological factors and a general medical condition, a conversion disorder (the applicant’s psychogenic episodes), an adjustment disorder with depressed mood, and somatic focus and catastrophizing. He performed a virtual assessment over Zoom, and also completed an addendum report. However, Dr. Philips missed key elements of the applicant’s past personal, medical and psychological history. For example, he stated that the applicant was well groomed (all evidence to the contrary from his OT assessors), he was uncertain about the applicant’s employment history, and about her self-care. Accordingly, I have assigned his report and testimony less weight than that of Dr. Gavett-Liu.

28I assign Ms. Labonté’s testimony less weight than the other witnesses who testified at the hearing. As a treating psychotherapist she does know and understand the applicant but she was for the most part unaware of the applicant’s concurrent psychological treatment by physician Dr. Hercules and was unaware of Dr. Leon Steiner’s psychiatric CAT assessment report (January 17, 2022) that was prepared for a previous CAT dispute with another insurer that was withdrawn by the applicant.

29Finally, given the dispute about Dr. Payne, I have, as noted above, assigned much less weight to her evaluation and testimony given that she was not asked to provide an opinion on Criterion 8 but rather Criterion 6. She said in her testimony and report that she could find no evidence of cognitive impairment related to the 2022 accident, but that is tempered by the fact that the applicant did not or could not complete her tests. Her evidence and testimony was not very helpful in helping me to make a decision in this case.

Analysis

30Dr. Gavett-Liu testified that as a result of the accident the applicant suffered from conversion disorder (psychogenic non-epileptic seizures), severe and persistent somatic symptom disorder, and a major depressive disorder (anxious distress). In her opinion there was no evidence of malingering, though some symptoms may have been exaggerated. In her opinion, the applicant had marked impairments in activities of daily living, social functioning and adaptation. Both occupational therapists that assessed the applicant in-person reported symptoms and issues with the applicant that were consistent with these diagnoses.

31Dr. Gavett-Liu also opined that without the 2022 accident, the applicant would not have had a conversion disorder and other disorders would have remained at a lower level of severity. In short, the accident increased the severity of already-existing conditions and caused her injuries to rise to the level consistent with catastrophic impairment.

32Dr. Nabil Philips, the psychiatrist who conducted a CAT assessment examination of the applicant for the respondent noted in his opinion that the subject accident was a partial contributor to the applicant’s current presentation. Dr. Philips believed that the accident did not introduce fundamentally new psychiatric pathology but appears to have exacerbated psychological problems in a person with pre-accident impairments.

33The respondent submits that many of the applicant’s psychological conditions precede the subject accident, and some can be traced as far back as the applicant’s history of childhood trauma and sexual abuse. The respondent points to a January 17, 2022 section 25 psychological assessment CAT report (for a previous accident) by Dr. Leon Steiner, which concluded that the applicant had a variety of emotional, physical and psychological difficulties including anxiety and depression with somatic symptom disorder (predominant pain) and adjustment disorder with depressed mood after a 2018 accident and that problems with household chores, PSW assistance, and issues with dressing and grooming all preceded the 2022 subject accident. However, there is little evidence that the applicant had marked difficulties with activities of daily living, adaptation and social functioning prior to the 2022 accident. For example, she worked full-time after the 2018 accident with only a few limitations. And records from occupational therapists prior to the 2022 accident show the applicant was fully independent with self care, home tasks and ADLs, and she had an active social life. After the accident there is a considerable decline in her ability to do these things.

34When establishing causation, even if the applicant has a reduced baseline of functioning prior to the accident (which is true in this case), pre-existing medical issues do not necessarily negate an insurer’s liability. The subject accident need not be the only cause of the impairment but must be a necessary cause. It is well established law that the appropriate test to determine causation in many accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121. To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status.

35While it is true that the applicant did indeed have pre-existing issues with her mental and physical status as a result of a prior accident and other medical problems, as the respondent asserts, it has been made clear from the evidence and testimony that the applicant is not the same as before the subject accident. There is little evidence that the applicant, prior to the subject accident, had many or significant limitations in her capacities related to the four areas that are part of criterion 8: activities of daily living, social functioning, adaptation, and concentration, persistence and pace.

36For example, according to treating physician and therapist Dr. Hercules’s records and notes, she had resumed attending church, socializing with family and friends and travelling to Montreal after recovering from her 2018 motor vehicle accident. All of this activity for the most part ceased after the subject accident.

37Accordingly I find that the applicant has shown that but for the accident, she would not have suffered the Criterion 8 impairments which form the basis for her application for CAT status.

Activities of Daily Living

38Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. 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 or initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

39CAT psychiatric assessor Dr. Gavett-Liu found that the applicant has a class 4 “marked” impairment, and the applicant testified as to her significant difficulty completing her daily activities. A personal support worker visits three times per week and helps the applicant with showering and bathing, laundry, cleaning, which the applicant is not able to do on her own. The applicant testified that she has difficulties with sleep and suffers from psychogenic episodes which cannot be controlled. These episodes began a little less than a year after the subject accident. She in fact testified that she is afraid to shower without supervision (and may shower as infrequently as twice per month). In terms of activities, the applicant can no longer play piano, write poetry, or travel with frequency. OT assessor Ms. Matheson pointed out in her report that the applicant was distracted while cooking, burned toast, did not notice water was boiling, and that the applicant’s house was unkept with food left out.

40The applicant may have been able to perform some personal care and hygiene tasks after the subject accident but there was a substantial decline in capacity and in frequency. According to Donna Matheson, the applicant’s occupational therapy assessor, the applicant spends most of her time at home, struggles to complete activities of daily living, and struggles to do basic tasks like shower, brush her teeth or change clothes on a regular basis, and she has PSW help for these activities. We also know from testimony that the applicant does not often shop for herself and depends on her sister and some family members to help bring her meals. This is in contrast to the applicant’s reported functioning prior to the 2022 subject accident, as corroborated by occupational therapists Christine Dorcas and Breanna Carvalho in May 2022 and November 2025 respectively. This was also corroborated by the respondent’s occupational therapy assessor, Ms. Wesam Alghazawi, OT. Ms. Alghazawi noted that the applicant did not shower frequently and neglected her hygiene, and showered only if a PSW was present. Ms. Alghazawi further noted in her report that the applicant’s clothes appeared dirty, she was unable to change her underwear, she had not showered in one week and concluded that the applicant lacked the physical, cognitive or emotional functional abilities and tolerances to cope with day-to-day activities.

41Ms. Matheson noted in her report and testified that she was not adequately maintaining her household and this impacted her mental health and dignity. I found Ms. Matheson to be a competent and credible witness. By all appearances, her assessment of the applicant was thorough, she has a strong grasp of the methodology and methods required, and I give significant weight to her testimony and report.

42The respondent’s s. 44 review by Dr. Philips suggests that the claimant is capable of living independently and performing almost all of the activities of daily living. I give no weight to that conclusion because, on the preponderance of evidence including the respondent’s own occupational therapy assessor, the applicant is significantly compromised in these activities and for the most part requires assistance to change, do laundry, clean her house, cook, shop, change her clothes and shower.

43In addition, the respondent has suggested that the applicant’s purchase and set-up of a small home appliance was an example of a situation that proved that the applicant was independent in physical and cognitive ability and function, and that the applicant could consistently complete activities of daily living. I do not find this to be the case. In my view, the isolated example of the applicant being able to purchase and set up a small appliance does not detract from the fact that reports and evaluations have consistently found that the applicant has a significant impairment in her ability to complete activities of daily living, and therefore I believe based on the evidence and on the balance of probabilities that the applicant has a class 4 impairment in this area.

Social Functioning

44Under the Guides 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, store employees, etc. 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.

45Both parties’ OT assessors testified and noted in their reports that the applicant had significant difficulties with social functioning. The applicant said to both assessors that she is isolated, she no longer socializes with friends or attends church, and the distress of having a psychogenic episode further isolates her out of fear of embarrassment in social situations. The Tribunal was made aware of, and witnessed firsthand, the applicant’s difficulty with these episodes During the course of the applicant’s testimony, the applicant had to pause a number of times when she experienced these episodes, and we also have evidence from her OT assessors (and other treating health professionals including psychotherapist Ms. Labonté and treating physician/therapist Dr. Peter Hercules) who saw these episodes. I accept the applicant’s testimony that such behaviour would be distressing in a public setting.

46Dr. Gavett-Liu, on whose evidence I place the highest weight, testified that the applicant confirmed to her that she had no social life and her only visitors were personal support workers and occasionally her family. Dr. Gavett-Liu noted that she was withdrawn in her examination and showed a low mood and depressive symptoms. Dr. Gavett-Liu also opined that she was isolating and avoiding social contact to avoid embarrassment, especially because of fear of embarrassment from her psychogenic episodes. Dr. Gavett-Liu assigned the applicant a class 4 “marked” impairment rating.

47This rating is confirmed by most of the interactions we saw documented between the applicant and her assessors (especially the two OT assessors) in addition to other treating health professionals. She became easily fatigued and confused, had difficulties with tests, was unclear in her communication and had difficulty with staying on topic.

48Dr. Philips, the respondent’s catastrophic impairment psychiatric expert, believed that the applicant had a moderate impairment of her social functioning, he believed that she had skills to engage and interact with others, and she continued to have an attachment to her family that was slightly reduced. I disagree with this. In terms of her relationship with her family, we heard that she was unable to visit family in Montreal as she used to, she seldom attended family functions (or other events) and that she depended on her nephew or sister to help her – this is not engagement, this is a one-way dependent relationship.

49While it is true the applicant had mildly reduced social functioning prior to the subject accident, I accept the applicant’s submissions in addition to expert and witness evidence that she is subjectively and objectively worse after it. I believe the applicant’s social functioning has been significantly impacted post-accident and is at a level consistent with impeding useful functioning. Accordingly, I agree with the applicant’s assessor, Dr. Gavett-Liu, and assign the applicant a “marked” impairment rating of 4.

Adaptation

50The factors to consider under this domain are deterioration or decompensation in work or work like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptom. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

51The applicant said that she was no longer able to work after the subject accident, and is not employable, according to expert witness Dr. Gavett-Liu. When the applicant was working, she failed performance reviews, required significant accommodation, and declined tasks due to pain and fatigue. This is noted in testimony, in doctor’s letters and CNRs, and in workplace records.

52In work or work-like settings there was strong evidence from her work records, and reports, that the applicant was unable to cope with her work and accordingly was seen as underperforming, failed performance reviews, was accommodated and given fewer duties, and then went on long term disability leave. There is also the strong impression based on testimony and evidence that when accommodated, she was at home essentially not doing anything of value. Dr. Hercules, a treating physician and therapist, noted in his July 2025 response to a request for information on the applicant from her workplace that she had cognitive functional and psychosocial difficulties that affected her in the workplace. Based on evidence and testimony, in the workplace the applicant was unable to perform her duties. This shows that useful functioning in terms of adaptation was compromised.

53Furthermore, the applicant declined (or failed) tasks due to pain and fatigue during OT and other testing. She mixed up dates and appointments and forgot to take medications. In the opinion of Ms. Alghazawi, the respondent’s s. 44 OT examiner, her ongoing pain and strained cognitive and emotional health negatively impacted her abilities to function and adapt. According to Donna Matheson, the applicant’s OT expert assessor, the applicant required breaks through the testing period, had difficulty concentrating and the applicant’s impaired sleep also contributed to the applicant’s issues and symptoms that showed the applicant suffered from a marked impairment in this domain.

54The respondent submits that the applicant was already experiencing significant problems at her job when the accident occurred. While it is true that the applicant had issues at her job prior to the accident (which the applicant testified were for the most part due to difficulties with her supervisor), the evidence shows that the applicant’s issues and problems at her workplace were exacerbated even after her workplace attempted to accommodate for her physical, psychological and emotional issues. This is an excellent example of how the applicant’s impairment levels significantly impede useful functioning in the area of adaptation.

55Based on the evidence and testimony, I believe that the applicant should be assessed as having a marked impairment rating in adaptation.

ORDER

56I find that the applicant has sustained a catastrophic impairment based on Criterion 8, as defined by the Schedule.

Released: April 27, 2026

__________________________

Neil Levine

Vice-Chair