Licence Appeal Tribunal File Number: 24-006070/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:
Asma Khan
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Don Harvey, Counsel
For the Respondent:
Kevin Mitchell, Counsel
Riley McIntyre, Counsel
Hearing Reporter:
Jo Velimirovic
Heard by Videoconference:
March 23-27, 2026
OVERVIEW
1Asma Khan, the applicant, was involved in an automobile accident on November 30, 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 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?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) from March 9, 2020 to present and ongoing?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew her claim for an award under s. 10 of Reg. 664 at the hearing. Also at the hearing, the parties advised me that I need not decide the appropriate quantum of IRB. If I find the applicant is entitled to an IRB, they will calculate the appropriate amount of the benefit taking into account any CPP- Disability benefits received by the applicant.
RESULT
4I find that:
i. The applicant is not catastrophically impaired (“CAT”);
ii. The applicant is not entitled to an IRB; and
iii. The applicant is not entitled to interest.
PROCEDURAL ISSUES
Respondent’s motion to exclude Dr. Levitt’s report and various other late-served documents
5The respondent filed a motion dated April 2, 2025 seeking to exclude the expert report and testimony of Dr. Levitt, which was served on the respondent on March 21, 2025, and the report of Dr. Gnam, Psychiatrist, which was served on the respondent on November 13, 2025. The respondent also sought to exclude other documents that were served outside of the time limits set at the October 17, 2024 case conference, which included the expert report of Dr. Kumbari, the applicant’s CPP file and various medical records. The respondent agreed that if I decided to rely on Dr. Levitt’s report and testimony, the late-served medical records should also be included in evidence.
6While the hearing of this matter was originally scheduled for April 2025, it was subsequently adjourned three times before it proceeded in March 2026. The respondent submits that the time limits for serving and filing documents to be relied on at the hearing were never adjusted from those set out at the case conference, despite the adjournment orders that were issued. The respondent submits that the applicant failed to meet these deadlines repeatedly and there should be consequences for her failure to follow the Tribunal’s rules and procedures.
7The applicant agreed to the exclusion of the expert report of Dr. Kumbari and the applicant’s CPP file. The applicant submitted that she would be significantly prejudiced if she was not permitted to rely on the s. 25 CAT assessment report of Dr. Levitt, which was the basis for her claim for CAT and also vital to her claim for an IRB. Similarly, the expert report of Dr. Gnam, psychiatrist, was relevant to her CAT claim under Criterion 8 and she argued that she would be greatly prejudiced if she was not permitted to rely on it.
8I find that, due to the multiple adjournments, the respondent had the contested documents in its possession for between three months and a year before the hearing proceeded. This was ample time for it to review the documents with its witnesses. Dr. Levitt’s report in particular is a key part of the applicant’s evidence in support of her claim and its exclusion would likely be fatal to her application. In contrast, any prejudice to the respondent by the late production of the various documents has been cured by the passing of time. In addition, I ordered that the respondent’s expert, Dr. Jwely, would be permitted to comment on the report of Dr. Levitt, if the respondent provided the applicant with an updated will say statement at least 24 hours prior to Dr. Jwely’s testimony.
9I also ordered that the applicant could rely on the expert report of Dr. Gnam, provided she produced Dr. Gnam for cross-examination, if desired by the respondent.
Section 45(2)1 of the Schedule and the applicant’s psychological assessment report
10During closing submissions, the respondent raised the concern that Dr. Levitt is a psychologist, not a medical doctor and is unable to opine on Criterion 8 mental and behavioural impairments, by operation of s. 45(2)1 of the Schedule. It relied on the Tribunal decision of Lanzon v. Economical Insurance Company, 2023 CanLII 42578 (ONLAT) (“Lanzon”) and the Divisional Court decision of Abboud v. Intact Insurance Co., 2025 ONSC 3416 (“Abboud”).
11The applicant submits that the Catastrophic Impairment Determination Psychological Assessment Report dated March 20, 2025, was supervised by the conducting physician, Dr. Melody Nguyen, Physical Medicine Specialist, with the assistance of Dr. Brian Levitt, psychologist.
12In Lanzon, the applicant was denied a catastrophic impairment designation on the basis that his catastrophic impairment assessment report was conducted by a psychologist, instead of a physician, as required by s. 45(2) of the Schedule. I am not bound by this decision, which I note was sent back for a rehearing of the issues following a reconsideration decision, and was subsequently overturned on this issue.
13I find that the situation in Abboud can be distinguished from the current case. In Abboud, the Divisional Court upheld the Tribunal’s decision to deny the applicant’s claim for catastrophic impairment designation in a situation where the Tribunal had no evidence that the physician who completed the OCF-19 was assisted by the psychologist who completed the assessment report on which the applicant sought to rely. In the current situation, the CAT report specifically sets out the role of Dr. Nguyen in reviewing the applicant’s medical file, determining the composition of the assessment team, reviewing the findings of all team members and consulting with the team in order to arrive at her final conclusions regarding opinions and ratings in order to make a determination of CAT status. The report specifies that the relevant information gathered through the assessments and examinations was integrated into the one report.
14Based on the description of how the assessment was conducted by the team, which is set out in the report of March 20, 2025, I am satisfied that the requirements of s. 45(2)1 were met in this case.
Applicant’s request to call an additional witness
15On the first day of the hearing, the applicant sought an order to include an additional witness on her witness list. She sought to call her sister to testify on the basis that her sister spends time caring for her every day. The applicant advised that Dr. Levitt’s report was based, in part, on a collateral interview with her friend Marium Khan, who had been spending time with the applicant on a daily basis during a different time period than the sister and so Marium Khan was already on the witness list. The applicant proposed to call the applicant’s sister in addition to Marium Khan.
16The respondent objected to the inclusion of an additional witness on the first day of the hearing as the request could have been made ahead of time, the parties had discussed a timetable for calling the witnesses and the applicant did not mention the sister at that time, and the sister did not have information that the applicant herself could not testify to. There was therefore no prejudice to the applicant if her sister did not testify.
17I declined the applicant’s request because I found that the sister’s testimony would be unlikely to add anything given both the applicant and Marium Khan were already going to testify. Marium Khan provided the same function as the sister in the applicant’s life, although the sister took over for a period of time while Marium was living out of the province for approximately one year. In addition, the timetable for the hearing was already full, with most of the witnesses being medical professionals who would be difficult to reschedule. Adding the applicant’s sister to the witness list would have needlessly added further difficulty to scheduling witness testimony and I was not persuaded by the applicant’s argument that another lay witness would provide me with relevant evidence that would not be repetitive nor assist me in my evaluation of the competing medical expert opinions under Criterion 8.
ANALYSIS
Is the applicant catastrophically impaired (CAT)?
18I find that the applicant has not proven, on a balance of probabilities, that she is CAT.
19In order to be found CAT, the applicant must demonstrate, on a balance of probabilities, that she sustained an accident-related impairment that is defined as catastrophic under the Schedule. Criterion 8 determinations under the Schedule use the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“AMA Guides”).
20The AMA Guides refer to four areas of function, which are: activities of daily living (“ADLs”); social functioning; concentration, persistence and pace (“CPP”); and adaptation.
21Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning in each of the four areas. The levels are explained in the following table:
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 and Pace
Adaptation (in a work-life setting)
22For the Tribunal to find that the applicant has sustained a catastrophic impairment under Criterion 8, the applicant must show that, as a result of a mental or behavioural disorder, she has an extreme level of impairment in any one of the four areas of function or that she has a marked level of impairment in at least three of the four areas of function. The applicant has the onus of proving this on a balance of probabilities.
23The applicant submits that the accident caused her to sustain a marked impairment in each of the four areas of function: ADL, social functioning, CPP and adaptation. She relies on her own testimony, the testimony of her friend Marium Khan, and the expert testimony and reports of Dr. Brian Levitt, psychologist, who was involved in the Criterion 8 CAT assessment, and Dr. William Gnam, psychiatrist, who conducted an independent psychiatry assessment.
24The respondent submits that the accident did not cause the applicant to sustain a marked impairment in any of the four areas of function. It relies on the Insurer’s Examination (IE) CAT assessment of Dr. Ahmed Jwely, psychiatrist, who found that the applicant sustained no marked or extreme impairment in the four spheres of functioning.
The applicant sustained a mental or behavioural disorder as a result of the accident
25I find that the applicant has proven, on a balance of probabilities, that she sustained a mental or behavioural disorder as a result of the accident.
26The applicant submits that as a result of the accident, she has been diagnosed with: Somatic Symptom Disorder, with Pain and Post-concussive Symptoms, Severe and Persistent; Psychological Factors Affecting Pain and Post-concussive Symptoms, Moderate; Post-Traumatic Stress Disorder; Major Depressive Disorder, moderate, chronic; and Bipolar Disorder. In support, she relies on the CAT assessment report of Dr. Levitt. The applicant acknowledges that she may have experienced some less severe symptoms of Bipolar Disorder prior to the accident and that she was, generally, vulnerable to sustaining a mental or behavioural disorder prior to the accident.
27The respondent submits that the applicant has not established that all of her mental and behavioural disorders arose as a result of the accident. In support of its position, it relies on the January 19, 2024 report of Dr. Jwely.
28Dr. Levitt diagnosed the applicant, in a report dated March 20, 2025, with Somatic Symptom Disorder, with Pain and Post-concussive Symptoms, Severe and Persistent; Psychological Factors Affecting Pain and Post-concussive Symptoms, Moderate; Post-Traumatic Stress Disorder (PTSD); Major Depressive Disorder, moderate, chronic; and Bipolar Disorder. Dr. Levitt opined that the applicant was functioning well prior to the accident and, while he agrees that she had pre-existing psychological vulnerabilities, all of her post-accident diagnoses were tied to the accident.
29Dr. Gnam diagnosed the applicant, in a report dated July 31, 2025, with Bipolar I Disorder, PTSD and Somatic Symptom Disorder. He opined that the applicant’s PTSD and somatic symptoms were entirely as a result of the accident because the applicant showed no symptoms of these disorders prior to the accident. Dr. Gnam opined that the applicant had some mild symptoms of a bipolar-spectrum disorder prior to the accident, but the accident caused her to develop more severe symptoms, which led to her diagnosis with Bipolar I Disorder after the accident.
30Dr. Jwely, in his report dated January 19, 2024, diagnosed the applicant with Chronic Depression Disorder and Chronic Somatic Pain Disorder. Dr. Jwely acknowledged during his testimony that he was aware, from his review of the medical file, that the applicant had been diagnosed with PTSD and Bipolar Disorder prior to his assessment of the applicant. He testified that while those disorders never really go away, she did not present with symptoms of those disorders at the time of his assessment, so he did not diagnose her with them. He did not dispute that those diagnoses were legitimate at the time they were made. Dr. Jwely acknowledged that the applicant was clearly impacted by the accident. He also noted the applicant’s pre-accident psychiatric vulnerabilities and a number of post-accident traumatic events. He opined that the accident was partially responsible for her mental and behavioural impairments at the time of his assessment. He opined that the accident did not cause the applicant’s Bipolar Disorder, however he also acknowledged that there was a significant overlap in symptoms between Chronic Depression Disorder and Bipolar Disorder.
31I find that while the three experts all found different ways to phrase their opinions on whether the applicant’s mental and behavioural disorders occurred as a result of the accident, their opinions did not differ significantly. All three experts acknowledged that the accident played a clear role in the development and worsening of the applicant’s psychological symptoms. Therefore, while the parties made submissions respecting the cause of the applicant’s Bipolar Disorder in particular, I find that it is not necessary for me to determine the precise cause of that particular disorder because she has been clearly diagnosed with a number of other serious psychological conditions as a result of the accident and the symptoms of the various disorders overlap in such a way that it is not possible to separate the effects of the Bipolar Disorder from the effects of the other disorders.
32I agree that the testimony of the applicant and Dr. Santosh Dubey, the applicant’s family doctor, as well as the clinical notes and records (CNRs) of Dr. Dubey, Dr. Inderjit Chohan, the applicant’s treating psychiatrist, and Richard Alarie, the applicant’s treating psychotherapist, all support the applicant’s position that she sustained mental and behavioural impairments as a result of the accident. The CNRs contain consistent reports that the applicant functioned very well before the accident despite her acknowledged existing psychiatric vulnerabilities and then was referred to and received extensive psychological and psychiatric treatment after the accident.
33While the diagnoses of Dr. Levitt and Dr. Jwely were not identical, I accept Dr. Jwely’s explanation that there is significant overlap in the symptoms of many of the applicant’s diagnoses. I also find that the symptoms of the applicant’s various mental and behavioural disorders fluctuated in severity and prevalence over time such that the applicant likely did not present with identical symptoms during each assessment. I find that it is not necessary for me to determine her precise diagnoses, given that both parties’ assessors are in agreement that the applicant suffers from psychological impairments as a result of the accident. I am satisfied that she has proven, on a balance of probabilities, that she has sustained mental and behavioural impairments as a result of the accident.
The applicant has a moderate impairment in Activities of Daily Living (ADL)
34The AMA Guides specify that activities of daily living include 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. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
35Dr. Levitt opined that the applicant sustained a marked impairment with respect to ADLs based on the applicant’s reports that while she is physically capable of carrying out most activities, the applicant’s pain, low mood and low motivation interfere with her ability to do them without support from friends and family members. Dr. Levitt testified that he relied on the report of Bani Ahuja, Occupational Therapist, which supported his opinion. Dr. Levitt’s report referred specifically to Ms. Ahuja’s observation that the applicant displayed a reduced tolerance to engage in community activities in the absence of external prompting and support.
36Dr. Jwely opined that the applicant sustained a mild impairment with respect to ADLs. Dr. Jwely also took into account the report of Ms. Ahuja. He acknowledged that the applicant’s pain, low energy and lack of motivation affected her ability to complete many of her grooming and housekeeping activities without cueing or other assistance from friends and family members. However, Dr. Jwely also considered the applicant’s continued ability to drive and communicate independently. He further considered that while she was not able to complete many of her self-care activities independently, she was able to complete them with prompting from her sister or Marium Khan.
37I give weight to the following indications of good function in this sphere: Dr. Levitt’s acknowledgement that the applicant was able to independently manage her own medication, which was supported by the testimony of the applicant; the CNRs of Mr. Alarie, the applicant’s treating psychotherapist, which stated that the applicant had returned to driving independently following her treatment; and the applicant’s testimony on most of the first day of the hearing, during which I find she was able to communicate articulately, which was supported by Dr. Jwely’s opinion that the applicant can communicate independently; the applicant’s testimony that she was able to travel to Pakistan on at least two occasions since the accident; the applicant’s acknowledgment that she got married and had a child since the accident. I also give weight to the testimony of the applicant that she lived by herself at the time of the hearing and had done so for the majority of the time since the accident, baring two brief periods of time when she lived with her mother immediately following the accident and immediately following her separation and the period during which she lived with her husband. While the applicant needs some support from her sister and Marium Khan to prompt her to complete her self-care activities, I find that she is capable of a significant amount of independence in this sphere.
38I also give weight to the following indications of poor function in this sphere: Dr. Levitt’s opinion that the applicant’s mental and behavioural symptoms give rise to the need for cueing and encouragement from her sister and Marium Khan to get her to do many of her self-care activities such as bathing and changing her clothes; the applicant’s testimony that she completes many of her self-care activities at a reduced rate, such as showering once or twice per week; and the testimony of the applicant and Marium Khan that the applicant is unable to do many of her housekeeping activities, which are completed by the applicant’s sister or Marium Khan.
39I find that Dr. Levitt did not mention in his report some of the areas where the applicant has retained function in her ADLs. I also find that Dr. Jwely opined that the applicant was more independent in her ADLs than I have found. Rather than accepting the opinion of either expert with respect to a rating in this sphere, I find that the evidence, as a whole, indicates that the applicant’s mental and behavioural disorders are compatible with some useful functioning, while impairing other useful functioning. Therefore, I find that the applicant has proven, on a balance of probabilities that she sustained a moderate impairment in the sphere of ADLs.
The applicant has a moderate impairment in social functioning
40The AMA Guides specify that the factors to consider under the social functioning domain 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.
41Dr. Levitt opines that the applicant sustained a marked impairment in this sphere of functioning based on the applicant’s reports that she had become largely withdrawn and isolated since the accident, had lost many friends, her ex-husband ended their marriage and she was unable to care for her daughter. Dr. Levitt again opined that his opinion was supported by the observations of Ms. Ahuja, the occupational therapist.
42Dr. Jwely opines that the applicant sustained a moderate impairment in this sphere as her symptoms of pain, fatigue, anxiety and sadness limit her ability to socialize. Dr. Jwely recognized that the applicant’s social circle had been reduced since the accident, primarily due to her symptoms of anxiety and depression.
43I find that the applicant has displayed some strengths in social functioning since the accident. Specifically, she got married and lived with her husband for a period of time after the accident. While that marriage ended, she was able to commence and develop that relationship entirely post-accident. The applicant attends regular access visits with her child. From her testimony it was clear that while she does not have custody of the child, she takes advantage of any opportunity to be with her child and maintain and build a relationship with her child. She has maintained good relationships with her mother and three siblings, particularly her sister. She has maintained good relationships with her best friend Marium Khan and with one other friend from university.
44Dr. Levitt testified that the applicant’s good relationships with family members may be due to the “heroic efforts” of the family members rather than the good social functioning of the applicant. While I agree that the applicant is fortunate to have some very supportive family and friends, I find that the applicant makes an effort to maintain those relationships as well. For example, she testified that she drives herself over to her sister’s house or Marium Khan’s house every afternoon. While her impairments may require them to phone and prompt her to visit, she still takes active steps to spend time with them. The applicant also testified that she helps out with minor food preparation or cleaning tasks if she can when at her sister or her friend’s house. I find that this is indicative that the applicant, while her ability to make efforts may be reduced, continues to make efforts to build and maintain these important relationships. Further, while the applicant testified that her friend from university initiates their visits by texting her when she is going to be in town and then comes to visit her, I find that the applicant has continued to be receptive to those visits for several years post-accident.
45Therefore, I give Dr. Levitt’s opinion in this sphere less weight because he did not consider the many good relationships that the applicant has maintained with friends and family since the accident.
46I note that the applicant testified for almost a full day at the hearing and I find that she was able to communicate clearly and appropriately throughout the day. This corresponds with the reports of Dr. Jwely and Ms. Ahuja, both of whom stated that the applicant communicated appropriately, effectively and independently during their assessments of her.
47I find that the applicant provided some evidence of poor social functioning as well. Dr. Dubey and Marium Khan both testified that the applicant has had occasional “outbursts” when dealing with staff at Dr. Dubey’s office and customer service providers. These outbursts included yelling inappropriately when things did not go the way she wanted them to go. While I acknowledge the reports that these incidents happened at some point post-accident, I was unclear as to when these incidents occurred. The timing is relevant as many of the applicant’s symptoms, particularly those related to mood lability, have been largely controlled by medications.
48The applicant testified that she is much more socially isolated than she was before the accident. She testified that she broke up with her pre-accident fiancé shortly after the accident. Marium Khan testified that the applicant was very popular and social and had many friends prior to the accident and that her social circle has been significantly reduced. The applicant testified that she used to enjoy boxing prior to the accident and is no longer able to. I find that the applicant’s post-accident tendency to self-isolate was well documented. She reported this tendency to many assessors, including Dr. Levitt and Dr. Jwely.
49Therefore, I find that the applicant has proven, on a balance of probabilities, that her mental and behavioural impairments are compatible with some, but not all, useful functioning in this sphere. I find that she has sustained a moderate impairment.
The applicant has a moderate impairment in Concentration, Persistence and Pace (CPP)
50The AMA Guides describe this domain as the ability to maintain focus and attention long enough to complete tasks in a work setting or in the context of activities of daily living. The time taken to complete tasks is a relevant consideration.
51Dr. Levitt opines that the applicant sustained a marked impairment in this sphere of functioning. He considers that the applicant reported that she was unable to engage consistently in her nursing program and had to drop out three times despite significant accommodations, that she is unable to complete housekeeping tasks, and that she finds her memory to be poor since the accident. Dr. Levitt opined that the observations of Ms. Ahuja, the occupational therapist, corresponded with his opinion. Dr. Levitt’s report specifically referred to Ms. Ahuja’s observation that the applicant was only able to wipe surfaces during the assessment for 15 minutes before needing a rest and then needed cueing to continue and could only persist for another 5 minutes. The report also referred to Ms. Ahuja’s observation that the applicant became overwhelmed with a three-component work-simulating task, where the applicant withdrew from two of the three tasks within half an hour.
52Dr. Jwely opined that the applicant sustained a mild impairment in this domain because her symptoms prevented her from self-initiating and persisting in many activities of daily living in the absence of prompting and cueing from others. With respect to the applicant’s nursing program, Dr. Jwely testified that completing even one course in a nursing program is indicative of fairly high functioning in this sphere and the applicant completed an entire two-year program, albeit in four years. Dr. Jwely further testified that driving requires a certain amount of concentration as well, and the applicant is able to drive, at least locally.
53The applicant testified that she completed a two-year nursing diploma after the accident. She testified that it took her four years to complete and she received her diploma despite not completing the practicum requirement. I note that the applicant, despite being asked by the respondent to produce the supporting academic records, did not do so. I also note that the applicant started nursing school in 2018 and did not graduate until 2022, which spans the period when many schools were interrupted by the COVID-19 pandemic, although the applicant testified that her school was not closed due to the pandemic. The applicant also testified that she travelled to Pakistan in 2019 to be married.
54I find that the applicant has not proven that the reason she took four years to complete the two-year nursing diploma was due to her mental and behavioural impairments. The applicant’s testimony was vague with respect to the reason why she took four years to complete the program. She did not testify that she failed any courses. Nor did the applicant provide academic records, which could have clarified any academic struggles. In addition, I find that the CNRs of her treating medical practitioners indicate that the applicant reported feeling optimistic and good about the nursing program at the time she was enrolled in the program. I was not directed to any CNRs where she reported needing to drop out of nursing due to her impairments.
55The applicant testified that she received her diploma despite not completing the practicum because the school was a “private college.” I find this explanation lacking, particularly in the absence of any corroborating documentation from the school. Again, I find that the applicant’s testimony was vague with respect to the reason why she was unable to complete her practicum. I therefore give little weight to the applicant’s testimony that her impairments caused her to take longer to complete her nursing program and to fail her practicum.
56I note that the applicant testified for most of the first day of the hearing and did so in an articulate and thoughtful manner. She was able to independently recall events from her life, many of which were confirmed by documentary evidence or the testimony of others. Ms. Ahuja also noted in her report that the applicant articulated herself appropriately and maintained attention during conversations during her assessment.
57I give weight to the report and testimony of Ms. Ahuja, which I find supported the testimony of the applicant that she struggles to initiate and complete many self-care and housekeeping tasks due to her pain or somatic symptoms, low mood and reduced motivation. Ms. Ahuja testified that she had to prompt the applicant to transition between activities during the assessment and that the applicant was unable to persist with the assigned housekeeping tasks. However, I note that the applicant wiped surfaces for 15 minutes prior to taking a break and participated in the multi-tasking activity for 30 minutes prior to withdrawing from two of the activities and completing just one of the activities. Therefore, while Ms. Ahuja’s observations show some impaired functioning in this sphere, I find that the applicant retains some useful functioning as well.
58I find that there are problems with both the opinion of Dr. Levitt and the opinion of Dr. Jwely in this area. I find that Dr. Levitt put significant emphasis on the applicant’s reports that she struggled in nursing school, while Dr. Jwely did not put sufficient emphasis on the well-documented struggles that the applicant has reported in persisting and completing self-care and housekeeping tasks. Rather than accepting the opinion of either expert with respect to a rating in this sphere, I find that the evidence, as a whole, indicates that the applicant’s mental and behavioural disorders are compatible with some useful functioning, while impairing other useful functioning. Therefore, I find that the applicant has proven, on a balance of probabilities, that she sustained a moderate impairment in the sphere of CPP.
The applicant has a moderate impairment in adaptation
59The AMA Guides explain the area of adaptation, also described as deterioration or decompensation in work or work-like settings, as a repeated failure to adapt to stressful circumstances, which can result in withdrawal from the stressful situation. An impairment in adaptation affects the ability to function across all activity areas. In a work environment, relevant considerations can include attendance, making decisions, scheduling, completing tasks and interacting with others. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness and sustainability.
60Dr. Levitt opined that the applicant sustained a marked impairment in this sphere of functioning. His report stated that the applicant already presents in a deteriorated state, she finds herself too overwhelmed and anxious to go out in public and so has been unable to return to work since the accident. Dr. Levitt considered the applicant’s reported struggles with completing her nursing diploma, which I have found, for the reasons set out above, the applicant has not proven were related to her mental and behavioural impairments. However, Dr. Levitt also considered the applicant’s reports of suicidal ideation, and the reports from both the applicant and Marium Khan that the applicant deteriorates emotionally when she is left alone.
61Dr. Jwely opined that the applicant sustained a moderate impairment in this domain. He opined that her symptoms, such as irritability and low motivation, may cause moderate challenges with adaptation rather than precluding the capacity. He considered the findings of Ms. Ahuja’s occupational therapy assessments. He also considered that she was able to communicate independently and maintain her family/caregiver responsibilities with some assistance. Dr. Jwely testified that the applicant’s ability to attend psychotherapy with Mr. Alarie for a year-long period, and achieve the positive results that were documented, is another indication of good function in this domain.
62While I find that Dr. Jwely’s report overstated the applicant’s ability to maintain her family and caregiver responsibilities, I otherwise agree with his assessment in this sphere. The applicant’s testimony, the testimony of Marium Khan and the report and testimony of Ms. Ahuja all confirmed that the applicant is dependent on Marium Khan and the applicant’s sister, who complete the majority of her housekeeping duties. They also prompt her to complete her self-care tasks on a daily basis and to spend part of every day with one of them so that she does not sit alone every day. Despite this overstatement, I still accept Dr. Jwely’s assessment of the applicant’s level of functioning in this sphere because of the other aspects of good functioning that were considered by Dr. Jwely.
63I find that the applicant’s ability to complete a nursing diploma, even if she did struggle academically, indicates a fairly high level of functioning in the area of adaptation. The applicant also testified that she worked for skip the dishes for approximately 2 hours per day for several weeks. While she testified that it was not sustainable as her pain worsened, I find that her ability to work for a period of time is indicative of some good function in this area. The applicant testified that she started a security business with her cousin and then transferred it to her brother. She denied that this was a failed attempt to work. She testified she registered the business as a favour to her brother while he was out of the country. I find this is a further indication of good functioning in this sphere. The applicant testified that she schedules and attends her appointments independently and attends the gym two or three times per week independently, which is indicative of her ability to make and keep to a schedule. I also find that her ability to interact with others is generally good, despite testimony from the applicant, Dr. Dubey and Marium Khan that the applicant has had occasional outbursts in public. The medical professionals that conducted assessments of the applicant each found her ability to interact and communicate was both effective and appropriate. I find this a further indication of good functioning in the area of adaptation.
64I acknowledge that there is also significant evidence of the applicant’s poor functioning in this sphere. Ms. Ahuja’s assessment included some tasks that were designed to simulate work-like tasks and the applicant struggled significantly and failed to complete most of the tasks assigned. The struggles that the applicant demonstrated during Ms. Ahuja’s assessments mirrored the struggles with ADLs that the applicant and Marium Khan testified to, such as difficulty completing housekeeping tasks and going shopping. I therefore find those struggles are likely fairly consistent, and not just occasional in nature.
65The applicant testified that she started a cleaning business, but found that she was unable to continue with that endeavour due to her mental and behavioural impairments. She also testified about spending time with a friend after the accident and how that led to the applicant taking drugs and, ultimately, being assaulted. I find the applicant’s testimony on this subject is indicative that her mental and behavioural disorders likely impair her judgment on occasion and may lead her to make poor decisions.
66I find that the evidence, on the whole, indicates that the applicant’s impairments are compatible with some, but not all, useful functioning in this area, which accords with Dr. Jwely’s opinion of her level of functioning. I therefore find that the applicant has a moderate impairment in the area of adaptation.
67As a result, I find that the applicant has not proven, on a balance of probabilities, that she is CAT, as she has not proven that she sustained a marked impairment in three out of the four areas of functioning or an extreme impairment in one of the four areas of functioning.
The applicant is not entitled to an IRB
68I find that the applicant has not proven that she meets the test for entitlement to an IRB from March 9, 2020.
69To receive payment for a post-104-week IRB under s. 6 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.
70The applicant applied for and received an IRB until March 9, 2020, when the respondent ceased the benefit on the basis of the results of a multi-disciplinary IE dated February 26, 2020. The applicant claims that she continued to be entitled to an IRB for the post 104-week period. She relies on the report and testimony of Dr. Levitt, the report and testimony of Dr. Gnam, her own testimony and the testimony of her friend Marium Khan.
71The respondent submits that the applicant has not proven that she meets the test for a post 104-week IRB. It relies on the Insurer’s Examination (IE) physician assessment report of Dr. Myron Stelmaschuk, the functional capacity evaluation of Floria Manivong, physiotherapist, and the IE report of Dr. Arlin Pachet, Psychologist, all dated February 26, 2020, as well as on the testimony of Dr. Stelmaschuk, who completed the executive summary for the multi-disciplinary IE.
72The applicant testified that at the time of the accident, she was working as a customer service representative for Bell and was in the process of starting a rental car business with her fiancé. She testified that she was involved in starting two other businesses after the accident, a security business for her brother and cousin, and a cleaning business. After the accident, she completed a two-year practical nursing diploma. She also testified that she had commenced an electrical engineering technician program prior to the accident, but she never completed it. While Dr. Pachet performed some vocational testing on the applicant, the results of her psychometric testing were found to be invalid. Therefore, the multi-disciplinary report made vocational recommendations based on transferrable skills. The applicant did not refer me to any valid vocational test results.
73I therefore find that, based on her education, training and experience, the applicant is reasonably suited to a position in nursing or customer service, or to starting and running her own business or managing a small business or office.
74Dr. Levitt opined that due to the applicant’s marked impairment in the sphere of adaptation, and her deterioration when faced with work-like stressors, employment was counter-indicated for the applicant. He testified that employment would cause the applicant to further deteriorate. I did not find that the applicant’s impairments resulted in a marked impairment in the sphere of adaptation. I give less weight to this opinion of Dr. Levitt because I did not find that the evidence as a whole supported his findings with respect to adaptation and deterioration. In addition, the test for entitlement to post-104 week IRBs is different than the test for impairment in the domain of adaptation.
75Dr. Gnam opined that based on his assessment of the applicant, she was capable of a job that was sedentary and part-time, but that because of her emotional lability, caused by her mental and behavioural impairments, she was likely to lose her job frequently.
76I recognize that neither Dr. Levitt nor Dr. Gnam assessed the applicant with a view to providing an opinion on her eligibility for an IRB under the Schedule. Dr. Levitt assessed the applicant for a CAT designation and Dr. Gnam assessed the applicant for the defendant in her tort action. However, for the purposes of determining entitlement to the IRB, I give a limited amount of weight to the findings of Dr. Levitt and Dr. Gnam as they relate to the applicant’s diagnoses of mental and behavioural impairments as a result of the accident and how those diagnoses affected her functioning at the time of their assessments in 2025.
77I find that the applicant’s testimony did not provide me with the details of her symptoms and how they affected her ability to work during the relevant period, commencing in March 2020. Her testimony regarding that time was vague, and in particular did not provide any details regarding why it took the applicant four years to complete her two-year nursing diploma. While she testified that she “had to leave” three times and it took her four years to complete a two-year program, she did not testify that this was due to her symptoms or impairments. In addition, she acknowledges travelling to Kashmir at least twice during this period, once to get married.
78Further, while the applicant testified that she was unable to complete the practicum portion of the program, I find that this is unlikely to be the case as she acknowledges that she received her diploma. In addition, she did not testify with respect to what aspects of a nursing job, or a more sedentary business or office job, she felt she could or could not tolerate as a result of her impairments.
79In addition, the respondent directed me to the CNRs of Dr. Chohan, the applicant’s treating psychiatrist, which indicated the applicant was doing relatively well in 2020. Between 2019 and mid 2021, the applicant regularly reported to Dr. Chohan that her medications were helping to regulate her mood. I give weight to the opinion of Dr. Jwely that the applicant’s symptoms from her mental and behavioural disorders have varied in severity over the years since the accident. I accept that at times since the accident, and specifically in 2020, some of the applicant’s symptoms were quite well controlled by medication and she was functioning well enough during this period of time to undertake a nursing program.
80In contrast, Dr. Stelmaschuk, Ms. Manivong and Dr. Pachet conducted a multi-disciplinary assessment of the applicant dated February 26, 2020 and concluded that she did not meet the post-104 week test for an IRB at that time. Dr. Stelmaschuk testified at the hearing that he conferred with his co-assessors after they each completed their assessments and he remained confident in his opinion.
81Dr. Stelmaschuk opined that the applicant did not meet the test for an IRB on the basis of her physical impairments. I note that Dr. Pachet was unable to consider the applicant’s psychometric test results due to validity concerns. The consensus of the three experts was that there was no evidence of an impairment that caused the applicant to meet the post-104 week test at that time. The applicant did not take the position that her symptoms deteriorated significantly at some point after March 9, 2020.
82I give more weight to the opinion of Dr. Stelmaschuk as the multi-disciplinary assessment considered the post-104 week IRB test, whereas Dr. Levitt and Dr. Gnam did not engage with this test. In addition, the applicant did not provide detailed evidence or testimony respecting how her symptoms affected her ability to work, or refer me to any expert vocational evidence.
83As a result, I find that the applicant has not proven, on a balance of probabilities, that she is entitled to an IRB from March 9, 2020.
Interest
84Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits payable, therefore the applicant is not entitled to interest.
ORDER
85I find that:
i. The applicant is not CAT;
ii. The applicant is not entitled to an IRB; and
iii. The applicant is not entitled to interest.
Released: April 27, 2026
Caley Howard
Adjudicator