Licence Appeal Tribunal File Number: 24-014636/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:
[SC] (By their litigation guardian, [AC])
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Mohamed A. Doli, Counsel
Abdihamid Mao, Counsel
For the Respondent:
M. Greg Abogado, Counsel
Christian Farahat, Counsel
Court Reporter:
Prashanth Thambipillai
HEARD by Videoconference:
October 6, 7, 8, 9 and 10, 2025
OVERVIEW
1[SC] (the “applicant”) was involved in an automobile accident on May 19, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Certas Direct 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 attendant care benefits (“ACB”) in the amount of $6,000.00 per month from November 3, 2020 to date and ongoing?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant has not established that she sustained a catastrophic impairment as defined by the Schedule.
4The applicant is not entitled to ACB or interest.
5The application is dismissed.
PROCEDURAL ISSUES
Respondent’s motion to strike award claim granted
6At the start of the hearing, the respondent brought a motion seeking an order to strike her special award claim under s. 10 of Reg 664 (the “award claim”) due to not providing sufficient particulars of the award claim. The case conference report and order dated April 7, 2025 (the “CCRO”) required the log notes to be provided to the applicant no later the 45 days after the case conference, and for the applicant to provide the respondent with particulars of the award claim not later than 30 days after receipt of the adjuster’s log notes. There is no dispute that these documents were provided in a timely manner. However, the respondent argues that while the applicant provided a document dated June 9, 2025 titled “Grounds for Award”, it consisted of a single generic sentence that did not set out the particulars of the award claim. Such document stated: “Respondent refused, denied and/or withheld to pay for crucial services such as attendant care when it known or ought to have known the applicant was catastrophically impaired and was in dire need of Attendant Care service without which her life was peril.”
7The respondent submitted that the document provided by the applicant does not amount to providing particulars of the award claim and thus does not comply with the CCRO. The respondent argued that despite providing comprehensive log notes covering a period of more than 10 years, the applicant did not identify any act or omission by the respondent that shows an unreasonable delay or withholding of benefits. The respondent submitted that the purpose of providing particulars is make the respondent aware of the case it has to meet and that it would cause irreparable prejudice if the applicant was permitted to proceed with her award claim without providing adequate particulars.
8The applicant argued that she did not want to use up the hearing time on this motion. I asked the applicant if there was anything she wanted to add with regards to the adequacy of the particulars provided. The applicant advised that the particulars would become apparent after hearing the facts from both parties and the closing submissions.
9I granted the respondent’s motion to strike the award claim. I find that the document provided by the applicant on June 9, 2025 consisting of a single sentence, does not amount to providing particulars of the award claim as required in accordance with the CCRO. The applicant’s argument that the particulars would become apparent after hearing the evidence and closing submissions, suggests that she recognizes that particulars of the award claim have not been provided in advance of the hearing. Without proper notice of the details of the claim, the respondent is prejudiced as it does not know the claim it must meet and have an opportunity to prepare its response to the particulars of the award claim. It is well established that a party has the right to know the case. The onus is on the applicant to put forward their case, in accordance with the Licence Appeal Tribunal Rules, 2023 (“Rules”) and in compliance with the CCRO. I find it would be a breach of procedural fairness to the respondent to allow the applicant to proceed with the award claim without the particulars being produced in advance of the hearing. Therefore, the award claim is struck as an issue in dispute at this hearing.
Amendment to applicant’s witness list allowed
10The parties agreed to have Ms. Inna Rozenfeld, occupational therapist, called as a witness of the applicant. This was done at the request of the respondent, as it wished to cross-examine Ms. Rozenfeld on her report. The applicant confirmed that Ms. Rozenfeld was included in her list of witnesses in the CCRO, but not in the applicant’s final witness list of six witnesses.
11I consented to Ms. Rozenfeld being called as a witness by the applicant. Although this resulted in the applicant having seven witnesses, being one additional witness beyond the limit set in the CCRO, the respondent had correspondingly reduced its witnesses by one, as it no longer intended to call the adjuster due to the award claim no longer being an issue at the hearing. As this resulted in no change to the total number of witnesses and the parties agreed to these changes, I find that the amended witness list allows for an efficient and timely resolution of the merits of the hearing.
ANALYSIS
Background
12On May 19, 2014, the applicant was the driver of a vehicle involved in a single vehicle accident around midnight while travelling on Highway 401 from Ottawa to Toronto. There was one passenger in the vehicle, the applicant’s daughter who was eight years old at that time and seated in the front passenger seat. The applicant was unable to control the vehicle, possibly due to the steering wheel losing power, causing it to travel to the right lane and hit the median and land in a ditch on the right side. Only the passenger side airbag deployed. There was no loss of consciousness of the applicant. Emergency responders attended at scene. The applicant attended a nearby hospital in Napanee, Ontario, where her daughter was assessed and discharged the same night with no recommendations. The applicant was not assessed by the doctors at the hospital. The applicant and her daughter returned home the next day by train.
13Initial injuries to the applicant consisted of pain in the right side of her neck, shoulder, back, hip and ankle. Over time she developed a worsening of her pre-accident anxiety symptoms, and chronic pain. Past medical history consists of a previous motor vehicle accident eight months earlier in September 2013, which she sustained injuries including chronic right-side pain, including right shoulder pain, right hip pain, neck pain, back pain; and anxiety. She was diagnosed with myofascial pain syndrome.
The applicant has not sustained a catastrophic impairment as defined by the Schedule
14I find the applicant has not established that she has sustained a catastrophic impairment as a result of the accident for the reasons that follow.
15The applicant seeks a catastrophic (“CAT”) impairment determination under s. 3(2)(e) and (f) of the applicable version of the Schedule (i.e. prior to the 2016 amendments) as the accident occurred before June 1, 2016, referred to as Criteria 7 and 8, respectively, as a result of her accident-related impairments. The applicant bears the burden of proof.
16In her submissions, the applicant made reference to seeking a CAT impairment determination under s. 2(1.1) (f) and (g) of the Schedule. Although not addressed by the parties, the section references appear to relate to O. Reg. 403/96 (defined in the Schedule as the “Old Regulation” prior to the 2010 amendments) which is not applicable to this application, as the accident occurred after September 1, 2010. While the legal tests remain the same, I have cited the correct sections for Criteria 7 and 8 above.
CAT threshold under Criterion 8
17In order to meet the threshold for CAT status under Criterion 8, an individual must have sustained at least one marked (class 4) impairment 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 Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “Guides”).
18Mental 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: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
19The four spheres of functioning, five 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) |
20The applicant submits that she sustained a CAT impairment under Criterion 8. She relies on the CAT Executive Summary Report dated July 2, 2021, commissioned by Humber River Medical Diagnostics (“HRMD”). The assessments were completed by [a doctor]; Dr. Karen Abrams, psychiatrist; and Ms. Inna Rozenfeld, occupational therapist (“OT”). [A doctor] prepared the HRMD summary report. Dr. Abrams diagnosed the applicant with Somatic Symptom Disorder with Predominant Pain; Persistent Post-traumatic Stress Disorder (“PTSD”); Bipolar Disorder 1 - currently in major depressive episode; and Attention Deficit Hyperactivity Disorder (“ADHD”). Dr. Abrams rated the applicant with a marked impairment under all four spheres of functioning.
21The respondent submits that the applicant has not proven that she suffers a CAT impairment under Criterion 8 because the impairments are not accident-related, i.e. due to lack of causation. The respondent relies on the CAT insurer’s examination (“IE”) Integrated Impairment Rating Report dated November 16, 2022, commissioned by Viewpoint. The IE assessments were completed by Dr. Alborz Oshidari, physiatrist; Dr. Shreekant Sharma, psychiatrist; and Mr. Ronald Findlay, OT. Dr. Oshidari prepared the Viewpoint summary report. Dr. Sharma diagnosed the applicant with Chronic Pain Disorder with both psychological factors and general medical condition (partially related to subject accident); Bipolar Mood Disorder type I currently depressed, severe, chronic with a differential diagnosis of Schizoaffective Disorder Bipolar type (unrelated to subject accident); Attention Deficit Disorder (unrelated to subject accident); and Learning disability as diagnosed after psychometric testing (unrelated to subject accident). Dr. Sharma found the applicant to have a marked impairment under all four spheres of functioning, however, he rated the applicant’s accident-related contribution as a mild impairment under all four spheres of functioning.
22The parties agree that causation is the basis of the dispute for Criterion 8. Therefore, before I determine whether or not the applicant meets the threshold for CAT under Criterion 7 or 8, I will first address the issue of causation.
Did the accident cause the applicant’s impairments?
23I find that applicant has not established that the accident was a necessary cause of the psychological impairments that the applicant puts forth as the basis for her CAT application under Criterion 8.
24It is well established law that the appropriate test to determine causation in 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 (“Sabadash”). 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. The Court in Sabadash set out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. The court further instructs the decision maker to conduct a robust and pragmatic analysis, given the unique circumstances of the case at hand.
25The applicant argues that the accident materially contributed to her psychological impairments. She argues that she did not have any pre-accident psychological issues that prevented her ability to function. The applicant submits that, at the time of the accident, she had no functional impairments from the prior accident in September 2013. She argues that the accident and post-accident factors materially increased her vulnerability to psychological impairments. I note, however, the applicant reported that she did not believe she was fully recovered from the September 2013 accident injuries at the time of the subject accident in May 2014.
26The applicant submits that the “material contribution” test for causation is the applicable test in this matter, as set out in Monks v. ING Insurance Co. of Canada (2008), 2008 ONCA 269, 90 O.R. (3d) 689 (C.A.) (“Monks”). The applicant argues that once material contribution is determined, the impairments become indivisible. I disagree that Monks is the applicable test for me to consider. As I noted above, the “but for” test in Sabadash is established as the test to be applied in accident benefit cases. Sabadash does discuss Monks, and makes it clear that the material contribution test only applies as an alternate test in exceptional circumstances involving more than one tortfeasor and the plaintiff, through no fault of their own, is unable to show that one of them is the “but for” cause of their injuries. I find the applicant has not demonstrated that such exceptions are applicable here. The applicant did not argue that the material contribution test should be applied as an exception, but rather that it is the operative test to be considered in this matter. Further, the applicant did not make any submissions on whether she satisfied the “but for” test, or otherwise direct me to evidence to establish that but for the accident she would not have suffered the psychological impairments which form the basis for her application for CAT status.
27The respondent argues that the applicant’s pre-accident medical history is significant, and that the accident did not cause the applicant’s psychiatric impairments, beyond mild impairments. The respondent concedes that the applicant has significant impairments, as the psychiatric IE assessor, Dr. Sharma, found her to have a marked impairment in all four spheres of functioning. However, it notes that Dr. Sharma is of the view that her current impairments are minimally related to the accident, and rated her accident-related contribution as a mild impairment under all four spheres.
28The respondent argues that the applicant has a history of physical and psychological issues that predate the accident. She experienced various traumatic life events including childhood abuse leading her to leave her house and move into a shelter, and later in life being in a physically abusive relationship with her ex-common law husband. She was involved in a prior automobile accident on September 12, 2013, approximately eight months before the subject accident, in which she sustained physical and psychological injuries. In addition, post-accident she was diagnosed as having bipolar disorder, a primary psychiatric disorder not related to the accident. The respondent also relies upon surveillance evidence in support of its position.
29For the reasons that follow, I find that applicant has not established that the accident was a necessary cause of the applicant’s psychological impairments and resulting functional limitations which forms the basis for her application for a CAT determination under Criterion 8.
30In analyzing causation, it is necessary to compare the applicant’s pre- and post- accident life to determine to what extent any accident-related impairment affected her ability to function. The applicant did not testify. The applicant’s mother (who serves as the applicant’s litigation guardian) provided the following testimony regarding the applicant’s pre-accident life and activities:
a) She was independent in carrying out his housekeeping and home maintenance tasks such as meal preparation, grocery shopping, laundry, snow removal and gardening.
b) She was the primary caregiver for her daughter. She would take her daughter to various extracurricular activities.
c) She was physically active and enjoyed running and going to the gym.
d) She had no issues socializing.
e) She was independent with personal care tasks.
f) She was independent with driving and did not have any issues with mobility or accessing the community.
g) She enjoyed travelling and going on trips to Niagara Falls and Montreal.
31The applicant’s daughter provided the following testimony regarding the applicant’s pre-accident life and activities:
a) She enjoyed travelling and they would go on various road trips together.
b) Her social life consisted of friends from work.
c) She would volunteer at the school for pizza days and school field trips.
32On cross-examination, the applicant’s mother confirmed that she was aware that prior to the previous accident on September 12, 2013, the applicant worked as a recruitment consultant for two months from April to June 2013. Prior to that, she was an office administration manager at [a College] from 2011 until being terminated in January 2013. She was employed at [a College] from 2006-2013.
33The applicant’s mother indicated that she learned about the accident at some point post-accident when she found out the car was being repaired and the applicant was complaining about her back. She testified as to how the accident affected the applicant, indicating that it impacted everything, including pain in the head and pain in the back. She visits the applicant’s house in the morning and after work when she can. She also goes shopping for her.
34The applicant’s daughter testified that post-accident the applicant would mainly stay in bed most of the day and would not talk much. She testified that she had to make her own breakfast and lunch, as the applicant was unable to do so.
35I find the testimony of the applicant’s mother and the applicant’s daughter to be of limited probative value in assessing the post-accident functioning of the applicant. The testimony did not address specifics on post-accident functional limitations. As well, it was not made clear what time period post-accident the witnesses were referring to. For example, it was not clear from the testimony when the applicant began staying in bed most of the day, and whether this was in the immediate aftermath of the accident or some other time period in the eleven years since the accident.
36Further, the applicant’s employment record shows that she held various jobs post-accident, which is inconsistent with her remaining at home in bed during the entire period. This included working as a relationship manager in car sales in September 2014 and a job as an executive assistant in September 2015 until she was terminated in December 2015. The applicant’s mother acknowledged she was aware of both of these jobs, while the applicant’s daughter recalled the 2015 executive assistant job. Employment records show additional post-accident full-time jobs included a 2016 one-year contract as an office manager, in which she received a positive performance review rated above 90%. She left that job to pursue another opportunity as an administrator and marketing assistant from February 2017 until February 2018, when she went on medical leave due to social issues, feeling bullied and intimidated by her boss. For these reasons, I place little weight on the testimony of the applicant’s mother and daughter to my consideration of post-accident activities and functioning of the applicant.
37I also find the applicant’s psychological symptoms and stressors are documented pre-accident and show a number of contributing factors.
38The clinical notes and records (“CNRs”) of [a doctor], which start over two years pre-accident in March 2012, document the applicant as having extreme stress at work, worrying about financial matters, being tearful, anxiety symptoms and seeking a psychologist referral. The CNRs also document stress related to raising a child, complaints of having fatigue since 2010, falling asleep at work and in meetings, and being sleepy in the car.
39The applicant’s first visit to her family doctor post-accident was on May 22, 2014. Her complaints included poor sleep, being sad, no hobbies, decreased interest, no energy, appetite fluctuations and awful concentration. She also indicated that she worried incessantly about her finances and career. Of note, she made no mention to her family doctor of the accident that occurred three days earlier. [A doctor] assessed the applicant with depressive and anxiety symptoms and potential panic disorder. She referred the applicant to Dr. Martin Svihra, psychiatrist, with reason for referral to “query bipolar disorder vs. general anxiety disorder”.
40The applicant was seen by Dr. Svihra on June 9, 2014, three weeks after the accident. Dr. Svihra diagnosed the applicant with Generalized Anxiety Disorder, Adjustment Disorder, and recommended CBT and prescribed an antidepressant. He noted that she has a history of chronic worry/anxiety which has worsened by numerous stressors over the past two years, which the applicant reported as follows:
a) let go from job at [a College];
b) house has flooded x 3;
c) car accident x 2 (t-boned in Sept 2013 and then car apparently
malfunctioned causing it to go off 401 Hwy in May 2014);
d) financial stressors requiring her to take in tenants to her house;
e) daughter has ADHD and some behavioral issues; and
f) some conflict with parents.
41The applicant relies on Dr. Ariel Shafro, the treating psychiatrist during the applicant’s hospitalization at [a hospital] from September 16 to November 11, 2019 for psychotic symptoms. At the time of discharge, Dr. Shafro diagnosed the applicant with Bipolar 1 disorder, manic, severe with psychotic features, currently in early partial remission. He ruled out PTSD.
42In his discharge report, Dr. Shafro comments on the applicant’s “ongoing court case involving her motor vehicle accident”, and notes that as the nature of her current symptoms only developed after the accident “it is difficult for me to speculate too much on the exact development of her symptoms”. He then went on to state that he believes she developed symptoms of PTSD as a direct result of her motor vehicle accidents, in particular the subject accident. He stated that it is “even possible” that the accident and ensuring trauma placed the applicant at a higher risk of developing her bipolar illness. In his testimony, Dr. Shafro explained that at the time he assessed the applicant she did not meet the criteria for PTSD. Rather, he was referring to his belief that she had developed PTSD symptoms in the past.
43I do not find Dr. Shafro’s opinion on causation to be persuasive for the following reasons. Firstly, in cross-examination he acknowledged he did not recall reviewing any medical records or documents other than what was on file at the hospital, and relied solely on the applicant’s reporting of her history. He ruled out PTSD at the time of discharge in November 2019, yet states that he believes the applicant had previously developed symptoms of PTSD as a direct result of the accident. The accident was five years before he saw her. In coming to this opinion on past PTSD symptoms, he did not document reviewing medical records such as the CNRs of the family doctor or Dr. Svihra, the psychiatrist who assessed the applicant shortly after the accident. In addition, while well-intended, I find his opinion to be guarded and speculative. While Dr. Shafro indicated in both his discharge report and in his testimony that it is difficult for him to speculate on cause, he goes on to speculate to mention a possibility that the accident and ensuing trauma could have placed the applicant at higher risk for developing bipolar disease. Consequently, I have given little weight to Dr. Shafro’s opinion on causation.
44The applicant further relies on the s. 25 CAT psychiatric report of Dr. Abrams to support that the accident was the cause of her psychological impairments. I do not find this report to be persuasive on the issue of whether the accident caused her psychological impairments. The only discussion on this issue is found in a sentence at the end of the report, where Dr. Abrams states that it appears the accident has contributed to a multitude of psychological symptoms and impairments that preclude the applicant’s useful functioning. She does not offer a discussion in her report or provide an opinion on how and to what extent the accident contributed to the impairments which form the basis of the application for CAT status. In addition, she does not address whether the diagnoses of bipolar and ADHD are accident-related. Finally, she did not reconcile how she came to a diagnosis of PTSD seven years post-accident when Dr. Shafro two years earlier (and five years post-accident) found that the applicant did not meet the criteria for PTSD. As a result, I find that this does not assist in my consideration on the issue of causation and I give little weight to Dr. Abrams’ report.
45In contrast, I prefer the IE report of Dr. Sharma as it discusses that three of his diagnoses, the primary psychiatric disorder of Bipolar type 1, as well as attention deficit disorder and learning disability, are disabilities unrelated to the subject accident. In his testimony, Dr. Sharma explained that since Bipolar is classified as a primary severe disorder, this means that it is not cause by an external event, such as a motor vehicle accident. Further, that attention deficit disorder is a neurodevelopmental disorder that is genetically determined and does not occur for the first time in adult life.
46Dr. Sharma opined that the only diagnosis partially related to the accident is Chronic Pain Disorder with both psychological factors and general medical condition. He found that her presentation at the time of the assessment had very little to do with the subject accident, based on her being in a prior accident in September 2013 that resulted in injuries, pre-existing symptoms of depression and anxiety which may have been exacerbated by the accident but was of little to no relevance eight years post-accident. He also noted that, despite these symptoms, the applicant was able to secure employment in various jobs post-accident between 2016 to 2018, including two jobs that were each approximately one year consecutively.
47The surveillance evidence relied upon by the respondent from both 2018 and May 2022 shows the applicant engaging independently in various activities. This contrasts with the IE assessment conducted by Dr. Sharma two months later in July 2022, where the applicant was accompanied by a helper who assisted her in walking to the examination room. Dr. Sharma reported that the applicant was unable or unwilling to give him much information, answering most questions with “I don't know”.
48Over the course of three days in 2018, the applicant is observed leaving her house on her own, walking her dog in the neighbourhood at a moderate pace without any assistive aids. She was also observed independently navigating a four hour, multi-transit roundtrip from her home in [a city] to Midtown Toronto and back. She was regularly using her cell phone and appeared to be engaged in texting or other communications. On another day in 2018, the applicant was observed taking a bus to Avis Car Rental. The following day she is seen leaving her house with her daughter in a car, and driving her daughter to school.
49Surveillance from May 2022 over the course of four days found the applicant driving, shopping and filling up her car with gas. On one occasion she was observed departing her home late morning, driving on the QEW highway to [a dental clinic], where she remained for approximately 8 hours. She is seen leaving the dental clinic around 7:30pm wearing black medical scrubs and a mask. She is speaking in the parking lot with two women who leave the clinic at the same time, and appear to be co-workers who are socializing and smiling at times. On a separate day, video shows her again leaving the same [ dental clinic] after 7:30pm in similar medical scrubs. She was then observed at [a mall], shopping at various stores, carrying bags with purchases on both shoulders, then driving on the QEW after 9pm, stopping at a TD bank, before returning to the area of her home.
50While I appreciate that surveillance is a snapshot in time, the surveillance taken over a number of days shows a level of functioning in activities, including accessing the community through driving, public transit, shopping, walking and interacting with people in stores and elsewhere. This level of functioning by the applicant is inconsistent with her presentation to Dr. Sharma, where she presented as being unable or unwilling to participate in the assessment.
51In considering the evidence and submissions of the applicant, the lack of engagement with the applicable test to determine causation as set out in Sabadash has resulted in not being directed to evidence to establish that “but for” the accident she would not have suffered the psychological impairments which form her application for CAT status.
52For all of the above reasons, I find that the applicant has not met her onus in proving on a balance of probabilities that “but for” the accident, she would not have sustained a psychological impairment and resulting functional limitations which forms the basis for her CAT application under Criterion 8. Therefore, the test for causation as it relates to the applicant’s psychological impairments that are the basis for her application under Criterion 8 has not been met.
53I will now consider the applicant’s claim under Criterion 7.
The applicant does not meet the CAT threshold under Criterion 7
54To qualify for CAT status under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairments as a result of the accident from medical professionals that meet the 55 per cent or more whole person impairment (“WPI”) threshold, in accordance with the Guides. The psychological impairment, excluding traumatic brain injury, is determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the Guides, 6th Edition, 2008. The physical impairment or combination of physical impairments ratings are determined in accordance with the Guides, 4th Edition, 1993. When combined using the Combined Values Table, the ratings must result in 55 per cent or more WPI.
55To obtain the WPI% rating under Chapter 14, three scales are administered by assessors to determine a person’s score which include: The Brief Psychiatric Rating Scale (“BPRS”); The Global Assessment of Function (“GAF”); and The Psychiatric Impairment Rating Scale (“PIRS”). The median score is then taken from the three scales and represents a person’s total WPI% from a psychological perspective.
56The applicant submits that she sustained a CAT impairment under Criterion 7. She relies on the s. 25 CAT Executive Summary report dated July 2, 2021, commissioned by HRMD. The HRMD assessors determined that the applicant had a 66% WPI under Criterion 7, when physical and mental/behavioural impairments are combined.
57The respondent submits that the applicant has not proven that she suffers a CAT impairment under Criterion 7 and relies on the IE CAT Integrated Impairment Rating Report dated November 16, 2022, commissioned by Viewpoint. The Viewpoint assessors determined that the applicant had a 14% WPI under Criterion 7 for mental/behavioural impairments, and Dr. Oshidari found the applicant’s physical impairments are not ratable under Criterion 7 due to inconsistencies and non-organic findings.
58Dr. Oshidari reported that the assessment lasted only 15 minutes and was limited due to the applicant not being able to provide any information regarding her medical history. Her responses to all his questions were that she does not recall any events. She was unable to recall if she was seen by any doctor after the accident or received any treatment in the past. Dr. Oshidari noted that the assessment was almost impossible due to the applicant’s presentation. She was accompanied by a PSW and required her assistance to stand from a sitting position and to walk. He concluded that the assessment was positive for numerous inconsistencies and nonorganic findings, and there was no specific neurological or musculoskeletal condition that explains her presentation and limitations on function.
59The following chart summarizes the WPI ratings assigned by each parties’ assessors under Criterion 7. My findings in relation to each and the rationale for my findings follow.
| AMA Guides 4th Ed. | Applicant’s CAT Ratings Summary | Respondent’s CAT Ratings Summary | Tribunal CAT Ratings Summary |
|---|---|---|---|
| Physical Impairments | |||
| Headache Chpt. 4, Table 9 |
Dr. Gupta 30% |
Dr. Oshidari Not ratable 0% |
0% |
| Spine Cervicothoracic Thoracolumbar Total Chpt. 3, Tables 73 and 74 |
Dr. Gupta 5% 5% 10% |
Dr. Oshidari Not ratable 0% |
5% |
| Shoulder pain | Dr. Gupta 9% |
Dr. Oshidari Not ratable 0% |
5% |
| Total WPI Combined Values Chart: | 43% | Not ratable 0% |
10% |
| AMA 6th Ed. Mental and Behavioural Disorders | |||
| Emotional and Behavioural Impairments 4th Ed. Chpt. 4, Table 3 |
Dr. Abrams 40% |
Dr. Sharma 14%^(1) |
0% |
| TOTAL CRITERION 7 COMBINED RATING | |||
| Total WPI Criterion 7 Combined Values Chart: | 66% | 14% | 10% |
Note: (1) Dr. Sharma assigned an overall rating of 51% WPI based on the applicant’s presentation at time of assessment, and reduced the rating to 14% WPI based on his opinion that the accident contributed in a mild degree to her current emotional and behavioural impairments. I address this under the heading Emotional and Behavioural Impairments below.
60Headache. Dr. Gupta provided a rating of 30% WPI for headaches using Chpt. 4 Table 9, noting severe post-traumatic headache with features of phonophobia (sound), photophobia (light), dizziness and nausea, conforming with criteria for chronic migraine. Dr. Oshidari noted that headaches are not considered a permanent impairment under the Guides, and can only be rated if the patient has occipital neuralgia. Dr. Oshidari explained that sometimes impairment ratings are provided by analogy of up to 5% each side if not combining physical and mental behavioural disorder, and noted that there is no documentation from a neurologist discussing migraine headaches as a result of the accident. Table 9 provides a rating scale for impairments of cranial nerve V. I find the applicant has not directed me to evidence of any impairment to this nerve. In addition, there are not any reports of headaches by the applicant in the CNRs of Dr. Moaveni, nor any prescriptions to manage headaches at any time post-accident. Therefore, I place little weight on this rating relied on by the applicant and assign 0% WPI.
61Spine and Shoulder Pain. Dr. Gupta’s rating does account for apportionment for existing impairments, as required in not follow the Guides at Chpt.2, s. 2.3. Dr. Oshidari noted that from the prior accident in 2013, there was neck, back and shoulder pain and the symptoms had not resolved by the time of the subject accident. The applicant submits that a deduction for pre-existing injuries is contrary to Monks. I do not agree as Monks is a decision relating to causation. The parties are not disputing causation as it relates to the applicant’s physical injuries, and therefore the reference to this case does not apply to the analysis here.
62While I agree with Dr. Oshidari that pre-existing impairments are required to be subtracted from the current impairments under the Guides, I not find a 100% deduction to be appropriate to account for the subject accident and have applied a partial deduction for spine and shoulder. Pre-accident medical records, in particular the CNRs of Dr. Moaveni which include a consultation report from Dr. Julia Alleyne, Toronto Rehabilitation Institute sports medicine referral, indicate the applicant complained of right-side pain, including right back and shoulder pain from the September 2013 accident that were aggravated by her injuries from the subject accident. I also note that there were only two complaints of physical pain to her family doctor in 4.5 years post-accident, with the applicant attributing pain in her right shoulder and leg to the repetitive motion of typing at work. For these reasons, I have assigned a total rating of 5% WPI for spine and 5% WPI for shoulder pain.
63Emotional and Behavioural Impairments. Given my finding above on causation, it follows that no WPI rating is applied for emotional and behavioural impairments. As indicated in the note to the above chart, Dr. Sharma assigned an overall rating of 51% WPI based on the applicant’s presentation at time of assessment more than 8 years post-accident, and reduced the rating to 14% WPI based on his opinion that the accident contributed in a mild degree to her current psychological impairments. He opined that the only diagnosis partially related to the accident is Chronic Pain Disorder with both psychological factors and general medical condition. Even if I accept the 14% WPI rating, the applicant would not meet the Criterion 7 threshold.
64As a result, when added up in accordance with the Combined Values Chart in the Guides, the applicant’s total rating under Criterion 7 is 23% WPI. Consequently, I find she does not meet the 55% WPI CAT threshold under Criterion 7.
The applicant is not entitled to ACB in the amount of $6,000.00 per month from November 3, 2020 to date and ongoing
65I find the applicant has not established entitlement to ACB in the amount of $6,000.00 per month from November 3, 2020 to date and ongoing.
66Section 19 of the applicable version of the Schedule prior to the 2016 amendments states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
67The maximum payable for ACB under the Schedule is $3,000.00 per month for a non-CAT impaired insured person. If the insured person suffered a CAT impairment as a result of the accident, the maximum limit rises to $6,000.00 per month.
68Section 19(3)2 limits the amount of the ACB paid, for any one accident, to $36,000.00, unless the person has sustained a CAT impairment, in which case the limit is set $1,000,000.00.
69Section 20(2) provides that for a non-CAT impaired person no ACBs are payable for expenses incurred more than 104 weeks after the accident. Such limitation does not apply if the person has sustained a CAT impairment.
70Section 3(7)(e) provides that to meet the definition of incurred the following three criteria must be satisfied:
i. The applicant received the service to which the expense relates;
ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and
iii. The person who provided the service:
a) did so in the course of his or her employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident; or
b) sustained an economic loss as a result of providing the goods or services to the insured person.
71On the basis that I have found the applicant has not suffered a CAT impairment as defined by the Schedule, it follows that no ACB is payable for expenses incurred more than 104 weeks after the accident. May 16, 2016 was 104 weeks after the accident. The ACB that the applicant is seeking is from November 3, 2020, which is after the 104 weeks date of May 16, 2016. As such, I find the applicant is not entitled to ACB for the period claimed.
72In addition, I find the applicant is not entitled to ACB for the period claimed because she did not direct me to evidence that ACB expenses have been incurred pursuant to s. 3(7)(e) of the Schedule. The applicant did not direct me to the test for ACB or her position on how she qualifies for the benefit in dispute.
73Further, I am not persuaded by the January 18, 2020 s. 25 occupational therapy in-home assessment report of Ms. Inna Rozenfeld, occupational therapist. Despite the report being titled as an in-home assessment, Ms. Rozenfeld testified that the actual assessment was conducted entirely by telephone due to the applicant being unavailable for an in-person assessment without her sister present. Ms. Rozenfeld acknowledged in her testimony that she was unable to make any observations about the applicant’s ability to function, as the assessment was conducted by telephone. Ms. Rozenfeld also confirmed that she did not review any medical documentation for purposes of preparing her report, and that she relied on the applicant’s reporting of her symptoms and level of functioning. The Form 1 was prepared by Ms. Rozenfeld, who made her recommendations for attendant care needs without testing or observing the applicant’s ability to perform the functions she was reporting on. As such, I give no weight to Ms. Rozenfeld’s recommendations for attendant care needs.
74Accordingly, I find on a balance of probabilities that the applicant has not met her onus of demonstrating entitlement to ACB.
Interest
75Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
ORDER
76For the reasons outlined above, I find that:
i. The applicant has not sustained a catastrophic impairment as defined by the Schedule;
ii. The applicant is not entitled to ACB or interest; and
iii. The application is dismissed.
Released: January 19, 2026
__________________________
Henry Harris
Vice-Chair