Citation: O'Keefe-Burns v. Primmum Insurance Company, 2026 ONLAT 25-008194/AABS

Licence Appeal Tribunal File Number: 25-008194/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:

Shannon O'Keefe-Burns

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Samia Alam, Counsel

For the Respondent:

Philip Byun, Counsel

Court Reporters:

Guido Riccioni (March 30, and 31, and April 1, and 2, 2026)

Prashanth Thambipillai (April 7, 2026)

HEARD by Videoconference:

March 30, 31, and April 1, 2, 7, 2026

OVERVIEW

1Shannon O'Keefe-Burns, the applicant, was involved in an automobile accident on February 12, 2020, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Issues in Dispute

PRELIMINARY ISSUE

2The preliminary issue in dispute is:

i. Is the applicant barred from proceeding to a hearing for attendant care services because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule? Criteria 7 and 8.

ii. Is the applicant entitled to $44,961.89 for attendant care services, submitted on a claim form (“OCF-6”) dated June 24, 2022, and denied on June 29, 2022?

iii. Is the applicant entitled to $1,650.00 for hearing aids, submitted on an OCF-6 on July 15, 2024, and denied on September 4, 2024?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. 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

4For the reasons that follow, I find:

i. The applicant is barred from proceeding to a hearing for attendant care services because the applicant failed to dispute their denial within the 2-year limitation period.

ii. The applicant has sustained a catastrophic impairment as defined by the Schedule.

iii. The applicant is not entitled to $1,650.00 for hearing aids, submitted on an OCF-6 submitted July 15, 2024, and denied on September 4, 2024.

iv. There is no interest owing.

v. The respondent is not liable to pay an award under s. 10 of Reg. 664.

PROCEDURAL ISSUES

Motions to exclude CAT reports, Surveillance, and Expert Witness

Addendum CAT Reports

5On March 12, 2026, the applicant filed a motion to exclude the respondent’s addendum CAT reports dated January 13, 2026, and served on the applicant on January 28, 2026. The motion was brought on the grounds that the reports were late filed because they are not in compliance with the case conference report and order (“CCRO”) dated October 7, 2025.

6The Tribunal ordered that the motion would be heard at the start of the hearing.

7The respondent submitted that the release of the reports were delayed in part because the applicant did not attend two previously scheduled Insurer’s Examination Otolaryngology (“ENT”) CAT assessment (“IE”) and the IE was completed in September 2025. The CAT reports are not released in isolation, but rather as part of multi-disciplinary assessment reports. The reports are dated January 13, 2026, and were provided to the applicant shortly after receipt. The respondent further submits that it cannot serve what it has not received because the reports were in the possession of the assessors.

8I find that in the CCRO, the deadline for exchange of all documents and things not previously exchanged but which they intend to rely on as evidence at the hearing, was agreed by the parties to be exchanged 75 days after the case conference, on December 10, 2025. I find that the reason for non-compliance, being that the documents were not within the party’s possession, results in the parties being required to make best efforts to meet the deadlines. Also, the applicant did not mitigate potential prejudice by filing a motion for a Production Order when the CAT reports were not served in compliance with the CCRO, rather she waited until two and a half weeks prior to the hearing, to file a motion for their exclusion. I find that having been served within two weeks after receipt, more than three months in advance of the hearing, the applicant has had ample time to review the reports and prepare for cross-examination of the authors. I decline to order the exclusion of the addendum reports.

Surveillance

9On the morning of the hearing, the applicant raised a motion to exclude the surveillance evidence on the grounds that it has little probative value, and not all of the applicant’s assessors have had an opportunity to view the videos. Further, the applicant submitted that the surveillance is not relevant to the issues in dispute. The addendum reports were based on the respondent having provided the CAT assessors with the surveillance videos. The surveillance had been in the possession of the respondent since 2023 and 2024, yet was only provided to the assessors for these addendum reports. The applicant has not had an opportunity to provide the surveillance to her own assessors for their addendum reports.

10The respondent submitted that the applicant had possession of 2 of the 3 surveillance videos for over a year. The third video was disclosed in compliance with the CCRO. The applicant did have the opportunity to request addendum reports from her own assessors, without the respondent’s addendum reports.

11I find that the respondent did provide the applicant with the surveillance videos, the substance of which was within her knowledge, and the applicant had the opportunity to seek addendum reports from her own assessors. I find that the surveillance videos are presumptively relevant to the issues in dispute, and they are considered in the experts’ reports. I decline to exclude the surveillance videos from evidence.

Expert Witness

12On March 29, 2026, the applicant filed a motion to exclude all of the IE Otolaryngology CAT assessment reports and testimony of Dr. Mark Korman, Otolaryngologist, on the grounds that the reports were late filed, and he has breached his duty as an expert witness by advocating against the applicant. These reports were also served on the applicant on January 28, 2026.

13The respondent submitted that Dr. Korman did not advocate, he provided his expert opinion. He also did not comment outside of his own scope of expertise; he made reference to other experts’ reports. Further, Dr. Korman does not provide an explanation on causation. It is the applicant’s onus to prove.

14I find that the applicant has not challenged Dr. Korman’s credentials as an expert, and I find that his education, training and experience does rise to the level of an expert in otolaryngology, and he may testify as an expert. I also find it is most appropriate for Dr. Korman’s report to be challenged in cross-examination. The respondent may rely on the CAT addendum reports and Dr. Korman may testify.

15The parties were invited to make submissions as to weight of Dr. Korman’s evidence in their closing arguments.

Challenge of Expert Witnesses

16On the morning of the hearing, the applicant filed notices under Rule 10.4, challenging the respondent’s expert witnesses, Dr. Oleg Safir, Orthopaedic Surgeon, Dr. Ben Meikle, Physiatrist, and Dr. Lawrence Tuff, Neuropsychologist.

17The applicant submits that Dr. Safir was added to the motion in error.

18The applicant submits that Dr. Meikle did not personally assess the applicant. Also, Dr. Meikle did not “supervise” Dr. Tuff who is not a medical doctor. Dr. Tuff is the only one who provided WPI ratings for the applicant’s mental health, and Dr. Meikle blindly adopted Dr. Tuff’s rating. Thus, the methodology is fundamentally flawed. Further, Dr. Tuff’s notes are incomplete and in violation of the CCRO.

19The respondent submits that the Rule 10.4 challenges were due 21 days prior to the hearing and were submitted on the morning of the hearing. Further, the applicant may cross-examine the witnesses both of whom are scheduled to attend.

20I have not heard persuasive submissions as to why Dr. Meikle’s and Dr Tuff’s credentials do not rise to the level of an expert witness. Both witnesses will be permitted to testify as expert witnesses. I find the grounds submitted by the applicant in challenge of the doctor’s reports are not persuasive to exclude the reports because disagreeing with the conclusions is not grounds to exclude, but rather are best put to the witnesses in cross-examination. The parties were invited to make submissions in their closing statements as to the weight that should be given to each. I ordered that the witnesses will be permitted to testify.

21In the course of the hearing the parties agreed that Dr. Meikle and Dr. Safir would not be called as witnesses.

Exclusion of Applicant during Spouse’s Testimony

22On the first day of the hearing, due to his limited availability, Dr. Shahazad Shahmalak, Psychiatrist testified. On the second day of the hearing, the applicant’s spouse was scheduled to testify as the second witness. The applicant was scheduled to testify on the third day.

23The parties agreed that witnesses are to be excluded from observing testimony of other witnesses, however the applicant sought to be present during her spouse’s testimony. The respondent objected. The applicant submitted that it was her right to be present and hear the case against her, including all witness testimony. Further, an expert witness has already testified, and she was present for his testimony.

24The respondent submitted that the applicant should not be present for her spouse’s testimony, and she should be excluded.

25I encouraged the applicant to reconsider the order in which the witnesses were being called. As I understand, the spouse’s testimony is for the purpose of corroborating the applicant’s own testimony. Simply calling the applicant to testify prior to her spouse would alleviate potential credibility concerns.

26The applicant maintained the order in which her witnesses were being called.

27I ordered that unless the applicant’s testimony was complete, the applicant was to be excluded during her husband’s testimony. I find this does not interfere with her right to participate in the hearing. She will have an opportunity if she chooses to give her own testimony. She is not being excluded during any time when the respondent’s defence is being presented. Further, I find that a lay witness testimony is not the same as an expert witness, whose testimony is based on the four-corners of a report that has been in the applicant’s possession.

28The applicant proceeded to call her spouse as the second witness, and she was excluded until the conclusion of his testimony.

ANALYSIS

PRELIMINARY ISSUE:

29The applicant is barred from proceeding to a hearing for attendant care services because the applicant failed to dispute their denial within the 2-year limitation period.

30Pursuant to s. 56 of the Schedule, an application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

31Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) allows the Tribunal to extend a limitation period. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492, to determine if the justice of the case requires the extension:

a) A bona fide intention to appeal within the limitation period;

b) The length of delay;

c) Prejudice to the other party; and

d) Merits of the appeal.

32Manuel directs a holistic analysis of the factors where no single factor is determinative. The onus is on the applicant to establish if there are reasonable grounds for granting an extension.

Did the applicant comply with the two-year limitation period?

33I find that the applicant did not dispute the denial of benefits within the two-year limitation period.

34The respondent submits that the applicant submitted an OCF-6s for attendant care services in the amount of $44,961.89 dated June 24, 2022, and the respondent denied the benefit on June 29, 2022. The applicant did not dispute the denial until the filing of the Tribunal application on June 23, 2025, which is outside of the 2-year limitation period pursuant to s. 56 of the Schedule, and therefore the applicant is statute barred from proceeding to a hearing on this issue.

35The applicant submits that the parties had agreed that attendant care benefit (“ACB”) was reasonable and necessary, therefore the $44,961.89 for attendant care services provided by her husband should be deemed incurred pursuant to s. 3(8) of the Schedule because the denial of the expense was unreasonable.

36On June 29, 2022, in a letter of explanation of benefits, the respondent advised the following:

Please note that attendant care expenses must be incurred expenses. An incurred expense is defined as goods and services received by the insured person who has paid the expense, promised to pay the expense or are otherwise legally obligated to pay the expense. The insurer will only pay the lesser of the Form 1 amount or the actual economic loss sustained by the person providing the services if they did not do so in the course of an employment, occupation or profession for compensation. As such, we require the following information in relation to Michael O’Keefe as the correspondence listed him as the attendant care service provider.

• Pre-accident pay-stubs/income information

• Post-accident pay-stubs/income information

• Letter from employer which indicates any changes to schedule, pay, time off work, etc.

37The letter included a notice of right to dispute the insurance company’s determination of the claim for Statutory Accident Benefits.

38Based on a second letter of explanation of benefits dated September 28, 2022, it appears the applicant did correspond with the respondent on September 19, 2022, although that correspondence is not in evidence. The respondent replied advising the applicant of the correspondence dated June 29, 2022, and reiterated the above passage.

39I find that the respondent’s denial of the benefit was proper, and the applicant was advised of her right to dispute the denial, which she did not do within the required time limit. I have not been directed to evidence that the applicant provided the respondent the requested information to support economic loss of the attendant care provider.

Are there reasonable grounds for an extension of the limitation period?

40I find that there are not reasonable grounds for extending the limitation period.

41I will assess each of the Manuel factors in turn.

42The applicant did not lead evidence as to why the denial was not disputed within the 2-year limitation period. Further, the applicant did not lead evidence to support that the applicant had intended to pursue a dispute of the denial, prior to the filing of the appeal, six months after the limitation period expired.

43Based on the evidence before me, it was three years between the date of the denial and the applicant disputing the denial by filing this application.

44I have not heard submission by either party regarding prejudice.

45The applicant relies on the OCF-6s submitted by the applicant which indicates that her husband had provided care each month from February 2020 to June 2022, each in the amount of $1,550.41. There are no details provided as to the nature of the care, or expenses, or loss of income.

46I have not been directed to evidence that the applicant provided the respondent the requested information to support economic loss of the attendant care provider.

47Having considered the Manuel factors, I find that the justice of the case does not support that an extension of the limitation period should be granted.

48I find the applicant is statute barred from proceeding to a hearing on the issue of Attendant Care expenses submitted on OCF-6s on June 24, 2022, in the amount of $44,961.89.

SUBSTANTIVE ISSUES:

CATASTROPHIC IMPAIRMENT DETERMINATION

49On February 2, 2022, the applicant applied for a CAT determination under paragraphs 7 and 8 of section 3.1(1) of the Schedule, referred to as Criteria 7 and 8, respectively.

Criterion 7

50I find the applicant has a WPI of 56%, and meets the definition of catastrophically impaired pursuant to Criterion 7.

51In order to qualify under Criterion 7, the applicant must prove that she has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% WPI threshold. The psychological impairment rating is determined in accordance with the methodology set out in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides), 6th edition, 2008, and is combined with the physical WPI rating from the 4th edition of the AMA Guides using the Combined Values Table.

52The applicant submits that she has sustained a catastrophic impairment as defined by the Schedule. She relies on the multidisciplinary CAT assessment reports dated June 12, 2024, of: Dr. Tajedin Getahun, Orthopaedic Surgeon, and Executive Summary report dated September 10, 2025; Dr. Leon Steiner, Neuropsychologist; Dr. Andrew Gomez-Vargas, Neurologist; Dr. Emily Gavett-Liu, Psychiatrist; and Dr. Craig Stewart, Otolaryngologist, report dated March 3, 2025, and addendum report dated February 18, 2026. The applicant submits her Total WPI Combined rating is 67%.

53The respondent submits that the applicant’s Total WPI Combined rating is 30%, and she does not meet criterion 7 in accordance with the Schedule. The respondent relies on the Executive Summary of Dr. Ben Meikle, Physiatrist and the multidisciplinary CAT assessment reports dated November 29, 2022, of: Dr. Oleg Safir, Orthopaedic Surgeon; Dr. Lawrence Tuff, Neuropsychologist; Dr. Nagib Yahmad, Neurologist; and Dr. Mark Korman, Otolaryngologist, report dated January 13, 2026, and addendum report of the same date.

54The following chart highlights the WPI ratings assigned by each parties’ assessors under Criterion 7, my finding in relation to each, and my rationale will follow.

AMA Guides 4th Ed.

Applicant’s CAT Ratings Summary

Respondent’s CAT Ratings Summary

Tribunal CAT Ratings Summary

Physical Impairments Criterion 6 – AMA 4th Ed.

Chapter 2 Effects of Treatment

Medication Table 9

Dr. Getahun 3%

Dr. Meikle 3%

3%

Chapter 3 Musculoskeletal

Spine: Cervical Thoracic Lumbosacral Total Spine

Dr. Getahun 5% 5% 5% 15%

Dr. Meikle 5% 0% 0% 5%

10%

Upper Extremities Shoulder Table 3

Dr. Getahun 6%

Dr. Meikle 2%

6%

Chapter 4 Nervous System

Mental Status Table 2 s.4.1b

Dr. Steiner 12-14%

Dr. Tuff 0%

12%

Headache Table 23

Dr. Gomez-Vargas 10%

Dr. Meikle 0%

10%

Tinnitus s.4.2b

Dr. Gomez-Vargas 4%

Dr. Meikle 0%

0%

Dizziness Table 11 s. 4.2b

Dr. Gomez-Vargas 4%

Dr. Meikle 0%

0%

Sleep Table 6

Dr. Gomez-Vargas 5%

Dr. Meikle 0%

0%

Sexual Impairment Table 19

Dr. Gomez-Vargas 4%

Dr. Meikle 0%

0%

Chapter 9 ENT

Audiometric Table 3

Dr. Stewart 21%

Dr. Korman 0%

17%

Total WPI Combined Values Chart:

59-60%

10%

45%

Mental/Behavioural Impairments Criterion 7 - AMA 4th Ed.

Psychiatric Rating

Dr. Gavett-Liu 20%

Dr. Tuff 20%

20%

TOTAL CRITERION 7 COMBINED RATING

Total WPI Criterion 7 Combined Values Chart:

67%

30% (Rounded from 28%)

56%

Psychiatric:

55The applicant’s psychiatrist, Dr. Emily Gavett-Liu, and the respondent’s psychologist, Dr. Lawrence Tuff each assigned the applicant 20% WPI rating for psychological impairment in accordance with Chapter 14 of the 6th Edition of the AMA Guides. I note that in reaching this rating the assessors were not in complete agreement on the GAF, PIRS and BPRS scores, however, the outcomes result in the same finding. I find no reason to interfere with this rating.

Medication:

56The parties’ assessors agree on the 3% WPI for medication in accordance with Chapter 2 of the AMA Guides. I find no reason to interfere with this rating.

Spine:

57Cervical: The parties agree on the 5% WPI rating for the cervical spine in accordance with AMA Guides, Chapter 3. I find no reason to interfere with this rating.

58Thoracic: The applicant’s orthopaedic surgeon, Dr. Tejadin Getahun, gave a rating of 5% WPI based on chronic myofascial strain and documented tenderness in the parathoracic musculature particularly down the right scapular border.

59The respondent’s orthopaedic surgeon, Dr. Oleg Safir, opined that the thoracolumbar spine sprain/strain the applicant sustained in the accident had resolved. He did not provide a WPI rating. Dr. Meikle assigned 0% WPI.

60I note that Mr. Julian Amchislavsky, occupational therapist, recorded in his report dated June 12, 2024, that the applicant reported pain in her thoraco-lumbar spine, with reduced functional abilities. Also, Dr. Yahmad, neurologist, identified mild tenderness in the parathoracic regions, more on the right side than on the left side. I find this assessment finding corroborates Dr. Getahun’s rating of 5% WPI for the thoracic spine and therefore I agree 5% WPI is an appropriate rating in accordance with the DRE II, minor impairment.

61Lumbosacral: Dr. Getahun gave a DRE II rating of 5% WPI based on a history and findings compatible with a specific injury to the lumbosacral spine and opined that her accident-related diagnosis included chronic myofascial strain of the lumbosacral spine. Dr. Getahun testified that the applicant did report pre-accident back symptoms. His report identified the past medical history included a diagnosis of bulging discs. Dr. Getahun testified that he did not apportion the pre-existing lower back injury because according to the AMA Guides, apportionment should only be used if there is an understanding of the pre-existing condition. The applicant reported that her pain changed after the accident; from intermittent and mild, to constant and severe. He testified that there should be a comparison of records to confirm the medical history. Dr. Getahun testified he did not have enough information to apply apportionment. On examination Dr. Getahun documented guarding in the L3, L4, L5 segments.

62Dr. Safir’s report documents a pre-existing lower back injury, which he opined may have initially delayed healing of the physical injuries sustained in the accident. He does not provide a WPI rating. Dr. Meikle assigned 0% WPI.

63I find that the lumbosacral rating should be apportioned. I disagree with Dr. Getahun’s opinion that there is insufficient medical history to understand the applicant’s pre-existing condition. Contained in the documentation provided to Dr. Getahun are the clinical notes and records of the family physician, Dr. Reid Cameron, from January 30, 2017 – August 24, 2021. These records include the following references:

i. December 6, 2018: chronic back pain; hx MRI (2016) evidence of nerve root impingement and left L3 radiculopathy; has scoliosis and herniated disc in past.

ii. December 14, 2018: ongoing radicular pain: Far left posterolateral foraminal protrusion L3-4 with associated annular tearing and mild left foramina narrowing. Slight contact to the exiting left L3 nerve root on MRI Oct 2016.

iii. December 27, 2018: some radicular sx worsened including mild loss bladder control.

64Also in the document summary is a letter to Dr. Adrienne Margaret Kelly indicating:

i. December 21, 2017: MRI (2016) evidence of nerve root impingement and left L3 radiculopathy.

ii. Shannon reports daily lumbar back pain radiating to the left knee.

iii. She is also referred to Dr. Ley for consideration of trial of epidural steroid injection.

65Further, in the document summary is a report from Dr. Dean Durant indicating:

i. January 22, 2019: Lumbar Spine MRI. Small L3-4 disc herniation at left foraminal level has not changed in size [in comparison to imaging from September 10, 2016], but the annular tear is no longer seen. No new disc herniation or other significant pathology.

66Based on my review of the medical records I was directed to, the applicant did not complain of lower back pain after the accident. There are no further records mentioning the applicant’s lumbosacral spine until July 8, 2022, when she attended the emergency department and provided a history of L3-L4 disc herniation in 2016, but did not mention the accident.

67Therefore, based on the medical records, and in accordance with Chapter 2 of the AMA Guides, I find that the lumbosacral rating should be apportioned and assigned a rating of 0% WPI.

Upper Extremity:

68Shoulder: Dr. Getahun assessed the applicant’s accident-related shoulder injury and diagnosed a right shoulder dislocation resulting in adhesive capsulitis/frozen shoulder. Dr. Getahun assigned a 6% WPI.

69Dr. Safir also assessed the applicant’s accident-related shoulder injury. Dr. Safir deferred the ratings to Dr. Meikle, the executive summary author, who then assigned a 2% WPI rating.

70The assessors agreed on the following ratings:

flexion was 160º = 1%;

extension was 30º- 40º = 1%;

external rotation was 60º = 0%;

adduction was 20º- 30º = 1%.

71The assessors disagreed on the applicant’s abduction. Dr. Getahun measured 100º = 4%, and Dr. Safir measured 150º but did not provide a rating. Dr. Meikle assigned a rating of 1%. I find Dr. Getahun’s rating to be more persuasive because he conducted the assessment and provided the rating. Dr. Meikle did not assess the applicant before assigning a rating of 1%.

72For the applicant’s internal rotation, I find that only Dr. Getahun provided a ratable measurement in accordance with the AMA Guides. He assessed the internal rotation was 40º = 3%. Dr. Safir did not provide a ratable range of motion, but rather he referred to “T8”, which Dr. Meikle then assigned a 0%. I accept Dr. Getahun’s findings which are ratable in the AMA Guides.

73I accept Dr. Getahun’s conversion of the total upper extremity 10% into 6% WPI in accordance with Chapter 3, Table 3 of the AMA Guides.

Mental Status:

74The applicant’s neuropsychologist, Dr. Leon Steiner, assessed the applicant’s mental status and diagnosed a Mild Traumatic Brain Injury. He assigned an impairment rating of 12-14% WPI. I find that his report dated June 12, 2024, is a comprehensive evaluation of the applicant’s mental status. He provided clear explanations of the tests that were administered, the applicant’s results, and his conclusions based on the results. He concluded that as a result of neurotraumatic factors the applicant sustained an impairment, but her ability remains to perform satisfactorily most activities of daily living.

75Dr. Gomez-Vargas, neurologist, identified a concussive head injury and the development of persistent post-concussion syndrome, which corroborates Dr. Steiner’s opinion that the applicant’s symptoms have a neurological cause. I note that Dr. Nagib Yahmad, neurologist, also confirmed that the applicant sustained a mild traumatic brain injury, however he opined there are no physical neurological sequelae. Dr. Yahmad did not assess her cognitive status. I find Dr. Steiner’s opinion to be persuasive because it is supported by the psychometric data and corroborating medical evidence of neurologic factors related to the accident.

76I find the report, and conclusions of the respondent’s neuropsychologist, Dr. Lawrence Tuff are not persuasive. Dr. Tuff assessed the applicant and concluded that there is no clear evidence that she suffers from any accident-related neurocognitive disorder (e.g., Mild Neurocognitive Disorder due to Traumatic Brain Injury) and that mental status impairments are not currently present. Dr. Tuff administered a Neurobehavioral Symptom Inventory test designed to measure symptoms that may emerge after a minor traumatic brain injury. Although he identified that the applicant’s validity score was valid, and identified her test results, he did not provide a conclusion or interpretation of the results.

77Further, Dr. Tuff identified that the applicant gave variable engagement and effort during the psychometric testing, which may have negatively affected the test results. I note that prior to the four-hour assessment with Dr. Tuff, the applicant had already attended a vocational assessment in the morning. I find that Dr. Tuff did not take fatigue into consideration when evaluating the applicant’s engagement and effort, which I find weakens his conclusion.

78Due to his questioning of the test results, Dr. Tuff concluded that there is no clear or reliable evidence that the applicant has a neurocognitive disorder, and further that the “very minor concussive injury” she had sustained, has long since resolved. He attributed her symptoms instead to non-neurologic factors such as pain, sleep, mood, and anxiety. I am not persuaded by Dr. Tuff’s conclusions because he did not explain why he concluded that the applicant’s concussion was “very minor”. Dr. Tuff did not provide a WPI rating. Dr. Meikle assigned 0% WPI.

79I find Dr. Leon Steiner’s opinion and conclusion to be more reasoned and persuasive than Dr. Tuff’s and accept Dr. Steiner’s overall rating. Dr. Steiner did provide a range of 12-14% that is within the 1-14% allowable for an “impairment exists, but ability remains to perform satisfactorily most activities of daily living.”

80For the reasons above, I find that in accordance with Chapter 4, Table 2, s.4.1c of the AMA Guides the appropriate rating is 12% WPI because I have not heard reason or explanation as to why it should be the higher rating of 14%.

Headaches:

81The applicant’s neurologist, Dr. Andrew Gomez-Vargas, assessed the applicant and assigned a 10% WPI rating for headaches. He refers to her experiencing constant headaches that have a global distribution. Her headaches have a pressure character. They are rated as 8/10. She reports ongoing photophobia, phonophobia, nausea and physical activity intolerance. Based on sensory deficit, pain, or discomfort at the distribution of the greater occipital nerve, bilaterally, in accordance with Chapter 4, Table 23, Dr. Gomez-Vargas assigned a 10% WPI.

82The respondent’s neurologist, Dr. Nagib Yahmad, assessed the applicant and found there was no pain or pins and needles or numbness over the scalp produced by applying mild pressure or tapping over the greater or lesser occipital nerves at the back of the skull. He concluded the applicant’s headaches are likely cervicogenic in nature, musculoskeletal in nature, and they are not neurologic in nature, and they are not associated with any neurological disability or impairments. Dr. Yahmad did not assign a WPI rating for headaches.

83I find that, although Dr. Yahmad did not determine positive findings on the day on which he assessed the applicant, that does not preclude Dr. Gomez-Vargas from identifying positive findings during his examination. In consideration of the applicant’s consistent and continual complaints of headaches, corroborated by the medical records and other assessment reports, I accept Dr. Gomez-Vargas rating. I find on a balance of probabilities in accordance with Chapter 4, Table 23 of the AMA Guides, a 10% WPI rating is appropriate.

Tinnitus:

84Dr. Gomez-Vargas opines that up to 5% WPI may be added because of tinnitus to an impairment estimate for severe unilateral hearing loss. He assessed the rating at 4% WPI. However, he also recommends a formal assessment by an otolaryngologist to determine the proper WPI rating. In the executive summary, Dr. Getahun includes the 4% WPI rating for tinnitus.

85Dr. Yahmad did not assess tinnitus in his report, and a WPI rating was not assigned.

86I find that Chapter 4, 4.2b, allows a rating of up to 5% WPI for unilateral hearing loss. The applicant, however, has been diagnosed with bilateral hearing loss, and therefore the Guides require the assessment to be made in accordance with Chapter 9, Ears, Nose, Throat and Related Structures. Therefore, I find no rating should be assigned for tinnitus.

Dizziness (Vertigo):

87Dr. Gomez-Vargas also assigned a 4% WPI rating based on the applicant experiencing dizziness associated with postural changes. Her dizziness is characterized by a spinning sensation of the environment. On examination, Dr. Gomez-Vargas identified that the cranial nerves II through XII were normal.

88Dr. Yahmad did not assess dizziness in his report, and a WPI rating was not assigned.

89I find that in accordance with Chapter 4, Table 11, s.4.2b of the AMA Guides if there is no known cranial nerve disfunction, then Chapter 9 on ear, nose, throat, and related structures is the appropriate chapter for assessing a WPI rating. I note Dr. Gomez-Vargas does not refer to cranial nerve disfunction in his report, and I have not been directed to evidence in support that a cranial nerve disfunction has been diagnosed. Therefore, I do not accept Dr. Gomez-Vargas’ rating. I find that a WPI rating should not be assigned for dizziness.

Sleep:

90Dr. Gomez-Vargas assessed the applicant’s sleep and assigned a 5% WPI rating based on the applicant’s self reporting of difficulty falling asleep and waking multiple times a night. I did not see reference to the applicant’s history of sleep issues being considered in Dr. Gomez-Vargas’ conclusion.

91Dr. Yahmad did not assess the applicant’s sleep in his report, and a WPI rating was not assigned.

92I have reviewed the clinical notes and records of the family physician, Dr. Cameron, who documented the applicant’s complaints of sleep disturbance as far back as August 2018. During a consult regarding PTSD the applicant reported that “she usually only gets about 2 hours sleep, but this was her pattern before the accident”. Based on this pre-existing condition as documented in the medical records, and in accordance with Chapter 2 of the AMA Guides, I find that sleep should be apportioned and assigned a rating of 0% WPI.

Sexual Function:

93Dr. Gomez-Vargas further assessed the applicant’s sexual function and assigned a 4% WPI rating based on the applicant’s reporting of diminished libido since the accident.

94Dr. Yahmad did not assess the applicant’s sexual function in his report, and a WPI rating was not assigned.

95I find that in accordance with Chapter 4, Table 19 of the AMA Guides a rating for sexual functioning can only be advanced if the impairment results from spinal cord or other neurological system disorders. I find that Dr. Gomez-Vargas does not attribute the applicant’s diminished libido to either the spinal cord or any other neurological system. I heard testimony from the applicant and her husband, that fatigue and pain are the primary reasons that they are no longer intimate. I have not been directed to evidence that supports the reduced intimacy is an impairment in accordance with the AMA Guides, Chapter 4, Table 19, and therefore find a rating of 0% WPI is appropriate.

Audiometric:

96The applicant’s Otolaryngologist, Dr. Craig Stewart assessed the applicant and assigned a 21% WPI rating for bilateral hearing loss. The audiometric testing on March 3, 2025, revealed bilateral severe sensorineural hearing loss with speech reception threshold (SRT) of 65 dB bilaterally.

97Dr. Stewart’s report dated March 3, 2025 states that “[p]rogressive sensorineural hearing loss can occur post head trauma with a concussion injury to the cochlear hair cells with progressive decline in function as a result.” Dr. Stewart testified that as a result of the impact, the applicant sustained a labyrinthine concussion, which causes the cochlear hair cells to die and continue to die over time, causing progressive and permanent hearing loss because the cochlear hair cells do not regenerate. Further, the trauma can loosen crystals in the inner-ear and people usually describe dizziness on certain movements. This is known as benign paroxysmal positional vertigo (BPPV). Dr. Stewart attributed both of these conditions directly to the accident. I heard testimony from Dr. Stewart that the difference between his audiology test results (SRT 65 dB), and Dr. Korman’s audiology test results (SRT 55-60 dB) could be the difference of the applicant having water in her ear, or a cold at the time of his testing which would test as higher degree of hearing loss.

98Dr. Mark Korman, Otolaryngologist, conducted an assessment of the applicant in 2022 for a long-term disability application and concluded that as a result of the subject accident it is likely that the claimant sustained a labyrinthine concussive injury, which may have resulted in posttraumatic benign paroxysmal positional vertigo. Labyrinthine concussion refers to traumatic inner ear injury in the absence of either otic capsule violation or disruption of the membranous structures of the inner ear and is a relatively common cause of episodic vertigo and can occur sporadically or be triggered by head and neck injury.

99Dr. Korman testified that the applicant’s labyrinthine concussion may have resulted in BPPV, but he does not agree that it resulted in sensorineural hearing loss. He based his opinion on there not being any documented loss of consciousness or signs of “a significant head strike”, as well as the fact that the airbags did not deploy during the accident and therefor, there was no acoustic/barotraumatic injury. However, I heard testimony from the applicant that the luggage, stored in the area behind the seat she was in, came forward in the impact and hit her in the head. I find Dr. Korman’s conclusions are not persuasive because I find that the opinion that the luggage striking the applicant in the head was not “significant”, is speculative. Further, Dr. Korman did not consider the applicant’s cervical fracture – a serious neck injury, as the potential cause of the labyrinthine concussion.

100In his 2025 assessment report, Dr. Korman opined that if the applicant did sustain a head injury, it would have been minor at worst, although he deferred to the neurologist assessor. Further, he concluded that the causality of the hearing loss cannot be established with certainty. He deferred the determination to the Executive Summary writer and the trier-of-fact. However, the test at hand is not one of certainty, it is a balance of probabilities. I have not heard persuasive evidence as to why the labyrinthine concussion was severe enough to cause BPPV, but not severe enough to cause sensorineural hearing loss. Therefore, on a balance of probabilities, I find the accident is the cause of the applicant’s hearing loss.

101Dr. Korman further concluded that based on the audiometric test the applicant has speech reception thresholds (SRT) are consistent with pure tone average as at 55 to 60 dB bilaterally, which is consistent with moderately severe sensory hearing loss bilaterally, and a 17% WPI would apply, if the hearing loss was attributed to the accident. Dr. Meikle assigned a 0% WPI, on the basis that the hearing loss is not attributable to the accident.

102I accept Dr. Korman’s conservative rating of 17% WPI, in accordance with Chapter 9, Table 3 of the AMA Guides, because it reflects the highest level of hearing ability retained by the applicant.

103I find that based on the above WPI ratings the Total WPI Combined Values are 45%.

104Based on the reasons and ratings above, I find the applicant has attained a Total WPI Criterion 7 Combined Values rating of 56%, which surpasses the 55% threshold for a catastrophic determination under Criterion 7.

105I find the applicant has proven on a balance of probabilities that she has suffered a catastrophic impairment under Criterion 7, as defined by the Schedule, as a result of the accident.

Criterion 8

106I find that having determined that the applicant meets criterion 7 and is catastrophically impaired, it follows that an analysis of criterion 8 is not necessary.

OCF-6:

The applicant is not entitled to $1,650.00 for hearing aids, submitted on an OCF-6 submitted July 15, 2024, and denied on September 4, 2024

107I find that as a result of the accident, the applicant has sustained hearing loss, and the expense for hearing aids is a reasonable and necessary expense, however because a treatment plan was not submitted prior to the expense, the applicant is not entitled to reimbursement.

108The applicant submits that her hearing loss was documented as early as November 29, 2022, in the assessment report of Dr. Oleg Safir, orthopaedic surgeon. Given that the respondent was aware of the applicant’s hearing loss, she submits that the hearing aid expense is reasonable and necessary, and ought to be reimbursed.

109The respondent submits that the expense for the hearing aids is over the $250.00 allowable to be submitted without a treatment plan/OCF-18, pursuant to s. 38(2) of the Schedule, and therefore it does not have to reimburse the expense.

110Section 15(1) of the Schedule requires the insurer to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 15(1)(f) specifically refers to hearing aids.

111However, pursuant to s. 38(2) of the Schedule, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment plan unless,

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost of $250 or less per item.

112I have found that the applicant has sustained a catastrophic impairment. In doing so, I gave my reasons for finding that the applicant sustained hearing loss as a result of the accident.

113I find that hearing aids are reasonable and necessary because the applicant has been prescribed hearing aids, which she has obtained and uses daily to compensate for her hearing impairment.

114However, she obtained the hearing aids, and then submitted the expense on an expense claim form /OCF-6. The expense exceeded the $250.00 allowable in accordance with s. 38(2).

115In consideration of the statutory limit on the expense claim, without an OCF-18, I find that the applicant is not entitled to reimbursement.

116I find on a balance of probabilities the applicant has not proven that she is entitled to the expense of hearing aids in the amount of $1,650.00.

Interest

117As there are no overdue benefits, there is no interest owing.

Award

118I find an award is not owing.

119The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

120The applicant submits that the respondent unreasonably withheld or delayed the payment of benefits because they relied on flawed assessment reports, and although it was aware of the applicant’s hearing loss, it did not assess her hearing until 2025, and denied the expense of her hearing aids.

121The respondent submits that all denials were based on the medical evidence, and were in accordance with the Schedule, therefore there is no evidence of benefits or payment being unreasonably withheld or delayed.

122Several times during the hearing, the applicant referred to a report of Dr. Mark Korman, Otolaryngologist, from 2022, which was referenced in Dr. Korman’s 2026 CAT assessment report and his Addendum report. She submitted that the respondent was not acting in good faith because the report had not been disclosed and according to Dr. Korman’s 2026 reports, it was in 2022 that he had diagnosed the applicant with hearing loss, and therefore the respondent was aware of this fact since 2022. However, in the course of the hearing, it was determined that the missing 2022 report of Dr. Korman was a report that the applicant had obtained as part of her long-term disability application, and the report had in fact, always been in her possession.

123Further, the applicant referenced the orthopaedic CAT assessment report of Dr. Oleg Safir, orthopaedic surgeon, dated November 29, 2022, in which he referenced the applicant reporting of hearing loss, to support that the respondent was aware of her hearing loss as early as 2022. In review of the documentation provided to Dr. Safir, I do not see any reference to an otolaryngology consultation, assessment, or report. Nor do I see audiology test results having been provided to Dr. Safir for review. The report of Dr. Korman was dated December 22, 2022, and was not available at the time of Dr. Safir’s assessment. Dr. Safir did not make a diagnosis of hearing loss, nor did he include it as part of his summary and medical opinion. The applicant’s reporting of hearing loss was not attributed to the accident at that time. I disagree with the applicant that Dr. Safir’s report supports the applicant’s hearing loss was attributed to the accident and required further assessment.

124I have not been directed to any treatment plans submitted by the applicant for a hearing assessment or audiology testing. I was not directed to evidence that indicates when the audiology results of March 18, 2022, November 24, 2023, and June 6, 2024, were provided to the respondent. The applicant submitted an expense claim for the hearing aids, after they had been purchased.

125The applicant made submissions regarding the unreasonable delay for the applicant to be seen by an otolaryngologist. I note that this is an OHIP funded service, and acknowledge that there was an increased delay for the applicant to be seen in the northern region. However, I have not been directed to evidence that corroborates the applicant submissions that the respondent was responsible for delay or could have expedited the assessment.

126The otolaryngology CAT assessment by Dr. Stewart occurred on March 3, 2025, and included audiology test results. I note that Dr. Korman assessed the applicant on September 2, 2025, after the assessment had been re-scheduled on two occasions because the applicant did not attend. I find that I have not been directed to evidence that corroborates the respondent delayed in arranging for the applicant to be assessed. Further, I find that the respondent is entitled to rely on the insurer’s examinations in support of their decisions. Also, I find that a disagreement between the applicant’s and the respondent’s assessors does not make either patently incorrect.

127The applicant also submitted that due to the applicant living in the northern region, access to treatment is restricted and her recovery has been delayed. The inference is that the respondent is somehow responsible for a lack of treatment providers in her community and the need for her to travel a great distance to access treatment. I find that it is unclear as to why the respondent should be held accountable for the scarcity of regional resources, or what benefit was unreasonably withheld or delayed.

128I find that the applicant has not proven on a balance of probabilities that the respondent unreasonably delayed or withheld benefits. It follows that no award is owing.

ORDER

129For the reasons stated above, I find:

i. The applicant is statute barred from proceeding to a hearing for attendant care services because the applicant failed to dispute their denial within the 2-year limitation period.

ii. The applicant has sustained a catastrophic impairment as defined by the Schedule.

iii. The applicant is not entitled to $1,650.00 for hearing aids, submitted on an OCF-6 submitted July 15, 2024, and denied on September 4, 2024.

iv. No interest is owing.

v. The respondent is not liable to pay an award under s. 10 of Reg. 664.