Licence Appeal Tribunal File Number: 25-008088/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:
Audrelyn Escoffery
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Shannon Kelly, Counsel
For the Respondent:
Megan Murphy, Counsel
Court Reporter:
Stephanie Penman
HEARD by Videoconference:
April 7, 8, 9 and 10, 2026
OVERVIEW
1Audrelyn Escoffery (the “applicant”) was involved in an automobile accident on November 19, 2018, 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 Intact 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 July 9, 2025 to date and ongoing?
iii. Is the applicant entitled to $8,000.00 ($10,200.00 less $2,200.00 approved) for a neuropsychological CAT assessment, proposed by Synoptic Medical Assessments, in a treatment plan/OCF-18 (“plan”) submitted on May 12, 2025, and denied on May 26, 2025?
iv. Is the applicant entitled to $2,300.00 for an attendant care assessment, proposed by Innovative Case Management, in a plan submitted on July 11, 2025, and denied on July 29, 2025?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3As reflected in issue (vi) above, at the start of the hearing, the parties agreed to add back the applicant’s claim under s. 10 of Reg. 664, which had been removed in the case conference report and order dated October 5, 2025 (the “CCRO”).
4As reflected in issue (ii) above, during the hearing, the parties agreed to change the amount in dispute for ACB from $10,291.42 to $6,000.00, the amount that is the maximum limit for ACB under the Schedule where an insured person has sustained a catastrophic impairment.
RESULT
5The applicant has not established that she sustained a catastrophic impairment as defined by the Schedule.
6The applicant is not entitled to ACB or an attendant care assessment submitted after the 260 week mark, the outstanding balance of the plan in dispute, interest or an award.
7The application is dismissed.
BACKGROUND
8Prior to the subject accident of November 19, 2018, the applicant was involved in another motor vehicle accident on May 13, 2012 (the “2012 accident”), in which she was struck by a vehicle as a pedestrian. The applicant sustained a traumatic brain injury (“TBI”) and facial fractures requiring surgery for an orbital fracture and implanting a metal plate on her face under her eye. She also sustained right upper extremity injuries and cognitive impairment.
9In connection with the 2012 accident, in the s. 25 report of Dr. Valda Lopo, physiologist, dated June 19, 2014, Dr. Lopo made psychological diagnoses caused by the 2012 accident. The applicant was diagnosed with Major Depressive Disorder, moderate, single episode; PTSD; and Somatic Symptom Disorder with predominant pain, persistent, severe.
10The parties acknowledge that the applicant sustained a CAT impairment from the 2012 accident. In the November 12, 2013 IE CAT report of Dr. Manu Mehdiratta, neurologist, Dr. Mehdiratta opined that the applicant met the criterion for CAT impairment, having sustained a brain impairment that results in a score of 3 (severe disability) on the Glasgow Outcome Scale, meaning she is able to follow commands but is unable to live independently, and is dependent on others for daily supervision and care. The applicant’s CAT determination application from the 2012 accident was settled in 2015.
11Subsequently, on November 18, 2019, the applicant was a passenger of a vehicle driven by her daughter that was rear-ended by another vehicle en route to an appointment to her family doctor, Dr. Kenneth Gamble. She attended the scheduled appointment on the day of the accident, and Dr. Gamble noted the accident injuries as severe low back pain secondary to whiplash strain.
ANALYSIS
The applicant has not sustained a catastrophic impairment under Criterion 8
12I find the applicant has not established that she has sustained a catastrophic impairment as a result of the accident for the reasons that follow.
13The applicant seeks a catastrophic (“CAT”) impairment determination under s. 3.1(1)8 of the Schedule, referred to as Criterion 8. The applicant bears the burden of proof on a balance of probabilities standard.
14In order to meet the threshold for CAT status under Criterion 8, an individual must have sustained at least three marked (class 4) impairments or one extreme (class 5) impairment out of the four spheres of functioning as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “Guides”).
15Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The Guides sets out the four areas or “spheres” of functioning and the relative levels of impairment. The test to determine whether the applicant has sustained a catastrophic impairment is a legal one and not a medical one. See: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
16The four spheres of functioning, 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)
17The applicant submits that she sustained a CAT impairment under Criterion 8. The applicant relies on the assessments completed by Dr. Shahzad Shahmalak, psychiatrist, and Ms. Zainab Bukhari, occupational therapist (“OT”). In Dr. Shahmalak’s s. 25 CAT psychiatry assessment report dated March 28, 2023, he found the applicant to have accident-related diagnoses of Somatic Symptom Disorder, with predominant pain, persistent; Major Depressive Disorder, moderate to severe, with anxious distress; Post-Traumatic Stress Disorder (“PTSD”); and Somatic Symptom Disorder, with predominant pain. Dr. Shahmalak rated the applicant with a marked impairment under all four spheres of functioning.
18The respondent submits that the applicant has not proven that she suffers a CAT impairment under Criterion 8 and relies on the CAT insurer’s examination (“IE”) assessment reports dated September 12, 2023 completed by Dr. Jonathan Siegel, psychologist, and Ms. Elyse Freedman, OT. Dr. Siegel diagnosed the applicant with Adjustment Disorder with Mixed Symptoms of Depression and Anxiety; and Somatic Symptom Disorder, with predominant pain. Dr. Siegel rated the applicant with a moderate impairment under all four spheres of functioning.
19For the following reasons, the applicant has not satisfied me that she meets the CAT threshold under Criterion 8. This is because I find she does not have a marked impairment in the areas of activities of daily living or social functioning as a result of the accident.
20Although the issue of causation was raised by both parties regarding the applicant’s mental and behavioural impairments, I do not need to decide on this issue as I have found that the applicant has not established on a balance of probabilities that she suffered a catastrophic impairment as a result of the accident. However, in considering areas of functioning under Criterion 8, 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. For this, the impact of the functioning of the applicant following the 2012 accident is considered below.
Activities of Daily Living (“ADL”)
21I find the applicant has not met her onus to establish that she sustained a marked impairment under the domain of ADL.
22The Guides specify that activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitation in these activities should be related to the person’s mental disorder. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability given the context of the individual’s overall situation. It is necessary to define the extent to which the individual is capable or initiating and participating in these activities independent of supervision or direction.
23Assessments pursuant to Criterion 8 should exclude consideration of any physical impairments and be based solely on mental and behavioural disorders.
24Prior to the accident, the applicant was living in a four bedroom condo. She testified that 2012 accident was devastating for her and she got a lot of help. She indicated that was feeling 50 to 70 percent better and was able to do more activities. She described it as getting a second chance in life. The applicant testified that she would go to the yoga room in her building to stretch almost every day. She also indicated that she would do knitting, as this was part of her therapy from the 2012 accident. She would go down to the garden in the backyard of her building with her children and grandchildren, and would sit by the pool but could not swim. The applicant testified that she has 9 adult children (2 daughters and 7 sons), and 28 grandchildren as well as 4 great-grandchildren. A daughter of the applicant testified that at the time of the accident, she and her sister, as well as a brother and the applicant’s husband were living together in the condo. The applicant testified that her family helped her a lot pre-accident. They also got her a cat as a pet out of concern that she was lonely spending a lot of time at home.
25Regarding cleaning and cooking, in Ms. Freedman’s OT report, she quotes the February 22, 2022 report of Dr. Rakeash Ratti, psychologist, which noted that the applicant reported that prior to the accident, her ability to complete housekeeping tasks was limited by pre-existing pain, and she only cooked and did light cleaning. The applicant testified that she baked cookies with her grandchildren and could make them a salad or light food. She was also able to bake ready-made muffins, but was no longer able to cook her traditional food, like oxtail or jerk chicken. Her daughter confirmed that the applicant’s cooking was limited, and that some days were good and some days bad, and it was particularly hard in winter as she has a metal plate in her face, but she tried to push through.
26Her daughter testified that the applicant could do the laundry, located on the main floor of the building, but that she would need assistance carrying the basket and loading the top dryer. The applicant confirmed in testimony that her daughters would help her do the laundry and fold clothes. Her daughter indicated that due to right shoulder pain, her mother was not able to do a lot of reaching, heavy lifting or raising her arm above her head.
27For personal care, the applicant testified that pre-accident she could shower or bathe on her own but needed assistance with her back and feet. Her daughter confirmed in her testimony that the family would help with scrubbing her back, since she was unable to reach as her nerves were damaged. In Ms. Freedman’s report, it is noted that the applicant reported to Dr. Ratti in 2022 that, since the 2012 accident, she began requiring assistance with bathing, dressing, and other self-care tasks, and that she continues to require such assistance.
28Post-accident, the applicant testified that she continues to live in the same condo and currently three of her adult children live with her. She reported to Dr. Siegel that her husband, who she married in 2015 or 2016, had a stroke in 2023, and they are in the process of getting divorced.
29The applicant testified that post-accident she spends most of her time in her room. She stated that her daughters are there, and her son is at work part of the day, but that she does not want to see anyone. She indicated that she no longer goes to the yoga room in her building. She no longer knits due to pain in her shoulder, indicating that she starts knitting but cannot finish. The applicant testified that she continues to go outside her home to the garden and always takes her little dog with her.
30In terms of cleaning and cooking, the applicant testified she can vacuum and does light dusting. Her other daughter reorganized her closet and the kitchen to make it easier for her to find things. The applicant stated that she can make simple meals, for example a salad, boiling an egg or macaroni and cheese. She no longer has a desire to bake due to pain.
31In considering the applicant’s pre- and post- accident ADLs, I find the evidence shows the applicant has useful function and is capable of initiating, without supervision or direction, in important areas of ADL, such as self-care, communication, ambulation and recreational activities. The Guides state that the quality of these activities must be considered in the context of the individual’s overall situation. Further, determinations under Criterion 8 are based solely on mental and behavioural disorders and should exclude consideration of any physical impairments.
32In this regard, I find that prior to the accident, the applicant continued to face impairments relating to the 2012 accident that impacted her ADLs. The applicant described her situation prior to the accident as getting a second chance in life through her recovery, in which she indicated she was feeling 50 to 70 percent better and was able to do more activities. However, I find there is a lack of contemporaneous medical evidence presented by the applicant to support her pre-accident condition. For example, the applicant explained in her testimony that the settlement in 2015 of the 2012 accident was like a ladder being kicked away from under her feet and feeling that her support was dropped, which made her depressed. However, for the period that followed in 2015 through to the accident on November 19, 2018, little or no medical evidence was presented to corroborate her condition with her pre-accident abilities in the area of ADLs.
33Further, since the 2012 accident and continuing to the present, the applicant relies on the support of her family, including three of her adult children that live with her. She has required some assistance with bathing, dressing, and other self-care tasks since the 2012 accident, and continues to require such assistance. Dr. Shahmalak reported that the applicant independently and regularly performs tasks such as dressing and undressing, feeding, and toileting. She receives assistance from her children to help her dress and bathe because of pain, in particular for tasks that require reaching for her back. The applicant also continues to be able to provide for herself in making simple meals, for example a salad, boiling an egg or macaroni and cheese.
34Regarding sleep, both pre- and post accident, the applicant reported to Ms. Freedman that she had no set routine for sleep. She reported that she was a poor sleeper before the accident and this remains so.
35While her desire for certain recreational activities have been reduced, such as going to the yoga room in her building, knitting or baking, she continues to go outside her home to the garden and has now incorporated a dog into her routine as well as having a cat as a pet. I find this is compatible with some, but not all useful functioning in areas of communication, ambulation and recreational activities.
36In considering the CAT assessments, I give greater weight to the report of Dr. Siegel for the following reasons. Firstly, Dr. Siegel conducted a half-day in-person assessment of the applicant and took notes, whereas Dr. Shahmalak’s assessment was done virtually. Dr. Shahmalak testified that he did not know how long the assessment lasted and no notes were taken. He indicated his assessments are usually 60 to 75 minutes long.
37Secondly, Dr. Siegel conducted a more robust review of the medical documents. He testified that the summary of documents in his report was prepared directly by him. In contrast, Dr. Shahmalak did not prepare the summary of the medical history in his report, did not know who prepared it, and could not say who determined what documents were relevant.
38Finally, I find Dr. Shahmalak relied primarily on the self-reporting of the applicant to establish her pre-accident condition. His report notes that the applicant reports an unremarkable mental health history. Further, the report refers to the injuries from the 2012 accident as a head injury. The report does not state that it was a traumatic brain injury or refer to any psychological diagnoses resulting from the 2012 accident, other than noting that she underwent physiotherapy and psychological counselling for three and a half years, which she found helpful. For these reasons, I give less weight to Dr. Shahmalak’s report.
39In his testimony, Dr. Siegel indicated that he could not come to a conclusion as to what psychological impairments were the result of the 2012 accident as compared to the subject accident, as there were no clear records of baseline functioning immediately prior to the subject accident. I agree with Dr. Siegel that this was a limitation for the assessors based on the medical records in evidence, which limited the ability to establish the applicant’s pre-accident functioning.
40Overall, I find the evidence shows the applicant has useful function and is capable of initiating without supervision or direction in some important areas of ADLs, such as self-care, communication, ambulation and recreational activities. While her psychological disorders have some impact on ADLs such as personal hygiene, engaging in activities at a reduced level compared to pre-accident still demonstrates useful functioning in the context of the applicant’s overall situation.
41Accordingly, I find the applicant has not met her onus to establish that she sustained a marked impairment under the domain of ADL.
Social Functioning
42I find the applicant has not met her onus to establish that she sustained a marked impairment under the domain of social functioning.
43The Guides specify that the factors to consider under social functioning are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities are seen as strengths in social functioning.
44The applicant testified that prior to the accident she would mainly socialize with her large, immediate family and some of the people in her building. She also had one or two outside friends that she would see infrequently and talk about the old times. The applicant’s daughter testified that the applicant would sit in the garden with a couple ladies from the building. However, the daughter was unable to speak to the quality of the applicant’s communication with these ladies.
45Post-accident, the applicant testified that that she spends all of her time in her condo, except when her daughters force her to go out. She said she hides from her friends and cannot socialize anymore. The applicant indicated that after COVID, everything shut down and nobody wanted to socialize or talk to anyone.
46Dr. Shahmalak’s report indicates that the applicant’s grandchildren visit her and she enjoys that. They play video games, and sometimes she gets frustrated when there is too much noise, so she goes to her room. His report referred to observations in Ms. Bukhari’s OT report. Post-accident, the applicant reported to Ms. Bukhari that her social functioning has declined significantly due to her issues with chronic pain, migraines, fatigue, low mood, low frustration tolerances, diminished energy levels and depressive symptomatology. Dr. Shahmalak noted that the applicant was pleasant and cooperative throughout the assessment, although she maintained poor eye contact. She completed the assessment without requesting a break. Dr. Shahmalak opined that she had a marked impairment in social functioning, when considering the emotional impact of stress and physical symptom escalation.
47Dr. Siegel referenced Ms. Freedman’s report which noted that the applicant disclosed to her that she does not have any problems getting along with her treating health care practitioners, and denied getting into confrontations with people out in the community. During Ms. Freedman’s assessment, the applicant briefly attended a small convenience store in her condo and purchased a household item as well as picking up her mail from the mailbox. The applicant reported to Dr. Siegel that she has a strong, stable and loving relationships with her children, grandchildren and great-grandchildren. He noted that there were signs of emotional liability, although he found the applicant was able to engage in purposeful and goal-directed conversation with him. On that basis, he found the applicant to have a moderate impairment.
48I find the opinion of Dr. Siegel more closely aligns with the preponderance of evidence of the applicant’s social functioning abilities. The applicant has continued to maintain a close relationship with her adult children, grandchildren and great-grandchildren. She continues to find them supportive of her. Three of her children live with her, one of her sons lives in the same complex and another son lives close by. Her primary social interactions pre-accident were with her family and this has been maintained post-accident. As well, as previously noted, she continues to go outside her home and enjoys the garden in her building and walks her dog.
49While the applicant reports that she is socially isolated and stays in her room most of the time, I find this underestimates the meaningful social interactions that she continues to have. For these reasons, I prefer the opinion of Dr. Seigel that the applicant presents with a moderate impairment in social functioning.Capacity to interact appropriately and communicate effectively with other individuals, as displayed by the applicant, are seen as strengths in social functioning in the Guides.
50Accordingly, for the above-noted reasons, I find the applicant has not met her onus to establish that she sustained a marked impairment under the domain of social functioning.
51As a result of my findings of the applicant not establishing a marked impairment in two areas of functioning, the applicant cannot meet the minimum required three marked impairments and has not been assessed to have an extreme impairment. As such, I do not need to assess the applicant’s impairment level in concentration, persistence, and pace, or adaptation.
CAT Criterion 8 Conclusion
52For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she sustained a catastrophic impairment under Criterion 8 in accordance with the Schedule as a result of the accident.
The applicant is not entitled to ACB in the amount of $6,000.00 per month from July 9, 2025 to date and ongoing
53I find the applicant has not established entitlement to ACB in the amount of $6,000.00 per month from July 9, 2025 to date and ongoing.
54Section 19 of the Schedule 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”).
55The 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.
56Section 20(1) provides that for a non-CAT impaired person no ACBs are payable for expenses incurred more than 260 weeks after the accident. Such limitation does not apply if the person has sustained a CAT impairment.
57Section 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.
58On 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 260 weeks after the accident. November 13, 2023 was 260 weeks after the accident. The ACB that the applicant is seeking is from July 9, 2025, which is after the 260 weeks date of November 13, 2023. As such, I find the applicant is not entitled to ACB for the period claimed.
59Accordingly, I find on a balance of probabilities that the applicant has not met her onus of demonstrating entitlement to ACB.
60To receive payment for a plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled the unapproved balance of the plan for a neuropsychological CAT assessment
61I find the applicant has not proven on a balance of probabilities that the unapproved balance of the plan for a neuropsychological CAT assessment is reasonable and necessary.
62The plan submitted May 12, 2025 was prepared by Dr. David Kurzman, psychologist, and sought funding of $8,000.00 ($10,200.00 plus tax less $2,200.00 approved) for a neuropsychological CAT assessment, as well as facilitation and testing.
63The respondent’s explanation of benefits (“EOB”) dated May 28, 2025 indicates that the CAT assessment in the amount of $4,000.00 was partially approved up to the s. 25(5) funding limit of $2,000.00, as well as $200 for OCF-18 completion. The respondent also denied the cost of $2,000.00 for facilitation and $2,000.00 for mental health and addictions test.
64No submission was made by the applicant supporting that the unapproved balance for the plan is reasonable and necessary. The applicant did not address the specific costs of the unapproved balance, why such goods and services were recommended, and why the unapproved balance of the plan is reasonable and necessary as a result of the applicant’s accident-related impairments.
65Accordingly, I find on a balance of probabilities that the applicant has not met her onus of demonstrating that the unapproved balance of the plan is reasonable and necessary.
The applicant is not entitled the plan for an attendant care assessment
66I find that the applicant is not entitled to the plan for an attendant care assessment because more than 260 weeks have elapsed since the accident and the applicant was not deemed CAT impaired.
67The plan submitted July 11, 2025 was prepared by Ms. Chana Klein, OT, and sought funding of $2,300.00 for an attendant care assessment, as well as documentation support.
68The EOB dated July 29, 2025 denied the plan on the basis that it was submitted beyond the policy limit of 260 weeks post-accident applicable where an insured has not sustained a CAT impairment.
69As I have found the applicant has not suffered a CAT impairment as defined by the Schedule, it follows that no medical and rehabilitation benefits are payable for expenses incurred more than 260 weeks after the accident. The plan that the applicant is seeking was submitted on July 11, 2025, which is after the 260 weeks date of November 13, 2023.
70Accordingly, I find that the applicant is not entitled to the plan for an attendant care assessment because more than 260 weeks have elapsed since the accident and the applicant was not deemed CAT impaired.
Interest
71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
72The 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.
73As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable.
ORDER
74For the reasons outlined above, I find that:
i. The applicant has not established that she sustained a catastrophic impairment as defined by the Schedule;
ii. The applicant is not entitled to ACB or an attendant care assessment submitted after the 260 week mark, the outstanding balance of the plan in dispute, interest or an award; and
iii. The application is dismissed.
Released: June 15, 2026
Henry Harris
Vice-Chair