Citation: Amin v. CAA Insurance Company, 2026 ONLAT 24-013818/AABS

Licence Appeal Tribunal File Number: 24-013818/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:

Farhat Amin

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Yan

APPEARANCES:

For the Applicant:

Daniel Michaelson, Counsel

For the Respondent:

Anju Sharma, Counsel

HEARD by videoconference:

August 5-14, 2025

OVERVIEW

1Farhat Amin, the applicant, was involved in an automobile accident on July 25, 2021, 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, CAA Insurance Company, and applied to the Licence Appeal 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 in the amount of $8,030.83 per month from February 17, 2023 to date and ongoing?

iii. Is the applicant entitled to the treatment plans/assessments proposed by MYO Health and Wellness, as follows:

i. $3,136.96 for Physiotherapy Services, in a plan dated June 13, 2023?

ii. $3,775.69 for Psychological Services, in a plan dated June 12, 2023?

iii. $808.00 for Massage Therapy, in a plan dated July 18, 2023?

iv. $2,872.80 for Other Goods and Services, in a plan dated September 13, 2023?

v. $2,728.96 for Nutrition Counselling, in a plan dated November 17, 2023?

vi. $4,806.68 for Social Work Counselling, in a plan dated December 5, 2023?

vii. $864.05 for Chiropractic Services, in a plan dated June 26, 2024?

viii. $3,524.68 for Chiropractic Services, in a plan dated June 24, 2024?

ix. $1,590.65 for Nutritional Supplements, in a plan dated June 26, 2024?

x. $2,728.96 for Nutrition Counselling, in a plan dated September 4, 2024?

xi. $3,775.69 for Psychological Services, in a plan dated September 18, 2024?

xii. $2,339.25 for a Psychiatric Assessment, in a plan dated October 31, 2023?

iv. Is the applicant entitled to $45.19 for a blood pressure monitor, submitted on a claim form (OCF-6) dated September 4, 2024?

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?

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

vii. Is either party entitled to costs?

3At the outset of the hearing, the applicant withdrew his claim for income replacement benefits (“IRBs”) and withdrew treatment plans, including issues 4, and 5 xii as set out in the Case Conference Report and Order (“CCRO”). The remaining issues are those set out above.

RESULT

4The applicant has sustained a catastrophic impairment under Criterion 7, as defined in section 3.1(1)7 of the Schedule.

5No attendant care benefits are payable for the period from February 17, 2023 to the date of the hearing because the applicant has not established that attendant care expenses were incurred during that period within the meaning of section 3(7)(e) of the Schedule.

6The applicant is entitled to payment for the following treatment plans in dispute:

i. $3,775.69 for Psychological Services, in a plan dated June 12, 2023;

ii. $2,260.00 for Other Goods and Services (Concussion Assessment), in a plan dated September 13, 2023;

iii. $2,728.96 for Nutrition Counselling, in a plan dated November 17, 2023;

iv. $1,590.65 for Nutritional Supplements, in a plan dated June 26, 2024;

v. $2,728.96 for Nutrition Counselling, in a plan dated September 4, 2024;

vi. $3,775.69 for Psychological Services, in a plan dated September 18, 2024; and

vii. $45.19 for a blood pressure monitor, submitted on a claim form dated September 4, 2024.

7The applicant is not entitled to the following plans in dispute:

i. $3,136.96 for Physiotherapy Services, in a plan dated June 13, 2023;

ii. $808.00 for Massage Therapy, in a plan dated July 18, 2023;

iii. $4,806.68 for Social Work Counselling, in a plan dated December 5, 2023;

iv. $864.05 for Chiropractic Services, in a plan dated June 26, 2024;

v. $3,524.68 for Chiropractic Services, in a plan dated June 24, 2024; and

vi. $2,339.25 for a Psychiatric Assessment, in a plan dated October 31, 2023.

8The applicant is entitled to interest on any overdue benefits that were found to be payable.

9The applicant is not entitled to an award.

10The applicant is entitled to costs in the amount of $250.00.

PROCEDURAL ISSUES

11At the start of the hearing, I heard a comprehensive motion from the applicant seeking several remedies for what he submitted was the respondent’s failure to comply with its procedural obligations. The applicant’s motion included a request for the Tribunal to state a case to the Divisional Court for a finding of contempt against the respondent for breaching the production order in the Case Conference Report and Order (CCRO). This motion had been brought prior to the hearing but was deferred to the hearing. The applicant also sought the exclusion of the respondent’s expert evidence and an order compelling the attendance of two adjusters.

12The applicant’s motion was based on several distinct complaints:

Production of Adjuster Log Notes

13The applicant argued that the 765 pages of adjuster log notes produced were subject to substantial redactions without any particularization. The applicant argued that these blanket redactions were contrary to established case law and that the explanations provided were woefully insufficient. Each redaction needed to be specifically justified. After hearing initial submissions, I ordered the respondent to particularize each redaction in the log notes by the morning of the second day of the hearing.

14After receiving the respondent’s particularization of the redactions, the applicant brought a subsequent motion on the third day asking for an independent review of the respondent’s redactions of the log notes. The applicant questioned the legitimacy of the privilege claims, particularly those predating the application. The applicant indicated that the explanations, such as those relating to a “priority dispute”, did not “make sense”, further fueling the request for an independent review. The applicant requested that I order an independent review of an unredacted copy of the log notes to determine the legitimacy of said privilege claims.

15The respondent opposed the motion for an independent review of the redacted log notes and submitted that the redactions were legitimate, necessary, and not unreasonable in scope. The respondent argued that the redactions were permissible as they related to privilege and reserves, and providing further detail would defeat the purpose of redacting the information. The respondent clarified that the redacted material concerned a priority dispute that was unrelated to the applicant’s claim, covered by litigation privilege, and therefore not relevant. The respondent also asserted that piercing solicitor-client privilege requires evidence of nefarious conduct, which was not present in this case. Finally, the respondent pointed out that the redactions constituted less than 10% of the total log notes, and full-page redactions were not unreasonable as they could be for things like a “full letter, full report,” or large “cut and paste” entries.

16After considering submissions from both parties, I denied the applicant’s request for an independent review of the redactions. While I noted that the respondent’s delay in producing and particularizing its log notes was concerning, I ultimately found that the respondent’s conduct did not meet the high bar of nefarious conduct required to pierce privilege, and that any concerns with the late production and particularization of log notes can be dealt with by costs, which I address in the costs section of this decision.

Exclusion of Expert Reports

17The applicant also argued that the respondent had failed to produce the complete files of its independent experts, including items such as clinical notes and records, raw test data, instruction letters and communications, and draft reports and other materials. As a remedy for the production deficiencies, the applicant sought the exclusion of the respondent’s expert reports. Specifically, the applicant requested that the reports of Dr. Oshidari (physiatrist), Dr. Stewart (general practitioner), Dr. Maser (internal medicine), Dr. Eisen (psychiatrist), and Ms. Joan Saunders (occupational therapist) be excluded from evidence.

18In response, the respondent submitted that it had made its best efforts to comply with the production order. It argued that the necessary requests for the complete files had been made to its experts, but they advised that, with the exception of 5 pages of notes from Ms. Saunders’ file, no further documentation existed to be produced.

19After considering submissions from both parties, I denied this request to exclude the respondent’s reports. In my view, exclusion would have been a disproportionate response to the production concerns raised. Any prejudice to the applicant from the incomplete expert files lies in a reduced ability to test the reports, which can be addressed through the weight ultimately given to the opinions and through the opportunity to cross-examine the experts on what materials were, and were not, reviewed. By contrast, striking all of the respondent’s expert reports would have left the respondent with no CAT evidence at all. Instead, I ordered the respondent to produce evidence of its “best efforts” to obtain the experts’ files by the following morning. I indicated that any remaining prejudice flowing from non-production would be addressed in my assessment of the weight of those reports in light of the parties’ closing submissions.

Attendance of Adjusters

20The applicant also sought an order to compel the attendance of two of the respondent’s adjusters. The applicant had issued summonses but was unable to effect personal service, as the adjusters were working remotely. The applicant submitted that the respondent was “shielding” its adjusters from service.

21I denied this request orally, as the summonses were not properly served personally on the witnesses, as required by the Statutory Powers Procedure Act, and no request was made for substituted service. Moreover, I found that the applicant would not be unduly prejudiced by their absence, as the adjusters’ log notes had been produced and were available for the applicant to make arguments regarding the handling of the file.

Motion for Contempt

22Section 13 of the Statutory Powers Procedure Act authorizes this Tribunal to state a case to the Divisional Court where a person, without lawful excuse, does something that would amount to contempt of court if the Tribunal were a court of law with the power to commit for contempt. The Tribunal’s role is not to decide whether contempt has occurred. Rather, it must determine whether the moving party has established a prima facie case that justifies sending the matter to the Divisional Court for determination.

23The Court of Appeal in R. v. Elliott, 2003 CanLII 24447 (ONCA) has described contempt of court as conduct that seriously interferes with, or obstructs, the administration of justice. It is a powerful remedy that must be used with restraint, particularly where the allegation is directed at counsel as an officer of the court. A case should only be stated where the alleged contempt is clear on its face and the conduct can fairly be characterized as a deliberate attempt to thwart the Tribunal’s process.

24Applying these principles, and having already made targeted procedural orders to address the production and witness issues described above, I am not satisfied that the respondent’s conduct meets the threshold for a prima facie case of contempt. The late production of the adjuster log notes and the initial failure to particularize the redactions were problematic and fell short of the Tribunal’s expectations, but they were ultimately remedied through my orders and do not amount to an intentional or calculated interference with the Tribunal’s authority. I therefore decline to state a case to the Divisional Court and dismiss the applicant’s request for a contempt referral.

Addition of Treatment Plans and Expenses on Closing Submissions

25A further procedural issue arose during closing submissions when the applicant sought to add several disputed treatment plans and expenses that were not identified in the CCRO or at the start of the hearing when the issues in dispute were confirmed. The applicant attempted to make submissions on a denied treatment plan for Occupational Therapy services valued at $4,225.65 and various expenses (OCF-6), including eyeglasses and medication payments.

26The applicant argued that these issues should be adjudicated at the hearing, submitting that correspondence had been sent to the Tribunal on March 10, 2025, after the case conference was held and the CCRO was issued, requesting to add these issues. The applicant argued that this was done on consent, as the respondent was copied on the email, and requested a ruling on their inclusion.

27In response, the respondent strongly objected to the inclusion of these new issues. The respondent argued that the request was untimely, having been made after the issues for the hearing had been finalized in the CCRO. The respondent confirmed that it had not consented to adding these issues and argued that no formal motion had been brought to amend the CCRO or add the issues. It was argued that raising these matters for the first time during closing submissions, after a seven-day hearing had been conducted on the basis of the agreed-upon issues, was procedurally unfair and highly prejudicial.

28I agree with the respondent. The issues to be determined at this hearing were finalized in the CCRO. More significantly, the applicant did not raise these additional items at the start of the hearing when the issues in dispute were formally confirmed for the record. While the applicant did send correspondence seeking to add these items, no formal motion was brought, and no Order was ever issued by the Tribunal adding these issues. To permit the applicant to add new issues during closing submissions, after the evidentiary portion of the hearing had concluded, would deny the respondent its right to know the case it has to meet and to lead responding evidence. It would be fundamentally unfair. Therefore, I found that the disputed OT treatment plan and the additional OCF-6 expenses were not properly before me, and I have made no determination on them in this decision.

ANALYSIS

Background

29The applicant was born and educated in Pakistan, where he worked as an income tax lawyer before immigrating to Canada in 1999. Prior to the accident, he was a highly industrious and self-employed individual, running both a bookkeeping and tax business with approximately 1,100 clients, and a hands-on property management business. This work involved purchasing properties and personally performing or managing extensive renovations, including electrical, plumbing, and flooring work. He also held a part-time job as a night auditor and had applied for another position.

30In his personal life, the applicant was responsible for much of the indoor and outdoor home maintenance, including repairs for a tenanted basement apartment, and shared in cooking and cleaning duties. He was independent in his self-care and led an active social life with his wife, two sons, extended family, and his religious community. His leisure activities included travel, attending social gatherings, and going to movies and restaurants with his family.

31On the evening of July 25, 2021, the applicant was involved in a serious motor vehicle accident. He was standing outside his parked car, helping his mother-in-law, when a neighbour’s SUV reversed and pinned him between the two vehicles. The impact caused blunt trauma with a crush injury to his abdomen. The applicant fell to the ground, with varying accounts of his state of consciousness, with some records indicating he did not lose consciousness, while he and other subsequent reports state he was in and out of consciousness at the scene and during transport. He was rushed by ambulance to Michael Garron Hospital and was subsequently transferred to Sunnybrook Health Sciences Centre’s trauma unit due to the severity of his injuries.

32The applicant’s hospitalization at Sunnybrook lasted for approximately three weeks, until his discharge on August 18, 2021. He sustained multiple severe and life-threatening internal injuries, including a degloving of the abdominal wall, a perforated viscus, a perforated sigmoid colon, a minor splenic capsular tear, and an injury to the left accessory renal artery which led to a partial infarction of his left kidney resulting in significant loss of over 50% of his left kidney’s function. He underwent multiple emergency surgeries, including an exploratory laparotomy and a subtotal colectomy, which involved the removal of approximately 75% of his colon. His stay in the Intensive Care Unit (ICU) was prolonged and complicated by respiratory failure, requiring him to be intubated for about two weeks, and he also experienced postoperative delirium and agitation.

33During the applicant’s time in the hospital, he developed several ongoing health issues. He was diagnosed with severe traumatic hypertension, which is now controlled with medication, and anemia, for which he takes iron supplements. He also reported pain and experienced limitations as a result of various musculoskeletal injuries, though CT scans of his head and spine did not reveal any significant abnormalities. When he was discharged home, his wife and sons had to provide significant care, as he was unable to look after himself. He experienced a fall shortly after discharge, which required another visit to the emergency room for stitches. His memory of the initial weeks in the hospital is blurry, and he described his experience as dreamlike and traumatic.

34The parties do not dispute the severity of the applicant’s initial injuries. In fact, the respondent concedes the significance and severity of the applicant’s initial injuries, but argues that the applicant has made a “remarkable recovery,” is not prevented from engaging in daily activities, and his ability to hold a job is inconsistent with the level of impairment claimed.

Has the applicant sustained a CAT impairment as defined by the Schedule?

35The applicant seeks a CAT determination under Criteria 7 and 8 as a result of his accident-related impairments. The applicant bears the burden of proof.

36Based on the evidence provided and the testimony of all witnesses, the applicant has persuaded me, on a balance of probabilities, that he sustained a CAT impairment based on Criterion 7.

Criterion 7

37To qualify under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% Whole Person Impairment (WPI) threshold. The psychological impairment rating is determined in accordance with the methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the AMA Guides), 6th edition, 2008, and is combined with the physical WPI rating from the American Medical Association’s Guides, 4th edition, 1993, using the Combined Values Table. An impairment percentage derived by means of the AMA Guides is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.

38The applicant relies on the assessments of his experts, including Dr. Getahun, orthopaedic surgeon, and Ms. Langis, psychologist. Dr. Kay, physician, who authored the executive summary OCF-19, concluded that the applicant sustained a combined WPI rating of “up to” 58% and therefore meets the CAT threshold. This was derived by combining a 31% physical impairment rating with a 30% mental and behavioural rating, and included additional ratings of “up to” 5% for headaches and “up to” 9% for sleep disturbance. Additionally, the applicant relies on the assessment of the respondent’s expert, Dr. Oshidari, who assigns an impairment rating of 9% for scarring that the applicant’s experts did not assign.

39The applicant submits that his assessors’ opinions should be preferred. Regarding the gastrointestinal impairment, the applicant argues that the respondent’s internal medicine expert, Dr. Maser, erred in assigning a Class 2 rating. He submits that his chronic symptoms, including diarrhea, pain, and weight loss, clearly meet the criteria for a Class 3 impairment, which would significantly increase his WPI. The applicant also challenges the 15% mental and behavioural rating from the respondent’s psychiatrist, Dr. Eisen, arguing it is not credible. He submits that the 30% rating from his psychologist, Ms. Langis, is more reliable as it was based on comprehensive psychometric testing, whereas Dr. Eisen failed to conduct such testing, review key assessments, or disclose his raw scoring data. Finally, the applicant argues that the respondent’s assessors improperly excluded or underrated other impairments, including those for medication use, post-traumatic hypertension, and his sleep disorder.

40The respondent relies on the assessment reports of its experts, including Dr. Oshidari, physiatrist, Dr. Maser, internal medicine, and Dr. Eisen, psychiatrist. The respondent concluded that the combined WPI rating under Criterion 7 is 47%, which is below the 55% threshold.

41The respondent submits that the reports from the applicant’s assessors are unreliable and their evidence should be given little to no weight, and asks that I draw a negative inference from the failure of Dr. Getahun and Dr. Kay to attend the hearing. It argues that the ratings for headaches and sleep disturbance provided by Dr. Kay are invalid as she never personally assessed the applicant, and that these conditions lack the required neurological basis under the AMA Guides. The respondent also submits that the 3% rating for medication from Dr. Getahun constitutes impermissible double counting. Regarding the mental and behavioural impairment, the respondent argues that the 30% WPI from Ms. Langis is egregiously high and inconsistent with the applicant’s demonstrated level of functioning. Finally, the respondent raises the issue of a pre-existing 2018 accident, submitting that any rating for the applicant’s spine should be discounted to 0%, reaching a total combined physical and mental WPI of 37%.

42The chart below provides a summary of both parties’ assessors’ ratings and the Tribunal’s findings regarding Criterion 7. The rationale for my findings will follow.

Impairment	s.25 Impairment Ratings	s. 44 Impairment Ratings	Tribunal’s Finding
Musculoskeletal system Cervicothoracic spine Thoracolumbar spine Lumbosacral spine	15% 5% 5% 5%	0-15% 0-5% 0-5% 0-5%	15%
Scarring	0	9%	9%
Gastrointestinal / Internal Medicine	17% (32%1)	17-18%	25%
Hypertension	0	0	0
Headaches	"up to" 5%	0	0
Sleep disturbance	"up to" 9%	0	0
	3%	1%	2%
Mental and behavioural rating	30%	15%	20%
Combined Physical and Mental and Behavioural Impairment	up to 58%	37-47%	54.5%

Musculoskeletal system

43The parties’ assessors are in agreement regarding the total WPI rating for the applicant’s musculoskeletal system. Both the applicant’s expert, Dr. Getahun, and the respondent’s expert, Dr. Oshidari, assessed a combined spinal impairment that results in a 15% WPI. The sole point of contention before me is whether this 15% rating should be reduced to 0% to account for a pre-existing impairment sustained by the applicant in a 2018 motor vehicle accident.

44The respondent argues for a deduction based on Dr. Oshidari’s evidence. In his report and testimony, Dr. Oshidari presented two scenarios. The first scenario proposed that if the applicant sustained a DRE (Diagnosis-Related Estimate) Category II impairment from the 2018 accident, then a 15% WPI must be deducted from the current rating. Dr. Oshidari testified that under the AMA Guides, a spinal impairment rating is considered a lifelong impairment, even if symptoms resolve.

45The respondent submits that a 2019 Functional Abilities Evaluation (FAE), which noted the applicant’s limitations eight months after the 2018 accident, is sufficient evidence to conclude, on a balance of probabilities, that a DRE II impairment existed. The respondent further asks that I draw an adverse inference from what it argues is the applicant’s failure to produce his 2018 Accident Benefits file, which it argues would have contained a formal diagnosis.

46The applicant argues strongly against any deduction, submitting that there is no evidence to support it. The applicant points out that Dr. Oshidari conceded during cross-examination that he had not reviewed any medical document from 2018, such as an OCF-3 Disability Certificate, that contained an actual DRE II diagnosis. The applicant also relies on the conclusion of the respondent’s own executive summary author, Dr. James Stewart, who reviewed the available records and explicitly stated he “saw no evidence of any pre-existing musculoskeletal impairments,” leading him to adopt Dr. Oshidari’s non-deducted 15% WPI rating. Finally, the applicant relies on testimony from himself and his wife that he had fully recovered from the 2018 accident and notes that the respondent never made a formal request for the 2018 accident file.

47After reviewing the evidence and submissions, I find that a deduction for a pre-existing impairment is not warranted because it is unsupported by the evidence before me.

48Dr. Oshidari himself testified that a formal DRE diagnosis is required to apply the apportionment principles in the AMA Guides. I have not been presented with any medical report or diagnostic evidence establishing that the applicant was ever diagnosed with a DRE II impairment following the 2018 accident. While a 2019 Functional Abilities Evaluation that the respondent relies on indicates the applicant was experiencing some functional limitations at that time, a report of reduced capacity is not equivalent to the specific DRE diagnosis required to justify a deduction. In the absence of a diagnosis, I am not prepared to infer one would have likely existed.

49Furthermore, I decline to draw an adverse inference from the non-production of the 2018 Accident Benefits file. An adverse inference is appropriate where a party has failed to produce relevant evidence that was properly requested or ordered. I was not directed to any evidence that such a request was made and refused or ordered by the Tribunal.

50Finally, I find it persuasive that the respondent’s own expert, Dr. Stewart, arrived at the same conclusion. After being provided with the applicant’s medical file to prepare his summary report, Dr. Stewart stated that he found no evidence to justify an apportionment and based his final WPI calculation on Dr. Oshidari’s second scenario, which applied a 15% WPI for the spine without any deduction.

51For the foregoing reasons, I accept a 15% WPI for the applicant’s musculoskeletal system impairment.

Scarring

52The WPI rating for the applicant’s scarring is not in dispute. The rating originates from the respondent’s physiatrist, Dr. Oshidari, who assessed the applicant’s abdominal scarring resulting from his post-accident surgeries. Dr. Oshidari observed “scarring and keloid formation in the abdominal area” and assigned a 9% WPI. He explained this rating was the maximum in the applicable 0-9% range, justified by the presence of keloid formation in addition to the scarring.

53This impairment was not identified by the applicant’s assessors. Both the applicant’s orthopaedic expert, Dr. Getahun, and the author of the OCF-19, Dr. Kay, provided no rating for this condition. The respondent highlighted this omission, noting Dr. Oshidari’s surprise that the condition was missed despite the applicant’s significant abdominal surgeries. In closing submissions, the respondent argued this oversight was indicative of the “haphazard nature” of the applicant’s expert reports.

54As the 9% WPI rating for scarring is accepted by both parties and is based on the direct physical examination and clear rationale provided by Dr. Oshidari, I find it to be the appropriate rating for this impairment. Accordingly, I accept a 9% WPI for the applicant’s scarring.

Gastrointestinal / Internal Medicine

55The appropriate WPI rating for the applicant’s gastrointestinal impairment is in dispute. Both parties’ medical raters place the applicant’s colonic impairment in Class 2 of Table 3 in Chapter 10 of the AMA Guides (4th edition). Dr. Getahun assigns a 17% WPI for colonic impairment and Dr. Maser assigns an 18% WPI.

56The applicant submits that, notwithstanding the Class 2 opinions, the totality of the evidence more closely matches the Class 3 descriptor, particularly given (a) the permanent anatomic loss resulting from the subtotal colectomy, (b) ongoing frequent diarrhea and abdominal pain, (c) the need for diet modification and medication strategies to manage symptoms (for example, restricting foods and meal size, and the use of rectal foam and other gut-directed therapies), and (d) activity restriction driven by the need for ready bathroom access.

57The respondent opposes this position. The respondent submits that the Tribunal should accept Dr. Maser’s Class 2 rating because no physician expressly calculated a Class 3 rating. It argues that Dr. Maser’s 18% rating is the highest WPI percentage in the record and that no expert has provided a competing calculation that places the gastrointestinal impairment in Class 3. The respondent submits that the internal injuries are “least controversial,” and that no other physician or expert contradicts Dr. Maser on this point.

58I accept that gastrointestinal impairment ratings are derived by applying the AMA Guides criteria to the proven medical condition, symptoms, and resulting functional limitations. As trier of fact, I must determine which impairment class in Table 3 best reflects the applicant’s demonstrated level of impairment, and then select a percentage within that class. In doing so, I rely on the objective surgical history and the expert medical evidence describing the applicant’s ongoing gastrointestinal symptoms and consequences, together with the corroborated evidence about day-to-day functional impact. I am not required to adopt an expert’s selected percentage where the underlying facts I accept support a different class under Table 3.

59For ease of reference, I set out the Class 2 and Class 3 criteria for colonic and rectal impairment in Table 3. These are the criteria I must apply in deciding whether the applicant falls within Class 2 or Class 3.

Class 2: 10%-24% impairment of the whole person	Class 3: 25%-39% impairment of the whole person
There is objective evidence of colonic or rectal disease or anatomic loss or alteration; and There are mild gastrointestinal symptoms with occasional disturbances of bowel function, accompanied by moderate pain; and Minimal restriction of diet or mild symptomatic therapy may be necessary; and No impairment of nutrition results.	There is objective evidence of colonic or rectal disease or anatomic loss or alteration; and There are moderate to severe exacerbations with disturbance of bowel habit, accompanied by periodic or continual pain; and Restriction of activity, special diet, and drugs are required during attacks; and There are constitutional manifestations (fever, anemia, or weight loss).

60I find that the totality of the evidence supports a Class 3 impairment. In particular, the evidence establishes (a) permanent anatomic loss from the subtotal colectomy, (b) ongoing bowel disturbance with abdominal pain, (c) restriction of activity with special diet and drugs to manage symptoms, including the need for ongoing dietary restriction and meal-pattern modification (soft and smaller foods with more frequent meals) to manage exacerbations of abdominal symptoms and pain and pressure after eating, and (d) constitutional manifestations. In coming to this conclusion, I rely, in particular, on the opinion of the applicant’s gastroenterologist, Dr. Gould, regarding the nature and consequences of the applicant’s abdominal injuries and surgery.

61The objective medical evidence establishes profound anatomic loss to the gastrointestinal system. Following the accident, the applicant underwent major abdominal surgery including removal of approximately three quarters of the colon and a portion of the ileum, with an anastomosis leaving only a short distal segment. I accept Dr. Gould’s explanation that this degree of colonic loss permanently eliminates most of the colon’s role in water absorption and stool regulation, and that the need for ready access to washrooms is a foreseeable long-term consequence.

62I also accept Dr. Gould’s evidence that, given the extent of the applicant’s colectomy, frequent and sometimes urgent bowel movements are an expected long-term outcome and create a practical need to plan activities around reliable bathroom access. He explained that these symptoms can interfere with meals, sleep, and other activities, particularly where bathroom access is limited, and that poor control can generate significant stress around bathroom availability and concern about incontinence.

63The applicant’s evidence also establishes that meals themselves can precipitate symptom worsening, particularly abdominal pain and pressure, such that he must follow a special diet and a restricted meal pattern. The applicant avoids hard-to-digest solid foods (including hard meat) and limits bread-based carbohydrates such as roti and bread. He instead relies on soft foods such as yogurt, soft rice, and purees. He also cannot tolerate full meals without increased pain and pressure and therefore eats smaller meals more frequently. I find this evidence goes beyond a “minimal restriction of diet” and supports the Class 3 criterion that restriction of activity, special diet, and drugs are required during attacks because these dietary strategies are required to prevent and manage exacerbations and their functional consequences.

64The evidence of resulting social restriction and sleep disruption is addressed further below. When considered with the applicant’s evidence of avoiding restaurants, movies, and larger social gatherings, I find that the bowel impairment results in a meaningful restriction of activity and the need for ongoing diet modification and symptom-directed medication, as contemplated by the Class 3 criteria.

65The functional impact is also corroborated by third-party evidence. Ms. Saunders’ situational assessment records that the applicant stopped the community task after approximately 15 minutes due to fatigue and “bowel pressure,” which is consistent with activity restriction arising from gastrointestinal symptoms. In a collateral interview summarized in that assessment, the applicant’s son described the significant and unpleasant odour that lingers after his father uses the toilet, which supports the applicant’s evidence of malodour and resulting embarrassment and avoidance. Ms. Saunders’ in-home assessment also records the applicant’s reports of bowel leakage, requiring assistance with extra laundering.

66I accept that these symptoms and consequences restrict the applicant’s social and community participation. The applicant testified that he avoids friends and family gatherings because it is “so embarrassing” and he does not want to “mess up the area.” He also testified that he cannot go to friends’ and family members’ homes because he does not want to burden them, and described the foul smell associated with his bowel symptoms as an ongoing issue, consistent with the corroborating evidence summarized above. This is also consistent with Dr. Gould’s evidence that fear of accidents and embarrassment are significant drivers of restriction, including Dr. Gould’s testimony that “nobody wants to walk around smelling stool.”

67The evidence also supports meaningful interference with sleep and living arrangements arising from gastrointestinal symptoms. Ms. Saunders recorded that the applicant reported needing to go to the bathroom many times and that it wakes him in the night. In the hearing, Ms. Saunders confirmed that she noted and considered her observation that the applicant was using a bed in the living room and that he reported sleeping on a mattress in a plastic bag due to his wife’s concerns about his stomach issues.

68Finally, I also find there are constitutional manifestations within the meaning of Table 3. The evidence reviewed at the hearing included a diagnosis of anemia and continuing iron supplementation, together with weight loss since the accident. Dr. Gould records that the applicant weighed 84 kg prior to the trauma and the applicant reported losing approximately 42 pounds afterward, with only partial regain. Dr. Gould also records that the applicant’s weight at examination was 67 kg and notes reduced weight as part of the current clinical picture.

69I have considered Dr. Maser’s report and testimony carefully, including the respondent’s submission that his internal medicine rating should be accepted as “uncontradicted.” I accept that Dr. Maser is an internal medicine specialist and his impairment analysis is relevant. I also note that Dr. Maser’s Class 2 placement is based on his view that there is anatomic loss with bowel disturbance and moderate pain, but “minimal dietary restriction,” “no weight loss”, and no nutritional impairment other than requiring an iron pill daily. However, I do not accept that the evidence supports minimal dietary restriction in the sense used in Class 2 criteria. The applicant’s testimony, which I accept, describes ongoing medically advised avoidance of hard-to-digest foods and limitation of bread-based carbohydrates, reliance on soft foods, and the need to avoid full meals by eating smaller, more frequent meals because full meals cause pain and pressure.

70Moreover, I do not accept that Dr. Maser’s view is uncontradicted on the material point that the gastrointestinal impairment does not meaningfully restrict daily functioning. Dr. Gould expressly disagreed with Dr. Maser’s conclusion that the gastrointestinal sequelae do not result in a permanent functional impairment of the severity alleged and explained that it is not reasonable to discount the gastrointestinal system’s effect on daily life after a three-quarter colectomy.

71I also find it important, in weighing Dr. Maser’s Class 2 placement, that the history and symptom picture recorded at his assessment appears materially more limited than what was established through the hearing evidence and the corroborating collateral information. In cross-examination, Dr. Maser stated that the applicant did not report sleeping on a plastic-wrapped mattress or bowel accidents, and that if diarrhea or accidents “in the bed” had been a primary complaint it would have been prominent in his notes. His report also does not address the bowel-related functional adaptations described at the hearing and reflected in the occupational therapy evidence, including protective measures taken in the home to manage the risk of nocturnal leakage and the applicant’s tendency to restrict activities outside the home to situations where immediate bathroom access can be maintained.

72Weighing all of the above, I find that the applicant’s gastrointestinal impairment aligns more closely with Class 3 than Class 2 because the evidence establishes ongoing bowel disturbance that is not merely intermittent, associated restriction of activities and social functioning, ongoing night disruption, and constitutional manifestations including anemia and weight loss. It also establishes that exacerbations of symptoms related to eating are managed through a special diet and restricted meal pattern, together with symptom-directed medication, rather than only minimal dietary restriction. These findings correspond to the factors relied on by the applicant: the permanent anatomic loss, the ongoing bowel disturbance and pain, the need for diet and medication strategies, and the resulting activity restriction. Given that the applicant has nevertheless adapted to some extent and the record does not demonstrate the most extreme end of Class 3 (for example, profound malnutrition or complete inability to engage in activities), I place him at the bottom of the Class 3 range and assign 25% WPI for gastrointestinal impairment.

Hypertension

73Notably, no expert for either party assigned a WPI rating for the applicant’s hypertension in their reports. The issue was raised by the applicant in closing submissions, where he argued that the respondent’s assessors made a “clear miss” by failing to rate this condition, which he submits is a post-traumatic consequence of the accident. However, the applicant also did not address the shortcoming of his own expert opinions in this regard. The applicant now asks that I assign a 5% WPI for hypertension. The respondent maintains that a 0% WPI is appropriate, arguing the applicant does not meet the specific diagnostic criteria under the AMA Guides.

74The resolution of this issue turns on the expert evidence of the respondent’s internal medicine specialist, Dr. Maser. I accept his evidence on the specific requirements for rating hypertension under the AMA Guides. While Dr. Maser acknowledged that the applicant’s hypertension may have been accident-related and controlled with medication, he provided a clear rationale for why no WPI was assigned for the condition itself. He testified that to qualify for a Class 1 impairment, the AMA Guides require evidence of repeated diastolic blood pressure readings at or above 90 mmHg. After reviewing the medical file, Dr. Maser found only a single such reading. He therefore concluded that the applicant did not meet the threshold criteria for a Class 1 impairment rating.

75The onus is on the applicant to establish that he meets the criteria for the rating he seeks. The applicant has not produced evidence of the repeated high blood pressure readings required or any expert opinion assigning any impairment rating in this area. For these reasons, a separate WPI rating for hypertension is not warranted, and I assign a 0% WPI for this condition.

Headaches

76The parties dispute whether the applicant is entitled to a WPI rating for headaches. The applicant’s OCF-19, authored by Dr. Kay, includes a rating of “up to 5% WPI” for headaches. The respondent argues that this rating is entirely unsupported by the evidence and a 0% WPI should be assigned.

77The determination of this issue rests on the specific criteria for rating headaches under the AMA Guides. I accept the uncontradicted expert opinion of the respondent’s physiatrist, Dr. Oshidari, on these specific criteria. He testified that for headaches to receive a separate WPI rating, they must either have a specific neurological basis, such as a diagnosis of occipital neuralgia, or they must not be cervicogenic (originating from the neck). If the headaches are cervicogenic, they are considered a symptom of the neck injury and are already accounted for in the WPI rating assigned to the spine. To assign a separate rating in that case would constitute “double counting”.

78The applicant has not presented any evidence of specific neurological findings in connection with his headaches, such as occipital neuralgia, that would justify a rating on that basis. Furthermore, the applicant has not proven, on a balance of probabilities, that the headaches are not cervicogenic and therefore not already captured within the 15% WPI assigned to the spine.

79The “up to 5%” WPI rating for headaches originates from the summary report authored by Dr. Kay. In my view, the phrasing of this “rating” is problematic. The use of “up to 5%” is not a definitive assignment of impairment. It is unclear whether this was intended as a formal, concluded rating or merely a comment identifying the maximum potential rating that might be available subject to a more rigorous assessment. This ambiguity is compounded by the fact that Dr. Kay, though scheduled to testify, was unavailable for cross-examination at the last minute. Consequently, her opinion is untested, and her intended meaning cannot be clarified. Even based on the contents of her report, I am unable to determine the basis for her rating, what evidence she considered, or how she concluded that the headaches met the criteria for a separate rating under the AMA Guides. This leaves a critical gap in the applicant’s evidence, and I therefore give Dr. Kay’s assertion on this point no weight.

80In summary, the applicant has not met his burden of proof on this rating. I accept Dr. Oshidari’s evidence on the requirements for rating headaches under the AMA Guides. The applicant has not provided the necessary diagnostic evidence of a qualifying neurological condition, nor has he proven that his headaches are not already accounted for in the spinal impairment rating. For these reasons, I find on a balance of probabilities that a separate WPI rating for headaches is not warranted and assign a 0% WPI.

Sleep disorder

81The area of physical impairment related to the applicant’s sleep disturbance is also in dispute. The applicant’s OCF-19, authored by Dr. Kay, assigns a rating of “up to 9% WPI” for this condition. The respondent submits that a 0% WPI is appropriate, as the applicant’s sleep issues do not meet the criteria for a separate rating under the AMA Guides.

82As with the issue of headaches, the analysis must be grounded in the specific requirements of the AMA Guides. I again accept the uncontradicted opinion of the respondent’s physiatrist, Dr. Oshidari, on these specific requirements in relation to the assignment of a WPI rating for sleep disorders. He testified that to assign a WPI for sleep disturbance under Chapter 4 of the AMA Guides, the disturbance must be caused by a qualifying neurological condition. He stated that sleep difficulties arising from other causes, such as pain, psychological factors like depression or rumination, or GI/urinary issues like frequent urination, are not separately rateable.

83The applicant’s argument for a rateable impairment rests on a chain of causation: that he sustained a mild traumatic brain injury (TBI) in the accident, and that his diagnosed post-traumatic insomnia is a direct consequence of that TBI. The foundational TBI diagnosis, which comes from Dr. Warshafsky, is a highly contested issue. It is challenged by a significant volume of evidence, including contemporaneous hospital records noting “No LOC” (No Loss of Consciousness) and the applicant’s own inconsistent reporting of accompanying symptoms to other assessors such as Dr. Desai, neurologist, and Dr. Oshidari, physiatrist. This unresolved dispute weakens the neurological link required to justify a WPI rating.

84Moreover, Dr. Warshafsky does not comment on the extent to which any sleep issues are a result of neurological issues relative to other causes nor does Dr. Warshafsky opine that the applicant’s sleep issues are due to neurological issues in a way that warrants an assignment of impairment under the AMA Guides.

85I also find that Dr. Kay’s report itself is unreliable. For the same reasons outlined in my analysis of the headache impairment, I give no weight to the untested opinion of Dr. Kay. Further, the phrasing of her rating as “up to 9%” is ambiguous and it is unclear if it was intended as a definitive assignment. Most significantly, her report contains no analysis explaining how she arrived at this figure or how she apportioned the impairment between the alleged neurological cause and the other contributing factors. Without such an analysis, the rating is unpersuasive.

86I find that the applicant has not met his burden of proof. The neurological basis for his sleep disturbance is not sufficiently established, and he has failed to isolate a rateable cause from multiple non-rateable factors. The proposed impairment rating is untested and unsubstantiated in Dr. Kay’s report and lacks any analytical foundation. For these reasons, I find that a separate WPI for sleep disturbance is not warranted and assign a 0% WPI.

Medication / Treatment

87The final area of impairment in dispute concerns the appropriate Whole Person Impairment (WPI) rating for the applicant’s use of medication. The applicant, relying on the opinion of his orthopaedic expert Dr. Getahun, seeks a 3% WPI. The respondent, based on the analysis of its physiatrist Dr. Oshidari, argues that only a 1% WPI is warranted.

88The applicant’s claim for a 3% WPI originates from Dr. Getahun’s report, where he assigned the rating to “account for the chronicity of his symptomatology and his persistent use of medication”. This figure was then adopted by Dr. Kay in the OCF-19. However, Dr. Getahun did not testify at this hearing. As a result, his reasoning for assigning 3% is untested. It is unclear from his report how he applied the principles of the AMA Guides, whether he considered the issue of double counting, or which specific medications he factored into his assessment. This lack of testimony means his explanation is untested and I give no weight to his opinion.

89In contrast, Dr. Oshidari provided a detailed rationale for a lower rating. He testified that the WPI ratings assigned for the spine using the DRE model already account for the associated pain and the use of medication to manage that pain.

90This leaves the medications for non-spinal, accident-related conditions. Dr. Oshidari opined that a 1% WPI was sufficient to account for the Amlodipine (hypertension) and Ferrous Fumarate (iron deficiency). This was largely supported by the respondent’s internal medicine expert, Dr. Maser, who described these as “innocent benign medications.” However, Dr. Maser also acknowledged that the applicant’s hypertension may have been traumatic in origin, and potentially caused by the accident. Dr. Maser also opined that the hypertension could have also been pre-existing and simply undiagnosed until after the accident. While Dr. Maser felt the applicant did not meet the criteria for a WPI for hypertension, he testified that one might “squeeze him into a Class 1 impairment, for a 1-2% at highest” in relation to medication if we accept that the applicant’s hypertension was caused by the accident. I accept, on a balance of probabilities, that the applicant’s hypertension was caused by the accident based, in part, on the applicant’s diagnosis of severe traumatic hypertension immediately following the accident.

91The applicant has not provided a reliable basis for a 3% WPI rating in Dr. Getahun’s report. However, accepting that the hypertension was caused by the accident, I find that a rating that accounts for the medication required to manage this specific, non-spinal condition is warranted. Dr. Maser’s testimony suggests that a rating of up to 1-2% could potentially be justified. Considering this, I find that a 2% WPI is a reasonable and appropriate rating that accounts for the applicant’s use of medication for his accident-related hypertension and iron deficiency. This rating does not duplicate any WPI for hypertension as a condition, which I have found is 0%, but reflects only the ongoing burden of medication for accident‑related hypertension and iron deficiency. I therefore assign a 2% WPI for medication.

Mental and behavioural impairment

92To obtain the WPI rating under Chapter 14 of the 6th edition of the Guides, three scales are administered to determine a person’s score: the Brief Psychiatric Rating Scale (BPRS), the Global Assessment of Functioning (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.

93The applicant relies on the assessment of Ms. Langis, a psychologist, who diagnosed him with Major Depressive Disorder (Moderate), Posttraumatic Stress Disorder (PTSD), and Somatic Symptom Disorder with Predominant Pain (Severe). Ms. Langis administered the three required scales, which yielded a median score and a final WPI of 30%.

94The respondent relies on the assessment of Dr. Eisen, a psychiatrist. Dr. Eisen made two significant diagnoses: Adjustment Disorder with Mixed Mood Features versus Major Depressive Disorder, and PTSD, but disputed their severity. Moreover, Dr. Eisen argued that many of the applicant’s functional limitations were caused by his physical impairments, not primary psychological issues. Dr. Eisen’s administration of the three scales resulted in a median score and a final WPI of 15%.

95The impairment scores derived from each expert’s administration of the three scales are as follows:

Assessor	GAF	PIRS	BPRS	WPI % (Median)
Ms. Langis (Applicant)	18%	40%	30%	30%
Dr. Eisen (Respondent)	10%	15%	30%	15%

96As the table illustrates, both experts arrived at an identical 30% impairment rating for the BPRS. The significant divergence in their final WPI ratings is driven entirely by their different scores on the GAF and, most critically, the PIRS. The dispute therefore centres on the reliability and accuracy of the PIRS assessment.

97I first address the applicant’s submission regarding Dr. Eisen’s PIRS score. Dr. Eisen did not provide the raw scoring data for his PIRS assessment, making it difficult to understand or verify how he arrived at his 15% rating. As this procedural issue was raised by the applicant at the start of the hearing and again on closing submissions, I find it is appropriate to give Dr. Eisen’s final PIRS score of 15% less weight.

98Ms. Langis’s 40% PIRS rating was derived from assigning a Class 4 (Severe) impairment in the following key domains of functioning: Self-Care, Social and Recreational Activities, Interpersonal Relationships, and Employability.

99While I place little weight on Dr. Eisen’s final PIRS score, given the absence of raw scoring data, the lack of that data does not undermine the substance of his critique of Ms. Langis’s domain ratings. Using the class descriptions in Tables 14-11 to 14-16 of the AMA Guides and the functional evidence summarized earlier, I find on a balance of probabilities that the following PIRS ratings best reflect the applicant’s mental and behavioural impairment:

Self‑Care, Personal Hygiene, and Activities of Daily Living

i. A Class 4 rating in this domain contemplates a person who requires supervised residential care. That is not supported by the evidence. The applicant lives at home with his family, attends to his own bathing, dressing, toileting and feeding, and works two eight‑hour shifts a week. The applicant does rely more on his family for meal preparation and household hygiene than before the accident, and his low mood and lack of motivation contribute to reduced grooming and showering frequency. On this record, his psychological symptoms cause a real but not residential‑level restriction, and I find that a Class 3 (moderate) impairment is appropriate.

Role Functioning, Social and Recreational Activities

ii. Ms. Langis’s Class 4 rating would assume that the applicant “never leaves his place of residence” and withdraws when others visit. That is inconsistent with his regular attendance at work, his participation in psychological treatment, and his occasional attendance at the mosque and family gatherings. At the same time, the applicant rarely engages in social or recreational outings outside work, avoids restaurants, movies and large family events due to fear of gastrointestinal accidents, and spends much more time at home than before the accident. In my view, this reflects a significant reduction in social engagement, but he retains meaningful relationships and some community involvement. The description of Class 3 (moderate) impairment, which contemplates infrequent outings and limited participation, best captures this pattern.

Travel

iii. For Travel, Ms. Langis assigned a Class 3 rating, which envisions someone who cannot travel away from their residence without a support person. The evidence shows that the applicant uses public transit independently to travel to and from his part‑time job and occasionally drives short distances, although he is more anxious as both driver and passenger and often relies on his sons for longer trips. He avoids unnecessary driving and feels on edge when walking near parked cars, but he is not restricted to his home or to accompanied travel only. On a balance of probabilities, this is better described as a Class 2 (mild) impairment, where a person can travel independently but tends to restrict travel to familiar routes and environments.

Interpersonal Relationships

iv. A Class 4 rating in this domain presupposes that long‑term relationships have ended and that the person is unable to care for dependants. That is not the case here. The applicant remains married, continues to reside with his wife and sons, and maintains supportive relationships with his children, one brother in Canada, extended family in Pakistan, friends who visit weekly, and his manager and co‑workers. However, the marriage has been significantly strained, there was a brief separation after his discharge from hospital, and he describes increased irritability, arguments and social withdrawal compared to his pre‑accident functioning. I am satisfied that his previously stable relationships have been materially strained, but not dissolved, by his psychological injuries. I therefore find that Class 3 (moderate) impairment is the best fit.

Concentration, Persistence, and Pace

v. Both experts placed the applicant in the moderate range for this domain. The applicant reports difficulty sustaining attention, can concentrate for about 30 minutes before needing a break, and is unable to resume his pre‑accident tax practice, yet he is able to carry out the cognitive demands of his part‑time receptionist position by using strategies such as notes and reminders. This aligns with the Class 3 description, which contemplates difficulty with complex tasks and sustained reading but preservation of useful functioning, and I adopt a Class 3 rating.

Resilience and Employability

vi. Before the accident, the applicant worked full time in a demanding, self‑employed tax and property‑management practice and also held a part‑time job. He has been unable to return to that level or type of work. Instead, he has maintained a substantially less demanding part‑time role as a receptionist at a seniors’ residence for almost four years. This demonstrates resilience and some ongoing work capacity, but also a clear and permanent reduction in employability. In terms of Table 14-16, he cannot work at all in his pre‑accident occupation but can work in a less stressful position. I therefore find that a Class 3 (moderate) impairment is warranted in this domain.

100Arranging these six PIRS ratings from lowest to highest (2, 3, 3, 3, 3, 3), the two middle scores are 3 and 3. Their sum of 6 corresponds, under Table 14-17 of the AMA Guides, to a PIRS impairment score of 20%.

101Having re-evaluated the PIRS domains and accepting Dr. Eisen’s critique in part, I therefore adopt a PIRS impairment score of 20% based on the two middle class ratings.

102With a PIRS score of 20%, that value becomes the median when considered alongside the BPRS and GAF impairment scores from both assessors. Using Ms. Langis’s BPRS of 30% and GAF of 18%, the ordered scores are 18%, 20%, and 30%; using Dr. Eisen’s BPRS of 30% and GAF of 10%, the ordered scores are 10%, 20%, and 30%. In either case, the median is 20%.

103For these reasons, I find that a 20% WPI is the appropriate and evidence-based rating for the applicant’s mental and behavioural impairment.

104In summary, I accept the following WPI ratings: 15% for musculoskeletal system; 9% for scarring; 2% for treatment/medication; 25% for gastrointestinal; and 20% for mental and behavioural. Based on the combined values chart, these ratings equal a combined WPI of 54.5%, which corresponds to 55% when rounded to the nearest whole percent. Having met the 55% threshold, I find on a balance of probabilities that the applicant is CAT under Criterion 7.

Criterion 8

105Both parties made submissions regarding Criterion 8. Having already found that the applicant has met the definition of CAT pursuant to Criterion 7, I do not find it necessary to undertake a separate analysis under Criterion 8.

Is the applicant entitled to attendant care benefits?

106The applicant’s entitlement to attendant care benefits (ACBs) is in dispute. The applicant seeks $8,030.83 per month from February 17, 2023, onward.

107The applicant relies on an Assessment of Attendant Care Needs (Form 1) prepared by Sonia Sharma, occupational therapist, dated February 14, 2024, which recommends a total monthly attendant care amount of $8,030.83. The respondent takes the position that the claim is inflated and unsupported by the applicant’s demonstrated functional abilities, and relies on its own occupational therapy evidence and the opinions of its medical assessors, none of whom recommend attendant care.

108The applicant submits that he requires attendant care due to a combination of physical limitations, cognitive difficulties, and psychological symptoms. He relies on Ms. Sharma’s recommendation for significant basic supervisory care, and for assistance with activities including meal preparation, hygiene-related tasks, and “comfort, safety and security.” The applicant emphasizes that his wife and sons have assumed most cooking, cleaning, and grocery shopping responsibilities since the accident, and submits that he should not be denied an assessment or entitlement because his family has stepped in. The applicant further submits that he should be entitled to hire a personal support worker to relieve his family.

109In closing submissions, the applicant conceded that the Form 1 quantum of approximately $8,000 per month may be “on the high end” and suggested that a range of approximately $2,000 to $3,000 per month would be more accurate. However, no revised Form 1 or detailed breakdown in support of that range was provided.

110The respondent submits that the applicant has not met the burden of proof to establish that attendant care is reasonable and necessary. It argues that the applicant returned to work and continues to perform work-related tasks, which is inconsistent with a need for extensive supervision or attendant care. The respondent relies on the opinion of Joan Saunders, occupational therapist, who conducted an in-home and situational assessment in April 2024 and concluded that attendant care was not required. The respondent also relies on the opinions of its medical assessors, who concluded there was no medical, neurological, or psychiatric basis for attendant care.

111Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aid. The onus is on the applicant to establish entitlement to this benefit.

112I have considered the competing occupational therapy evidence and the parties’ submissions. I assign limited weight to the Form 1 prepared by Ms. Sharma insofar as it recommends extensive daily “basic supervisory care.” The supervisory care recommendation is driven primarily by a safety concern relating to access in and out of the home. On the evidence before me:

i. the recommendation was not grounded in direct observation of the applicant attempting to leave the home by the stairs identified as the primary hazard;

ii. Ms. Sharma acknowledged that installation of a simple handrail could address that specific hazard, which undermines the reasonableness of recommending prolonged daily supervision to manage a risk that is readily mitigated through an environmental modification; and

iii. the recommendation is difficult to reconcile with the broader evidence of the applicant’s functional abilities, including his ability to attend work shifts and to perform ongoing tax-related work.

113I give greater weight to the respondent’s occupational therapy evidence, which was based on in-home and situational observation of function. Ms. Saunders’ evidence supports that the applicant is capable of completing many activities of daily living independently, including stair negotiation using available supports, and the completion of functional tasks in the community and in the kitchen.

114That said, I do not accept the respondent’s position that no attendant care is required at all. I am satisfied that the applicant’s impairments, including pain, fatigue, and concentration difficulties, create a modest but real need for support with meal preparation and kitchen safety cueing. I accept that the family has assumed most cooking responsibilities. I also accept that there has been at least one safety-related incident in the kitchen, which supports a reasonable need for cueing and prompts, such as reminders to set a timer and to monitor stovetop use, to reduce risk and to support safe independence.

115I also accept that the applicant’s gastrointestinal impairment is chronic and disruptive, and that it can restrict his activities by requiring ready access to a bathroom and by creating anxiety about being away from home. These findings are consistent with my determination above in this decision regarding the nature and consequences of the applicant’s bowel impairment. However, the question before me under section 19 is whether those symptoms translate into a demonstrated need for an attendant to assist with personal care. On the evidence before me, I am not persuaded that the applicant requires attendant assistance with toileting or bathroom hygiene. The applicant has consistently reported that he continues to use the toilet independently, albeit with caution and a preference that someone be nearby. The activity restriction associated with bowel urgency may impact his social and recreational activity, but the restriction does not, without more, establish that the applicant requires hands-on assistance with toileting or personal hygiene within the meaning of section 19.

116I am also not persuaded that the applicant requires attendant care assistance for dressing, bathing, or grooming at the level reflected in the applicant’s Form 1. The evidence supports that the applicant is able to complete these tasks independently, albeit with pain and at a slower pace. Difficulty and discomfort, on their own, do not establish that an attendant is reasonable and necessary where the evidence supports the ability to complete the task using modified techniques, pacing, and existing supports.

117Having found that a limited amount of attendant care is reasonable and necessary, I find that the applicant is entitled to attendant care benefits for assistance with meal preparation and kitchen safety cueing. On the evidence before me, I find the reasonable need to be:

Activity	Minutes	Times per week	Minutes per week
Part 1:
Feeding provides assistance, either in whole or in part, in preparing, serving, and feeding meals	60	7	420
Total Part 1:			420

118Using the Form 1 methodology, 420 minutes per week equals 7.0 hours per week. Applying 4.3 weeks per month, this equals 30.1 hours per month. Using the Level 1 hourly rate of $14.90, this results in a monthly attendant care amount of $448.49.

Are attendant care benefits payable?

119Although I find that a limited amount of attendant care for meal preparation and kitchen safety cueing would be reasonable and necessary, the applicant has not met his onus to establish that attendant care expenses were incurred during the period in dispute within the meaning of section 3(7)(e) of the Schedule. Accordingly, no attendant care benefits are payable for the period February 17, 2023 onward.

120Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aid. Section 3(7)(e) provides that a person has “incurred” an attendant care expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.

121The definition of “incurred” in section 3(7)(e) of the Schedule sets out two categories of attendant care providers:

a. Professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and

b. Non-professional service providers.

122For the services of a non-professional care provider to be compensable under the Schedule, section 3(7)(e)(B) stipulates that the care provider must have sustained an economic loss as a result of providing the goods and services. In addition, under section 19(3)4 of the Schedule, the amount of ACBs payable is limited to the economic loss sustained by a non-professional care provider while, and as a result of, providing the attendant care.

123The applicant’s claim for incurred attendant care rests entirely on the economic loss sustained by his wife, Ms. Tayyaba Azam, when she took time off work to care for him. Ms. Azam testified that she took six weeks off work after his hospital discharge in 2021 to assist with his care, and that her income “went very down” as a result. As evidence of this loss, the applicant produced her T4 statements, which showed a decrease in income from $36,493 in 2020 to $34,106.89 in 2021.

124The respondent argues that the applicant has not met the burden of proof to show that an economic loss was actually sustained. It submits that the T4 statements are insufficient proof for an hourly employee with variable hours and that more direct evidence, such as a pay stub or a letter from her employer, was required. The respondent also points to inconsistencies in the evidence regarding the length of time Ms. Azam was off work, noting that the applicant had previously told an assessor it was only “a few weeks.”

125After considering the submissions, I find that the applicant has not established that any attendant care benefits are payable for the period in dispute before me. The evidence provided by the applicant, including the testimony of Ms. Azam and her T4 statements, all relates to a period of time immediately following his discharge from the hospital in 2021. However, the period for which attendant care benefits are in dispute in this hearing is from February 2023 onward. Even if I accepted that Ms. Azam sustained an economic loss in 2021, that would relate to a time frame that is not before me in this proceeding.

126The applicant has presented no evidence of any economic loss sustained by a non-professional caregiver, or any expense paid to a professional caregiver, from February 2023 onward. I have considered the applicant’s submission that his entitlement should allow him to hire a Personal Support Worker and that the respondent should not get a “discount” because his family has provided care. While I am sympathetic to this position, the Schedule is clear. The law does not permit a finding that benefits are payable based on entitlement alone; the statutory pre-condition that the expense must be “incurred” must be met. I find that the applicant has not demonstrated that any person who provided goods or services sustained an economic loss as a result of providing goods or services during the relevant period in dispute.

127As there is no evidence that any attendant care expenses were incurred from February 2023 onward, I find that no attendant care benefits are payable for the period in dispute.

Medical Benefits

128The applicant is also seeking entitlement to the following medical benefits:

a) $3,136.96 for Physiotherapy Services, in a plan dated June 13, 2023;

b) $3,775.69 for Psychological Services, in a plan dated June 12, 2023;

c) $808.00 for Massage Therapy, in a plan dated July 18, 2023;

d) $2,872.80 for Other Goods and Services, in a plan dated September 13, 2023;

e) $2,728.96 for Nutrition Counselling, in a plan dated November 17, 2023;

f) $4,806.68 for Social Work Counselling, in a plan dated December 5, 2023;

g) $864.05 for Chiropractic Services, in a plan dated June 26, 2024;

h) $3,524.68 for Chiropractic Services, in a plan dated June 24, 2024;

i) $1,590.65 for Nutritional Supplements, in a plan dated June 26, 2024;

j) $2,728.96 for Nutrition Counselling, in a plan dated September 4, 2024;

k) $3,775.69 for Psychological Services, in a plan dated September 18, 2024;

l) $2,339.25 for a Psychiatric Assessment, in a plan dated October 31, 2023; and

m) $45.19 for a blood pressure monitor, submitted on a claim form (OCF-6) dated September 4, 2024.

129To receive payment for medical benefits 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.

130After reviewing the evidence and the submissions from both parties, I make the following findings regarding the disputed medical benefits.

131I find that the applicant has met the burden of proof for the plan for Other Goods and Services in the amount of $2,872.80. This plan was for a concussion assessment by Dr. Warshafsky. I note that there were a number of references to head trauma that pre-date Dr. Warshafsky’s assessment, including the OCF-3 of Dr. Stavros dated August 26, 2021, the hospital record of Dr. Mughli, dated August 3, 2022, and an OT assessment dated February 21, 2022 where he reported headaches, decreased memory, and concentration issues. The applicant established that the goal was to assess the source of his cognitive complaints and to address his cognitive issues and confusion. This goal was achieved through the assessment itself, which not only provided expert evidence but also resulted in treatment recommendations from Dr. Warshafsky. However, this is an assessment and report within the meaning of section 25, and the accident occurred after June 3, 2019. Section 25(5)(a) therefore limits the amount payable for this assessment and report to $2,000 plus applicable HST. Accordingly, the plan is payable only up to that cap, being a maximum of $2,260.00 where HST applies.

132I find that the $45.19 for a blood pressure monitor is a reasonable and necessary expense. I accept, on a balance of probabilities, that the applicant developed post-traumatic hypertension as a result of the significant renal injuries sustained in the accident. This finding is supported by the medical evidence, beginning with his urologist, Dr. Klotz, who identified that the damage to his kidney created a risk for developing hypertension. This was followed by a diagnosis from his nephrologist, Dr. Tobe, who concluded the hypertension was secondary to the arterial injury and partial infarction of the kidney caused by the accident. While Dr. Maser acknowledged the possibility that the accident merely exposed a pre-existing condition, I give greater weight to the significant and extensively-documented kidney trauma and the lack of any pre-accident records of hypertension. Given that I accept that hypertension is an accident-related condition and its treatment requires daily medication, I find that the goal of monitoring his blood pressure at home is medically supported and necessary, and the cost is minimal and reasonable.

133The applicant has also met his burden for the $1,590.65 plan for Nutritional Supplements. The goal of this plan was to address his diagnosed anemia and ongoing diet issues. As noted earlier in this decision, the applicant was diagnosed with anemia following the accident and continues to require iron supplementation, and he has sustained permanent gastrointestinal consequences from the removal of approximately three quarters of his colon, including disrupted bowel habits and weight fluctuation. This position is strongly supported by the expert evidence, including recommendations from both Dr. Gould and Dr. Warshafsky. I find this expert evidence persuasive in establishing that the supplements are reasonable and necessary to assist in the applicant’s recovery. This plan is payable.

134With respect to the two plans for Psychological Services, each in the amount of $3,775.69, I find that the applicant has established these services are reasonable and necessary. The goal is to address the applicant’s pervasive and significant mental health diagnoses, which include Major Depressive Disorder, Posttraumatic Stress Disorder (PTSD), and Somatic Symptom Disorder with Predominant Pain. This need is supported by a consensus among experts, including psychologists Dr. Waxer, Dr. Gabidulina and Ms. Langis, who documented symptoms such as anhedonia, hopelessness, suicidal ideation, flashbacks, and avoidance behaviours. Significantly, the need for treatment was corroborated by the evidence of the respondent’s own expert, Dr. Eisen, who diagnosed both Major Depressive Disorder and PTSD. The proposed method involves continued sessions with a therapist with whom the applicant has already established a positive rapport, which the applicant testified was helpful and necessary to continue. The respondent raised a concern regarding the therapist’s supervision arrangement; however, the respondent has not directed me to any legal or regulatory authority that would prohibit such an arrangement or render the treatment non-compensable. In the absence of such authority, and in the face of the above-noted evidence of need, I give this concern little weight. I find on a balance of probabilities that these two plans are reasonable and necessary.

135The two plans for Nutrition Counselling, each in the amount of $2,728.96, are also payable. I accept the applicant’s argument that for an individual missing three quarters of his bowel, ongoing nutritional support would be essential. The evidence establishes that the applicant’s diet and weight improved during his previous attendance at these sessions. This, combined with supporting recommendations from experts like Dr. Warshafsky, is more persuasive than the respondent’s position that the counselling was unnecessary. I find on a balance of probabilities that the plans are reasonable and necessary.

136However, the applicant has not met the burden of proof for several other benefits. The claims for Physiotherapy Services, Massage Therapy, and two plans for Chiropractic Services were not sufficiently proven. The applicant grouped these distinct treatments together under the general heading of “physical treatment” and argued they were needed for conditioning. A general assertion of need is insufficient to meet the test set out in the Schedule. The applicant failed to address the specific goals, methods, or costs associated with each individual plan, making it impossible for me to determine if each one is reasonable and necessary. Therefore, the applicant is not entitled to these benefits.

137The applicant has also not met his evidentiary burden for the $4,806.68 plan for Social Work Counselling. While the applicant argued that social work would be important to help him reintegrate into the community, the submission lacked the required specificity. The goals were stated in only general terms, and the applicant did not address the particular methods proposed to achieve them or establish the reasonableness of the significant cost. This benefit is not payable.

138Finally, the claim for a $2,339.25 Psychiatric Assessment is also not payable. The applicant did not address this treatment plan in his submissions. There were no submissions made relating to its goals, how they would be achieved, or its cost. The complete absence of evidence or argument on this item means that the applicant has not met his burden of proof. I find on a balance of probabilities that the applicant is not entitled to this treatment plan.

Award

139The applicant sought an award under section 10 of Regulation 664. Under section 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.

140The applicant did not make submissions or direct me to any evidence in support of his claim for an award. Therefore, I find that the applicant is not entitled to an award.

Interest

141Interest applies on the payment of any overdue benefits, pursuant to section 51 of the Schedule.

Costs

142At the conclusion of the hearing, both parties made submissions on costs. The respondent sought costs for two days of hearing time, while the applicant sought costs for having to bring motions related to disclosure. The applicant’s request for costs for untimely disclosure and particularization of redactions in log notes was addressed in my oral ruling during the hearing on the applicant’s motion concerning the redacted log notes. In that ruling, while I found the respondent’s conduct did not meet the high bar required to pierce privilege, I noted significant concerns with its delay in producing the documents. I determined at that time that the appropriate remedy for the respondent’s procedural breaches would be addressed by way of costs, which I will now do.

143The respondent’s request for costs was based on several grounds. It argued that the applicant acted unreasonably by bringing two motions regarding document production that were ultimately unsuccessful. The respondent also submitted that the applicant caused unnecessary delay and expense by requesting a one-day adjournment due to a scheduling error, withdrawing the IRB claim at the start of the hearing after the respondent had incurred costs in preparation, and failing to call two of his own expert witnesses without sufficient notice.

144Under Rule 19 of the LAT Rules, costs may be awarded if a party has acted unreasonably, frivolously, vexatiously, or in bad faith. An award of costs is an exceptional remedy reserved for conduct that clearly falls below the standard expected of participants in the Tribunal’s process.

145After considering the parties’ submissions, I deny the respondent’s request for costs. I do not find the applicant’s conduct to have been unreasonable. The respondent’s position that the applicant’s motions were unreasonable simply because they were unsuccessful is not persuasive. As my earlier rulings indicated, the motions were a direct response to the respondent’s procedural failures. The applicant brought a motion to obtain the adjuster log notes that were not served until the week before the hearing, and a second motion was required to address the respondent’s initially unparticularized redactions. These were not frivolous proceedings.

146Furthermore, the respondent’s other grounds for costs are not persuasive. The IRB claim was withdrawn at the outset of the hearing, and I accept the applicant’s submission that there was a significant overlap in the witnesses for that issue and the attendant care claim. An applicant is entitled to withdraw their claim at any time. This is not grounds for costs. Secondly, the non-attendance of two of the applicant’s experts was addressed by giving the conclusions in their reports no weight, which is a more appropriate remedy than a costs award in these circumstances.

147In contrast, and in keeping with my earlier ruling, I found the respondent’s conduct regarding the production of its adjuster log notes fell short of its obligations. The respondent breached a case conference order by failing to produce the log notes until a few days before the hearing, despite the documents having been available for nearly five months. This delay caused unnecessary expense and consumed valuable hearing time that was dedicated to resolving the resulting disclosure dispute.

148This failure to comply with a Tribunal order was unreasonable and prejudiced the applicant by requiring him to litigate production issues that should have been resolved much earlier. This conduct justifies an award of costs in the applicant’s favour.

149In determining the appropriate amount, I recognize that the respondent’s breach necessitated motions that interfered with the efficient conduct of the hearing. However, I also consider as a mitigating factor that once I ordered the respondent to provide particulars for its redactions, its counsel complied promptly and took the initiative to provide further clarifications. This helped to remedy some of the prejudice caused. I also note that the log notes were not relied upon in support of any substantive submissions on entitlement to an award at the hearing. Considering any prejudice caused by the breach, balanced by the mitigating conduct, I find that a modest award is sufficient.

150For these reasons, the respondent shall pay costs to the applicant in the amount of $250.00.

ORDER

151For the above reasons, I find:

i. The applicant has established that he sustained a catastrophic impairment under Criterion 7, as defined in section 3.1(1)7 of the Schedule.

ii. The applicant has not established that attendant care benefits are payable for the period in dispute.

iii. The applicant is entitled to the following medical benefits in dispute:

a) $3,775.69 for Psychological Services, in a plan dated June 12, 2023;

b) $2,260.00 for Other Goods and Services (Concussion Assessment), in a plan dated September 13, 2023;

c) $2,728.96 for Nutrition Counselling, in a plan dated November 17, 2023;

d) $1,590.65 for Nutritional Supplements, in a plan dated June 26, 2024;

e) $2,728.96 for Nutrition Counselling, in a plan dated September 4, 2024;

f) $3,775.69 for Psychological Services, in a plan dated September 18, 2024; and

g) $45.19 for a blood pressure monitor, submitted on a claim form (OCF-6) dated September 4, 2024.

iv. The applicant is entitled to interest on any overdue benefits that were found to be payable.

v. The applicant is not entitled to an award.

vi. The applicant is entitled to costs in the amount of $250.00.

Released: January 27, 2026

__________________________

Christopher Yan

Adjudicator

Footnotes

1. 1The applicant’s expert reports rated the GI/colonic impairment as Class 2 (17% WPI). However, in closing submissions, counsel for the applicant argued that the totality of evidence supports a Class 3 impairment (25-39% WPI) and used a hypothetical mid-range rating of 32% WPI for calculation purposes. This hypothetical mid-range was not used in calculating the combined physical and mental and behavioural impairment of “up to 58%”.