Citation: Hamed v. Certas Home and Auto Insurance Company, 2026 ONLAT 25-000171/AABS

Licence Appeal Tribunal File Number: 25-000171/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:

Almohamad Hamed

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Mary Henein Thorn

APPEARANCES:

For the Applicant:

Georgiana Masgras, Counsel

For the Respondent:

Andrea R. Lim, Counsel

Court Reporter:

Leigh Masse & Kim Terryberry

Interpreter:

Mo Hassan, (Arabic language)

HEARD by Videoconference:

October 6,7,8,9,10, 2025

OVERVIEW

1Almohamad Hamed, the applicant, was involved in an automobile accident on September 15, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the start of the hearing the applicant advised the following issues were withdrawn:

i. Is the applicant entitled to $4,373.10 for a mental health assessment, proposed by Meditecs Independent Medical Examinations in a treatment plan/OCF-18 (“plan”) dated January 8, 2024?

ii. Is the applicant entitled to $3,412.60 for an optometry assessment, proposed by Meditecs Independent Medical Examinations in a plan dated January 8, 2024?

iii. Is the applicant entitled to $4,373.10 for a chronic pain assessment, proposed by Meditecs Independent Medical Examinations in a plan dated January 8, 2024?

iv. Is the applicant entitled to $4,113.10 for a neurosurgery assessment, proposed by Meditecs Independent Medical Examinations in a plan dated January 8, 2024?

v. Is the applicant entitled to $5,775.20 ($21,715.20 less $15.400 approved) for a catastrophic (“CAT”) assessment, proposed by Meditecs Independent Medical Examinations in a treatment plan dated January 8, 2024?

vi. Is the applicant entitled to $2,867.95 for an attendant care assessment, proposed by Meditecs Independent Medical Examinations in a treatment plan dated January 8, 2024?

vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

ISSUES

3The issues in dispute are:

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

ii. Is the applicant entitled to attendant care benefits in the amount of $2,532.20 per month from March 6, 2023, to ongoing?

iii. Is the applicant entitled to $3,791.00 for a physiotherapy assessment and services, proposed by Physio Art Rehabilitation in a plan dated October 4, 2024?

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

RESULT

4I find the applicant has not sustained a catastrophic impairment under criterion 7 and 8;

5The applicant is not entitled to attendant care benefits;

6The applicant is not entitled to the treatment plan for physiotherapy services; and

7No interest is payable.

PROCEDURAL ISSUES

Exhibit A

8The respondent filed a motion prior to the hearing requesting an order to exclude the items listed in Exhibit A contained in the applicant’s book of documents. It submitted that as the documents do not pertain to the applicant, they were included in error. The applicant conceded and agreed to the exclusion of the contents in Exhibit A.

Productions

9A second motion was brought forth by the respondent, for productions which it submits were not exchanged within the timelines ordered in the Case Conference Report and Order (“CCRO”) dated April 8, 2025. In the CCRO the parties were ordered to provide any documents they intend to rely on for the hearing by June 23, 2025. The respondent submits the applicant did not comply with the order, nor did he seek an extension of time from the Tribunal.

10The respondent submits it did not have an opportunity to review the records or get its assessors’ opinions on the records and as such it has been prejudiced. It requests the documents not be allowed into evidence pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, or at the very least given zero weight.

11According to the applicant, he made best efforts to adhere to the CCRO timelines. He submits that the requests were made and as soon as they were received, the documents were provided to the respondent immediately.

Clinical Notes and Records of Dr. Al-Rubaiee

12The respondent submits the clinical notes and records of Dr. Al-Rubaiee, the applicant’s Family Doctor, were not complete as when they was provided to the respondent, one page was missing from the records. The clinical note dated November 9, 2021, was provided to the respondent on September 15, 2025, after the ordered timeline in the CCRO.

13Regarding the missing page of the clinical notes of Dr. Al- Rubaiee, the applicant submits that all of the assessors reviewed and referenced his clinical notes and records, and there was no mention of a missing page. The applicant is not certain the page was actually missing. If it was, he submits it may have been a clerical error which often occurs, and the missing page does not warrant the removal of the doctor’s entire records. It would prejudice the applicant greatly if those records were to be excluded, whereas there is no prejudice to the respondent of their inclusion.

14With respect to Dr. Al-Rubaiee’s clinical note, I deny the respondent’s request. The clinical note of Dr. Al-Rubaiee will be admitted into evidence. I am not persuaded by the respondent’s submission that this one page was actually excluded or that it was prejudiced by the purported omission of this single page. I am persuaded by the applicant’s submissions that the assessors reviewed the notes and did not reference that a page was missing from the file.

Dr. Parkinson CNRs, OHIP Summary

15It also takes issue with the clinical notes and records from April 27, 2024, to December 6, 2024, of Dr. William Parkinson, Psychologist. It submits they were received on July 3, 2025, that the applicant’s updated OHIP summary from June 20, 2024 to April 2025 was received on September 15, 2025, and the applicant’s ODSP file dated May 20, 2025, was received by the respondent on September 15, 2025.

16Pursuant to the CCRO, the applicant advised the respondent in an email dated May 15, 2025, that he requested the updated clinical notes and records of Dr. Parkinson and once received he will provide them to the respondent. The records were received either July 2 or 3, 2025 and were promptly sent to the respondent. The applicant also points to the fact that neither the section 25 nor section 44 assessors made their determination using the doctor’s records as they did not have access to them. Therefore, there is no prejudice to the respondent. The same pertains to the updated OHIP summary from June 2024 to April 2025. The summary was requested on May 15, 2025, and received September 15, 2025, and the applicant advised the respondent in the same email as the request for Dr. Parkinson’s records. Again, the applicant submits there is no prejudice to the respondent.

17Pertaining to the updated OHIP summary, the applicant provided evidence at the hearing that it was sent to the respondent’s counsel in an email dated May 15, 2025, and therefore it should not be excluded. Respondent’s counsel confirmed the email address the email was sent to is correct. The evidence shows that the OHIP summary was provided to the respondent in May 2025. The respondent’s request to exclude this evidence is denied.

18Further, I find the applicant in each instance has been able to prove he has made best efforts to obtain the records and remain compliant with the CCRO. The applicant also has demonstrated that he advised the respondent that he was waiting for the records and once received they would be exchanged. The respondent has not demonstrated how it is prejudiced by the inclusion of Dr. Parkinson’s’ records, and I find it is not. The respondent’s request is denied.

ODSP File

19The respondent also submits the requested ODSP file was not produced by the applicant but appears in the applicant’s document brief for the hearing.

20The applicant provided evidence at the hearing that the respondent was advised in an email dated May 15, 2025, that the ODSP files dated May 20, 2025, and May 22, 2025, were attached, and a hyperlink was included in the body of the email. When the respondent opened the hyperlink, the ODSP files were not attached and the applicant did not advise the hyperlink would be updated. The applicant concedes the link was modified on May 22, 2025, to include the attachments. The applicant demonstrated at the hearing that the same number of pages provided in the link for the ODSP file (78 pages) were the same number of pages contained in the applicant’s document brief. Therefore, the respondent had access to those files well before the hearing and there is no prejudice to the respondent. Conversely, these records are important to the applicant’s defence as they speak to the applicant’s pre-existing condition, and if they are to be excluded it would greatly prejudice the applicant.

21I agree with the applicant. The respondent had access to the files, and the applicant would be prejudiced if they were excluded from evidence. The respondent’s request is denied.

OPP Records

22Lastly, the applicant included undated OPP records in his documents brief which were received September 15, 2025, by the respondent. The respondent submits it did not request the records, and these records are not relevant to the issues in dispute, therefore they should be excluded.

23The OPP file will not be excluded from evidence. The onus is on the applicant to lead evidence he feels will advance his case. I am not persuaded by the respondent’s submission that the OPP file is irrelevant in this matter as the applicant is seeking a catastrophic determination under two criteria. The respondent has not provided an argument as to how it will be prejudiced by this evidence. Therefore, the respondent’s request is denied and the file will be allowed into evidence.

ANALYSIS

24The applicant concedes he has a pre-existing history and diagnosis of Post Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder, learning disabilities, multiple concussions, cognitive issues, and mild to moderate hearing loss. However, he testified that as a result of the accident he suffers, neck, wrist (both right and left), right shoulder, right upper extremity, and upper and lower back pain. He also experiences numbness and tingling in his right hand. His pain is triggered when he moves his neck, for example when he is driving, lifting, reaching and gripping objects, and prolonged standing. He also suffers from ongoing headaches, dizziness, anxiety, and difficulty sleeping.

25The section 25 assessors concluded the applicant meets the 55% whole person impairment rating (“WPI”) threshold under criterion 7 and suffers from 4 marked impairments under criteria 8, therefore he should be designated catastrophically impaired under criterion 7 and 8 as a result of the accident.

26However, the section 44 assessors disagree and find the applicant suffers no more than 43% WPI under criterion 7 and only moderate impairments in three of the four spheres under criteria 8, therefore he is not catastrophically impaired in their opinion.

27The respondent relies on the opinion of its section 44 assessors and 18 days of surveillance it conducted between August 3, 2024 and March 25, 2025, in support of its position. It argues the totality of the evidence shows the applicant is not catastrophically impaired under either criterion.

28Further, it is the respondent’s position that the applicant has a significant pre-existing medical history which includes extensive psychological treatment and a long history of physical issues which qualified him for the Ontario Disability Support Program (“ODSP”) benefit prior to the accident. It submits these facts were not considered by the applicant’s assessors when making their determination, which means their assessment is not correct.

Catastrophic Impairment Criterion 7

29I find the applicant has not met his onus that his impairments meet the definition of a catastrophic impairment under criterion 7.

30To 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% 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 (“AMA Guides”), 6th edition, 2008 and is combined with the physical WPI rating from the 4^th edition of the AMA Guides using the Combined Values Table.

31The applicant relies on an OCF-19 dated May 17, 2024, signed by Dr. Joseph Kwok, Orthopaedic Surgeon, indicating the applicant suffers a catastrophic impairment under criterion 7. He also authored a Catastrophic (“CAT”) Executive Summary based on his own assessment and report dated April 4, 2024, and the assessments and opinions of Dr. Ahmed Jwely, Physiatrist, and his report dated March 25, 2024, and Mr. Justin Moy, Occupational Therapist, and his report dated April 30, 2024.

32Together, the applicant’s assessors opined the applicant has a WPI rating of 43% for his physical injuries and 20% for his psychological impairments, giving him a combined value whole WPI of 54%, which is then rounded up to 55% as per the AMA Guides.

33The respondent relies on the opinions of Dr. Khan, Physiatrist, and his Executive Summary Report dated November 14, 2024, an Addendum Report dated July 25, 2025, and a CAT Executive Summary Report dated July 25, 2025. It also relies on the opinion of Dr. Natasha Williams, Psychologist, and her Psychological Examination Report dated November 14, 2024, and a Psychology Addendum Report date July 25, 2025. It also relies on Dr. Joel Nathan Eisen, Psychiatrist and his Psychiatry Examination Report dated November 14, 2024, and a CAT Psychiatry Addendum Report dated July 25, 2025. Lastly it also relies on an In-Home Occupational Therapy Assessment Report authored by Ms. Leslie Hisey, Occupational Therapist, dated November 14, 2024, and her CAT Occupational Therapy Addendum Report dated July 25, 2025.

34The respondent’s assessors opine the applicant’s WPI rating does not meet the test for a catastrophic impairment under criterion 7. Dr. Williams and Dr. Eisen disagreed on the psychiatric WPI ratings resulting in an overall 43% and 36% WPI rating, neither of which meets the threshold for criterion 7.

35Section 25 assessor Dr. Kwok and section 44 assessor Dr. Khan disagreed on the ratings for medication, Occipital Neuralgia/Headache, sleep, upper extremity, and Adjustments for effects of treatment.

0% Occipital Neuralgia/Headache

36The applicant testified and reported to his assessors that he suffers from intermittent headaches multiple times per week that are severe in nature and are exacerbated with physical exertion, neck pain, poor sleep, light sensitivity, stress, anxiety, concentration and weather changes. Prior to the accident he testified he did not experience headaches. In support of his position, he relies on the opinion of Dr. Kwok and a WPI rating of 5%.

37The 4^th edition of the AMA Guides addresses headaches at section 15.9. WPI ratings can only be assigned for a permanent impairment, meaning a condition that is stable and unlikely to change in future months despite medical or surgical therapy. The AMA Guides state that the vast majority of patients with headaches will not have permanent impairments, but headaches can present in a persistent, constant form.

38The AMA Guides state that impairment related to headaches should be estimated according to the procedure set out in section 15.8, using a Pain Intensity-Frequency Grid with categories for the frequency of pain (i.e. intermittent, occasional, frequent, and constant) on one axis and for the intensity of pain (i.e. minimal, slight, moderate, and marked) on the other. This is a qualitative assessment that does not translate to a percentage rating for WPI. The AMA Guides state that in some cases, such a rating may be determined if the condition causing the pain can itself be evaluated according to the criteria applicable to a particular organ system. For example, a WPI may be derived for trigeminal neuralgia by referring to the impairment criteria for the trigeminal nerve.

39Dr. Khan objects to the rating advanced by Dr. Kwok in his capacity as an Orthopaedic Surgeon. He testified that the role of an Orthopaedic Surgeon is to assess musculoskeletal impairments only not to assess or treat headaches, rather it should be assessed by a Neurologist.

40The applicant argued at the hearing that Dr. Khan’s objection to the rating is incorrect, and it is within Dr. Khan’s scope of expertise especially since within his CV it indicates neurology as a field of study. Dr. Khan re-iterated that it is not within his scope to provide a rating as headaches may be caused by a variety of different causes even though it indicates in his CV neurological studies.

41The respondent points to overuse of medication as one of the reasons for the applicant’s ongoing headaches. Dr. Ida Cavaliere, Physiatrist, assessed the applicant on October 19, 2023, her opinion is that the applicant suffers post-traumatic headaches, mixed cervicogenic and migrainous features, confounded by medication overuse. The applicant confirmed during his assessment with Leslie Hisey that he was in fact getting confused, was taking double the prescribed medication and one time ended up in emergency as a result.

42I am persuaded by Dr. Khan’s explanation that a Neurologist would be the most suited to determine if a rating should be advanced for headaches. I agree that Dr. Kwok is not best suited to assess the root cause of headaches as there may be a number of contributing factors, including medication overuse as indicated by Dr. Cavaliere. I also find in Dr. Kwok’s report there is little to no analysis to support his finding, he relies heavily on the applicant’s subjective reporting.

43In the absence of a more reliable opinion, I am not persuaded a 5% rating should be applied, instead I am assigning a rate of 0% because….

44Given that I have found the applicant should not be advanced a rating for “headaches”, the applicant has not met his onus to demonstrate that he meets the WPI rating of 55%. For the sake of completeness, I will continue to analyze the remainder of the ratings.

0% WPI Rating for Sleep

45The applicant complained of the inability to sleep at night due to pain, stress, anxiety and nightmares. In order to assist with a better sleep, he was prescribed medication. He reported to the assessors that he now sleeps an unusual amount of time during the day, he has difficulty staying out of bed, he is unmotivated and has very low energy on a daily basis.

46Section 4.1e of the AMA Guides addresses sleep disorders caused by impairments of the cerebrum or forebrain.

47Table 6 at page 143 of the AMA Guides provides that a rating of 1% to 9% WPI may be assigned for reduced daytime alertness with a sleep pattern such that the patient can carry out most daily activities.

48Dr. Jwely opined the applicant suffers from Hypersomnia which results in chronic fatigue and affects his activities of daily living. As a result of Dr. Jwely’s opinion, Dr. Kwok assigned a 9% WPI rating for sleep disturbances and reduced alertness in the daytime based on the applicant’s subjective reporting and records reviewed. He also opined that his disturbed sleep was a symptom of major depressive disorder with anxiety and post traumatic stress disorder. The applicant did not advance a sleep study in support of the rating.

49The respondent disagrees with Dr. Kwok’s rating for a couple of reasons. First, it submits it is well documented that the applicant has had a long history of unresolved sleep issues prior to the accident. Secondly, the video surveillance does not support the applicant’s reporting to the assessors that he sleeps the majority of the day and has very little energy.

50The respondent’s assessor, Dr. Williams, testified that to diagnose a sleep impairment and provide a rating, it would require a sleep expert, and it is outside of her professional scope.

51The respondent points to documentation in support of its position. In a pre-accident notation contained in Dr. Harish Srini’s clinical notes and records from the Mood Disorders Clinic dated October 17, 2019, and again on December 5, 2019, it indicates the applicant suffers from interrupted sleep and low energy after the beginning use of the medication Risperidone. Further, in a pre-accident record of Psychiatrist Maha Eltayebani dated September 9, 2020, it indicates the applicant discontinued the use of Risperidone and reduced the intake of Venlafaxine on his own volition due to over-sleepiness and low energy. As well in the Health Status Report of the Ministry of Community and Social Services it indicates the applicant suffered from major depressive disorder/mood disorder, chronic fatigue, worrisome thoughts, and poor sleep amongst other impairments.

52Further, Dr. Khan and Dr. Eisen do not agree with a sleep rating. They both point to the applicant’s pre-existing medical history and the diagnosis of major depressive disorder and agree there is not a basis for this rating.

53The surveillance conducted between August 3, 2024, and March 25, 2025, shows the applicant leading a very active lifestyle, one which does not support this rating. Within the surveillance file the applicant is observed going on outings with his children to coffee shops and other venues, running errands, driving his e-bike, conducting home maintenance tasks, entertaining friends/family, smoking shisha, performing automotive repair, and selling a vehicle. I find these activities contradictory to his reporting to the assessors that he sleeps all day, has no motivation and cannot function, Therefore I give little weight to the opinion of his assessors as it is largely based on the applicant’s subjective reporting. Dr. Khan agrees, and he testified at the hearing that someone with these kinds of impairments could not function the way the applicant appears to be functioning in the surveillance.

54I do not put weight on Dr. Kwok’s rating of 9% for a sleep impairment and find the correct rating should be 0%. Although the applicant has been prescribed sleep medication and testified that he has sleep disturbances due to ongoing pain and anxiety, I am not persuaded a rating is appropriate because the applicant does not claim nor does the evidence show that he sustained a neurological injury and a WPI rating for a sleep disorder is not available under this section of the AMA Guides. Sleep disorders caused by mental or behavioural disorders, and pain impairments are assessed in different chapters.

55I find in the absence of any neurological injuries, a rating should not be applied, therefore I assign a WPI of 0%.

Total WPI 10% for Upper extremities: 5% Right, 5% Left Shoulder and Grip Strength

56I find the upper extremity rating for the right and left shoulder should be rated at a 5% WPI rating for each shoulder, totalling 10% WPI.

57Per Section 3.1j of Chapter 3 of the AMA Guides, under Shoulder, a WPI% rating is permitted for impairments due to abnormal shoulder motions (flexion and extension, abduction and adduction, internal and external rotation).

58Per Section 3.1m of Chapter 3 of the AMA Guides, under Impairment Due to Other Disorders of the Upper Extremity, in rare cases, a WPI% rating is permitted for loss of grip strength. Further, per page 64 of Chapter 3 of the AMA Guides, under Strength Evaluation, because strength measurements are functional tests influenced by subjective factors that are difficult to control, and the AMA Guides for the most part is based on anatomic impairment, they do not assign a large role to such a measurement.

59The upper extremity ratings for the right, left shoulder and grip strength are combined in accordance with Table 3 of Chapter 3 of the AMA Guides, under Relationship of Impairment of the Upper Extremity to Impairment of the Whole Person, to calculate the WPI% rating.

60The applicant testified he has pain in his right and left shoulders which hinders his ability to reach up, lift, push and pull. He relies on an assessment by Dr. Kwok, who rated the applicant with a 6% WPI rating for each shoulder.

61Justin Moy also conducted an Active Range of Motion (AROM) Test during his In-Home Occupational Therapy assessment and concluded that while the applicant did show a restricted range in motion in his shoulders, he has a moderate restriction. He also administered Manual Muscle Testing (MMT) and opined the applicant rated fair + however, in a grip strength test the applicant performed below his age and gender norms, indicating he was affected by pain.

62The respondent submits Dr. Khan’s assigned WPI rating at 5% for each shoulder should be favoured.

63Leslie Hisey found in her assessment of the applicant that he had greater ranges of motion informally in his shoulders than formally. Similar to the findings of Justin Moy’s assessment, Ms. Hisey determined after a series of tests the applicant was able to reach at, above and below his shoulder heights with some complaint of pain to the bilateral top of his shoulder, he had moderate restrictions which means he had a 75% or more range of motion.

64She also testified that during informal observation, while on a break from testing, she observed the applicant leaning back with his hands on top of his head, clasping his hands with his shoulders flexed and abducted over 90 degrees for 13 minutes, indicating he has a close to normal range of motion.

65The respondent also pointed to several instances in the surveillance material where the applicant was observed in activities which required pushing, pulling and reaching. It points to examples such as leaning and reaching deep inside his vehicle near the motor to work on a car repair, reaching over his head for a continuous and significant period of time to install what appears to be an outside camera, that he was observed carrying multiple chairs at the same time to set up for a social gathering at his house and other examples of the use of both shoulders. After reviewing the surveillance, Dr. Khan opined at the hearing that someone who has severe restrictions could not move in that manner.

66I prefer the opinion of Dr. Khan over that of Dr. Kwok. Based on the findings of the overall agreement between Mr. Moy, Ms. Hisey and Dr. Khan as to their finding the applicant has limited restrictions. I find the applicant may have some restriction due to pain in both shoulders but in more instances than not he has an extensive range of motion and functional use of both shoulders.

67This is further evidenced by the surveillance material viewed at the hearing. I am not persuaded on a balance of probabilities the applicant has such restrictions to his shoulders that it impacts his ability to function on a daily basis.

68For these reasons I find the WPI rating for his upper extremities should be 5% percent for each shoulder.

0% WPI Adjustments for Effects of Treatment

69I find a WPI rating of 3% for the category of adjustments for effects of treatment within the AMA Guides is unwarranted.

70The AMA Guides provide that an adjustment for the effect of treatment can be made in two circumstances. First, treatment may result in the apparent remission of the person’s symptoms, but it is still debatable as to whether the person has regained their previous status of good health. This may be the case for a person receiving treatment for hypothyroidism or diabetes. In that event, the assessor may increase the impairment estimate by a small amount, such as 1% to 3%. Second, treatments such as immunity-suppressing pharmaceuticals or anti-coagulants may cause their own impairments. In that case, the assessor should use the appropriate parts of the AMA Guides to evaluate the impairment, or if such information is lacking, the assessor may combine an estimated impairment percent with the primary organ system impaired.

71The AMA Guides do not provide that an adjustment of 1% to 3% can be made to account for treatment burden. Treatment burden falls outside the definition of impairment in the AMA Guides as “the loss, loss of use, or derangement of any body part, system, or function”.

72Dr. Kwok assigned a rating of 3% for medication without providing a detailed explanation as to why the rating was assigned in his report.

73The applicant testified he was taking psychotropic medication and anti-depressants pre-accident, but an exacerbation of his psychological impairment has resulted in a revision in his psychotropic medication. He has also received cortisone injections to treat his back and neck pain and has been taking pain medication. He submits that for those reasons the rating of 3% should stand.

74Dr. Khan disagrees with this rating for two reasons. First, he testified that it is outside of Dr. Kwok’s scope of expertise as an Orthopaedic Surgeon to assess and determine the effects of the medication the applicant is taking and assign a rating. Secondly, both Dr. Khan and Dr. Williams agree it is well documented in the applicant’s medical records that the medication he has been taking post accident has been the same if not less than pre-accident. Therefore, given that there are no new medications related to the subject accident, a rating should not be advanced and both doctors assigned a WPI of 0%.

75I find a WPI rating of 0% should be applied to this category. Given that Dr. Kwok did not provide an analysis to justify the rating of 3% I give it little weight. I disagree that the applicant’s change or slight increase in medication warrants a WPI rating of 3% within the category of adjustments for effects of treatment within the AMA Guides because I find very little treatment burden or an affect on his activities of daily living. I assign a 0% rating in this category.

Right and left Wrist

76The applicant does not suffer a wrist impairment which warrants a 2% WPI rating.

77Section 25 assessors Dr. Kwok and Justin Moy arrived at different conclusions after assessing the applicant. Dr. Kwok physically assessed the applicant after pain complaints to the wrists and found he suffered significant strain/sprain, tenderness and a reduced range of motion to both of his wrists as a result of the accident. In his opinion, injury to the intra-articular structures cannot be ruled out therefore an assigned WPI rating of 2% in his opinion is appropriate.

78In his Occupational Therapy In-Home Situational Assessment report, Mr. Moy conducted a series of tests to assess any impairments to the applicant’s wrists and concluded the applicant’s wrists were “good” and within the normal range of motion.

79Dr. Khan argues that there is no medical imaging that he was referred to that supports Dr. Kwok’s opinion, nor does his examination of the applicant substantiate Dr. Kwok’s findings. In his assessment, the applicant had a normal range of motion. Dr. Khan testified that since he assessed the applicant after Dr. Kwok it is possible the applicant had some tenderness in that area, but it has since subsided, and no rating should be attributed to the wrists.

80The AMA Guides require specific objective criteria in order to render a rating. I am not persuaded that Dr. Kwok’s inability to rule out an injury to the intra-articular structures of the wrist substantiates a WPI rating because without more objective evidence.

81Further, I find in the absence of a consensus from Dr. Khan and Justin Moy who also examined the applicant or any other objective findings such as diagnostic imaging, I am unable to accept Dr. Kwok’s 2% rating because….

82I find a 2% WPI rating for the left and right wrists are incorrect and not warranted.

Psychiatric Impairments

83On a balance of probabilities, I find the applicant suffers a 10% WPI rating for a psychiatric impairment.

84Section 25 assessor Dr. Jwely and section 44 assessor Dr. Williams agreed on a 20% WPI rating for a psychological impairment. However, section 44 assessor Dr. Eisen disagreed with Dr. William’s opinion and rated the applicant with a 10% WPI for his psychological impairments.

85Dr. Williams testified that the extent of the applicant’s pre-accident psychological history was not completely disclosed and as such she attributes a partial exacerbation of the applicant’s psychological impairment to the accident with a WPI rating of 20%.

86All three assessors diagnosed the applicant with Major Depressive Disorder and Somatic Symptom Disorder.

87Dr. Jwely diagnosed the applicant with Specific Phobia (in vehicle driver/passenger), Dr. Williams agrees and Dr. Eisen indicates in his report that there is a possibility the applicant may fall within this diagnosis.

88Dr. Eisen reviewed the applicants pre-existing condition and apportioned for those conditions. Dr. Eisen disagrees with the opinions of Dr. Jwely and Dr. Williams as he opines they did consider the applicant’s pre-existing conditions and properly apportion when making their determinations. He points to the applicant’s poor pre-accident functioning, his pre-existing disability and major psychopathy and more importantly they did not consider the applicant’s psychotic symptoms which he opines would rarely if ever be a feature of a post accident psychopathy.

89He points to the Health Status Report from the Ministry of Community and Social Services dated July 13, 2021, which was authored approximately two months prior to the subject accident and the Mental Health Report from St. Joseph’s Healthcare dated September 23, 2021, which was authored eight days prior to the accident. Both reports conclude the applicant suffers from a learning disability, illiteracy, poor comprehension, cognitive deficits, a diagnosis of major depressive disorder/mood disorder, chronic fatigue, suicidal ideation, worrisome thoughts, visual hallucinations, short attention span, difficulty articulating, poor sleep and hopelessness. The report classifies the applicant as a Class 4 (unsafe/severe symptoms or signs) in the categories of consciousness, emotion, impulse control and learning which means that the applicant requires assistance from another person in order to complete a specified activity. In the opinion of the authors, the applicant’s impairments are expected to be continuous without improvement over time.

90Dr. Eisen opines the applicant had extensive psychiatric impairments just prior to the accident which were only slightly exacerbated by the accident. He finds there are not any examples of worsening of the applicant’s psychological condition nor are there any indications the applicant’s ability to function has significantly changed.

91I prefer the opinion of Dr. Eisen over Dr. Williams and Dr. Jwely as I am not persuaded the applicant’s pre-existing functioning, disability and psychopathy was fully considered by the s. 25 assessors when determining a pre-accident baseline.

92I am not persuaded by the applicant’s testimony and reporting to Dr. Williams and Dr. Jwely that, because he was no longer being psychiatrically treated and was functioning well prior to the accident, a majority of his current psychiatric issues are as of a result of this accident. I find it is clearly noted in his psychiatric records of Health Status Report from the Ministry of Community and Social Services and Mental Health Report from St. Joseph’s Healthcare that he had significant psychiatric issues including learning disabilities, cognitive deficits, a diagnosis of major depressive disorder/mood disorder, chronic fatigue, worrisome thoughts, visual hallucinations, short attention span, difficulty articulating, poor sleep and hopelessness, which impeded his ability to function well before the accident. I agree with Dr. Eisen’s finding that there is very little evidence that his level of functioning pre and post accident has significantly changed.

93The applicant reported to the assessors that he experienced driver/passenger anxiety, which resulted in a diagnosis of Specific Phobia (in vehicle driver/passenger) by Dr. Williams and Possible Specific Phobia (passenger travel) by Dr. Eisen. Dr. Eisen prefaced his diagnosis saying that in an effort to err on the side of the applicant, this diagnosis is a possibility, but he hesitated to confirm the diagnosis. I agree. I find at best the applicant’s diagnosis is mild based on the content of a surveillance report dated Jan 14, 2025, presented by the respondent at the hearing. Throughout the months of surveillance conducted, there are numerous examples where the applicant was surveilled consistently driving an e-bicycle/motorcycle sometimes with a child riding on the back without wearing a helmet, driving an automobile, and travelling as a passenger in another vehicle. I find very little avoidant behavior in the surveillance material which would be consistent with the applicant’s reported driver/passenger anxiety.

94Given my finding that Dr. Jwely and Dr. Williams did not properly apportion the applicant’s significant pre-existing psychological impairments and the cautionary diagnosis of Somatic Symptom Disorder along with the Specific Phobia, Situational (in-vehicle driver/passenger) disorder, I prefer Dr. Eisen’s 10% WPI rating for his accident-related psychiatric impairments.

95In sum, for the reasons set out above, the applicant has not met his onus to prove he suffers catastrophic impairment under criterion 7.

Catastrophic Impairment Criterion 8

96The applicant does not meet the CAT threshold under Criterion 8.

97Impairments under Criterion 8 are assessed under Chapter 14 of the AMA Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The AMA Guides sets out the four spheres of functioning and the levels of impairment as 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
Adaptation (Deterioration in a work-like setting)

98In support of the applicant, Dr. Kwok signed an OCF-19 dated May 17, 2024, indicating the applicant suffers a catastrophic impairment under criterion 8. He also authored a report and opined the applicant suffers a class 4 marked impairment in the spheres of Social Functioning, Concentration, Persistence and Pace and Adaptation based on his assessment and the opinions of Dr. Jwely, and Mr. Moy.

99The respondent relies on surveillance video, reports and the executive summary written by Dr. Khan dated July 25, 2025. Dr. Khan relies on the opinions of Dr. Williams, Dr. Eisen and Leslie Hisey. Dr. Khan concluded the applicant is not impaired under criterion 8.

100Given that both parties’ assessors have determined the applicant does not suffer a class 4 marked impairment in the sphere of activities of daily living, I will not conduct any further analysis in this sphere and accept their findings.

101While Dr. Williams and Dr. Eisen disagreed on the ratings, they both opined the applicant does not meet the threshold for a catastrophic impairment as demonstrated in the tables below.

[102]

Dr. Natasha Williams

Dr. Eisen

Social Functioning

103I find the applicant has not met his onus on a balance of probabilities that he suffers a marked impairment in this sphere.

104According to the AMA Guides, this area of social functioning refers to an individual’s capacity to interact appropriately and communicate effectively with other individuals such as family and friends, neighbours, clerks and others. It is not only the number of aspects in which social functioning is impaired that is significant, but also the overall degree of interference with a particular aspect or combination of aspects.

105According to the applicant and his wife’s testimony, the applicant’s social life has completely changed. He used to enjoy socializing, playing soccer, swimming, going to the community centre with his children, smoking shisha, cycling, spending time with friends and being outdoors but now he finds himself irritable, raising his voice, in bed most of the time and not wanting to be around people. His wife testified that she pushes her husband to socialize with one friend even though he may not want to in an effort to change his mood.

106Dr. Jwely, Mr. Moy and Dr. Kwok assessed the applicant and found the applicant has a class 4 marked impairment in this sphere.

107Dr. Jwely indicated in his report that the applicant had a history of psychiatric impairments, but his symptoms were managed through prescribed medication and lifestyle changes which improved his psychological issues. Mr. Moy identified depression as the applicant’s only pre-accident impairment. Both assessors relied on the applicant’s reporting, collateral interviews, and review of his medical documentation including the clinical notes and records from the St. Joseph’s Healthcare Hamilton Mood Disorders Clinic dated May 26, 2021.

108During Mr. Moy’s assessment on April 30, 2024, the applicant reported he was unable to return to his pre-accident activities due to ongoing physical, cognitive and psycho-emotional impairments. He chooses to have very little interaction with people due to his low mood, depression, irritability and chronic pain. He advised Mr. Moy that no one comes to visit any more, no one calls, and he does not actively socialize. Further, both he and his wife indicated to Mr. Moy and testified at the hearing that his irritability has caused tension between his wife and his children. He attributed these changes to impairments caused by the accident.

109Mr. Moy relied on the reporting of the applicant, collateral interview with his wife, review of the applicant’s medical history and his own assessment. Although the applicant cooperated, there were some challenges during the assessment. For example, when asked to participate in an outdoor community functional activity assessment, the applicant declined to participate citing issues with intensifying headaches, dizziness, fatigue and pain symptoms.

110At the end of the assessment Mr. Moy concluded the applicant has significant impairments in the area of social functioning.

111Dr. Jwely interviewed the applicant, reviewed his medical information and conducted psychometric testing and a mental status examination. Upon completion he opined the applicant suffers a severe inability to deal with unfamiliar people, maintaining friendships, establishing close relationships and forming new friendships.

112Based on the opinions of these assessors Dr. Kwok opined the applicant meets the criteria for a class 4 marked impairment in this sphere.

113The respondent asks the Tribunal to prefer the opinion of its assessors Dr. Eisen, Dr. Williams and Ms. Hisey who opined the applicant does not suffer a marked impairment in this sphere. It argues the section 44 assessors evaluated the applicant’s significant pre-accident history and arrived at a more accurate baseline.

114It also points to the surveillance conducted over 18 different days. The surveillance shows the applicant engaging in the sale of a vehicle with an assumed stranger, fully socializing with friends, setting up chairs in anticipation of visitors coming to his home and later partaking in a hookah. He was also observed on many occasions tending to his children, talking on a cell phone, out and about with his family, going to a Tim Hortons and a Dollarama interacting appropriately with the staff, and socializing with more than one person.

115It also argues that the applicant had ongoing significant psychiatric problems which included hallucinations, and suspiciousness prior to the accident that made it difficulty to have basic social interactions outside of his household as indicated in the Health Status Report, Ministry of Community and Social Services. In a note dated May 22, 2021, the applicant reported to Dr. Maha Eltayebani, Medical Doctor from the Mood Disorders Clinic, that he experiences persecutory ideations and that when he sees a post of one of his Facebook friends, he believes the post is directed at him and that he is being referred to in a bad way. In another note dated February 2, 2020, the applicant reported that he lost his father two years ago and since then he feels isolated and refuses to get along with other people.

116I am not persuaded by the findings of the section 25 assessors. I find that they undervalued the applicant’s significant pre-existing psychiatric history and did not have an accurate pre-accident base line to make a determination. It is clear from the medical records his impairments existed prior to the accident and the impairments have consistently impeded his his activities of daily living.

117I also find the surveillance material persuasive. The stretch of surveillance material over a significant period of time shows the applicant engaging in a very active and social life with many interactions with different individuals despite his psychological impairments.

118For those reasons I find the applicant does not have suffer a class 4 marked impairment in this sphere.

Concentration Persistence and Pace

119I find on a balance of probabilities the applicant does not suffer a class 4 marked impairment within this sphere.

120The AMA Guides defines this sphere as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in concentration, persistence and pace are best noted from previous work attempts or from observations in work-like settings. The AMA Guides specify that psychological tests are useful in assessing intelligence, memory, and concentration. Frequency of errors, the time it takes to complete a task and the extent to which assistance is required to complete a task is also considered.

121The applicant and his wife testified that since the accident the applicant has a decreased memory, difficulty concentrating, focusing, and is easily distracted. As a result, it affects his ability to mange his day-to-day activities and makes him irritable and frustrated. Together they testified the applicant cannot keep track of anything and his wife has the added burden of taking care of him.

122The applicant’s assessor Dr. Jwely, opined the applicant suffers a class 4 marked impairment in this sphere due to an exacerbation of his pre-existing Major Depressive Disorder. Based on his assessment he opined that applicant’s psychological impairments are markedly increased because of the accident. He further opined an adjustment of the applicant’s psychotropic medication and psychotherapy treatment are geared specifically to address post accident issues such as heightened anger, nervousness, altered sleep patterns and suicidal ideation which the applicant reported are new impairments.

123Dr. Eisen disagrees with Dr. Jwely’s opinion. He opined that the applicant has a well documented medical history of cognitive issues which includes a learning disability, literacy, poor comprehension, cognitive deficits, major Depressive Disorder/Mood Disorder, chronic fatigue, suicidal ideation, worrisome thoughts, visual hallucinations, short attention span, difficulty articulating, poor sleep, and hopelessness which all impair his ability to think critically, organize and concentrate. After assessing the applicant, he opined there is little deterioration post accident in this sphere and assessed the applicant with a class 1 impairment.

124Dr. Williams and Dr. Eisen had a difference in opinion in their impairment ratings: class 1 mild vs class 3 moderate, respectively. When assessing the applicant Dr. Williams indicated that there were discrepancies between the applicant’s subjective reporting and her objective findings when she administered the psychometric tests and assessed the data.

125Dr. Williams was asked at the hearing to explain the difference of opinion between herself and Dr. Eisen. She testified the reason is because she was not privy to the applicant’s pre-accident history when assessing the applicant.

126The respondent relies on video surveillance taken on 18 different days. It shows the applicant participating in a number of activities that requires concentration, persistence and pace. The applicant was seen driving a car and e-bicycle with his child as a passenger on several occasions sometimes for a period of 20 minutes or more. It is the respondent’s position that to be able to drive especially with his child as a passenger proves the applicant has an ability to concentrate and focus when needed. The applicant was also observed taking a bus and arriving at his destination, placing an order at Tim Hortons, banking, using his cell phone, interacting with a sales agent and taking an SUV for a test drive at a dealership. Further, during the same surveillance period, the applicant was observed exchanging money with a tow truck driver in what appears to be the sale of a vehicle. The applicant confirmed in his testimony that he was in the process of selling his van at that time. On January 14, 2025, the surveillance reflected the applicant running errands and then installing a camera on the outside of his home. The respondent argues all of these activities require a level of persistence, pace and concentration, which the applicant was able to maintain.

127I am not persuaded by the totality of the evidence the applicant suffers a class 4 impairment in this sphere.

128Particularly, Dr. Jwely’s assessment that the applicant suffers a severe exacerbation of his symptoms as a result of the accident warranting a class 4 impairment.

129I find it is well documented in the medical records from the Mood Disorders Clinic that there has been an ongoing adjustment of the applicant’s medication pre and post accident in order to deal with the different psychiatric issues the applicant has. As per the analysis above it has been determined there has not been a significant change in the applicant’s medications and the applicant himself testified that prior to the accident there were several revisions to his medications to offset some of the side effects he was experiencing.

130The Moods Disorder Clinic documented on May 19, 2021 that his medication was reduced due to elevated blood pressure readings but since the reduction in his medication he is within normal range. On May 19, 2021, the applicant reported to the doctor Luciano Minuzzi of the Moods Disorder Clinic that he had discontinued the use of Venlafaxine to 37.5 mg/per day without medical instruction because it gave him frequent headaches and over sleepiness.

131The surveillance evidence also does not support Dr. Jwely’s findings. The applicant on numerous occasions demonstrates he has an ability to persist, when need be, for example when he was changing the oil in his car or installing the videocamera in the front of his house. He is able to concentrate to drive, with his child on the back of an e-bike and engage in a transaction to sell his vehicle and take a new vehicle on a test drive.

132For all of the reasons mentioned above, I am not persuaded by the applicant meets a class 4 impairment on a balance of probabilities in this sphere.

Adaptation

133The AMA Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances, in the face of which “the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate or having difficulty maintaining activities of daily living, continuing social relationships, and completing tasks.” By definition, impairment in adaptation affects the ability to function across all activity areas. Regarding activities of daily living, their quality is judged by their independence, appropriateness, effectiveness, and sustainability.

134Dr. Jwely opined the applicant has a significant impairment in the sphere of adaption and gave him a class 4 marked impairment. In his opinion, the applicant’s diagnosis of Major Depressive Disorder and anxiety significantly impedes his ability to handle stress, complete tasks and manage in a structured environment. His increased irritability, difficulty concentrating, and sleep issues obstruct his ability to manage in a structured environment. He also opined the applicant’s demonstrated inability to make decisions, maintain a schedule, interact with others all impact his ability to adapt.

135In a pre-accident clinical note documented by Dr. Zaid Al-Rubaiee dated July 13, 2021, he noted the applicant has a short attention span which results in difficulty completing tasks. He has a severe lack of focus, concentration, motivation and it takes him an inordinate amount of time to make decisions due to his inability to focus.

136Again Dr. Williams and Dr. Eisen disagreed on the ratings, but Dr. Williams testified that she did not have the applicant’s pre-accident history when forming her opinion. Therefore, I give more weight to the report of Dr. Eisen than that of Dr. Williams.

137Dr. Eisen argues the applicant was already on a disability pension prior to the accident due to his chronic psychiatric disorders which include intellectual limitations, his limited education, and inability to work prior to the accident. He opines the applicant already had a marked impairment in this sphere prior to the accident and there has not been any significant additional impairments to warrant assigning a higher class of impairment.

138I find Dr. Jwely did not reference the applicant’s chronic pre-accident psychological history when forming his opinion, therefore I find a proper baseline was not founded. This leaves me to give more weight to the opinion and report of Dr. Eisen. I find Dr. Eisen’s opinion consistent with the contents of the applicant’s pre-accident medical records which have been referenced throughout this decision.

139The applicant has not met his onus on a balance of probabilities that he has a class 4 marked impairment in this sphere.

140I conclude on a balance of probabilities, for the reasons set out above, that the applicant is not catastrophically impaired under criterion 8.

The applicant is not entitled to attendant care benefits

141I find that the applicant has not proven on a balance of probabilities that he is entitled to attendant care benefits (“ACBs”) in the amount of $2,532.20 per month from March 6, 2023 to ongoing.

142Section 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”). While s. 42(5) of the Schedule allows an insurer to pay for ACBs without having received a Form-1 from the insured person, that is the insurer’s choice.

143The applicant concedes attendant care costs have not been incurred to date.

144The applicant testified his injuries have affected his ability to manage in his day to day life. Prior to the accident he had good hygiene, he showered regularly, brushed his teeth, washed his face, dressed himself, managed his own meals, and was quite independent with his life management. He was able to assist his wife with taking care of his children, light housekeeping, maintenance around the house and meal prep, now that has all changed. Post accident he has difficulty taking care of himself without his wife’s assistance. She assists him with bathing, reminders to take his medication, meals, and other day to day things. He testified that when left to his own devices, he does not change his pajamas, often does not wash his face or brush his teeth and he would not remember to take his medication.

145Occupational Therapist Cynthia Forster, Registered Nurse, conducted an updated in-home reassessment on October 26, 2022, and an Assessment of Attendant Care Needs (Form 1) was submitted. Ms. Forster recommended assistance with upper, lower extremity, fingernail, toenail care, feeding and assistance with mobility bathroom, bedroom, clothing care, coordination of attendant care, exercise, controlling medication, bathing and drying the applicant, and other therapies.

146Her opinion was based on an interview with the applicant, her physical assessment, a review of the applicant’s medical file and any tests that were conducted. She indicated in her report the applicant was complaint throughout the assessment but was frustrated.

147The applicant reported to Ms. Foster that pre-accident he was fully independent with his daily activities, he was a caregiver to his children and would assist his wife with daily activities. Post accident due to headaches, inability to stand, and injuries to his upper extremities, he is unable to function independently, and he now relies heavily on his wife.

148The respondent takes the position that the applicant was not fully independent and was heavily reliant on his wife for things like reminders to properly take his medication, meals (taking care of the home), appointment management, responding to letters and other activities of daily living as per the medical notes contained in the Mood Disorder’s clinical notes and records dated November 17, 2019.

149The applicant also reported to Dr. Williams during her assessment that he was independent in his self care management, ambulation and transfers and only required his wife’s assistance occasionally.

150The respondent further argues Ms. Forster heavily relied on the applicant’s subjective reporting and the surveillance evidence does not support her findings. Further it relies on the opinion of Occupational Therapist Atul Kaul who submitted an Assessment of Attendant Care Need (Form 1) on February 10, 2023, who opined the applicant does not require attendant care services. It further argues the applicant has not incurred the costs; therefore, he is not entitled.

151Lastly, the respondent testified the surveillance evidence shows the applicant as very active, competent and capable of managing his activities of daily living with out assistance. He was observed bending, lifting, driving, doing home maintenance, picking up food from a local eatery, and he testified that he takes transit, taxi and Ubers when need be. There is no indication in the surveillance material that his injuries inhibit him from the use of upper extremities as indicated when he was working on his vehicle or reaching above his head to install the video camera outside of his house.

152Given the evidence before me I find the applicant has not met his onus, he is not entitled to attendant care benefits.

153I find that Ms. Forster’s opinion is heavily derived from the applicant’s self reporting, which is contradictory to what he said to Dr. Williams.

154The applicant has demonstrated through his activities in the surveillance material and in the occupational therapy assessment session with Ms. Hines that he has a good range of motion in his upper extremity area. I also consider the applicant’s self reporting to Dr. Williams that he in fact can and has been managing most of his personal care activities on his own. My finding is further supported by the fact that the applicant has conceded that to date attendant care services have not been incurred. Therefore, I am not persuaded the applicant meets the test for the attendant care benefits.

155The applicant is not entitled to attendant care benefits.

The applicant is not entitled to physiotherapy services

156I find the applicant has not proven on a balance of probabilities that he is entitled to physiotherapy services.

157The physiotherapy treatment plan in dispute was submitted October 4, 2024, prepared by Mr. Bakri Mohannad, physiotherapist, with Physio Art Rehabilitation. The applicant testified the purpose of the physiotherapy is to treat the applicant’s deterioration in functioning in his lower back, reduce pain, increase strength and range of motion. The provider proposed 36 sessions of 1 hour each for therapy, assessment and documentation, totalling $3,791.00. The OCF-18 indicates progress will be measured by a physical examination, pain assessment and a range of motion test. Previous physiotherapy treatment resulted in improved muscle strength and range in motion in the applicant’s neck and back area.

158To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant must show, 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.

159The applicant testified he would like to continue with physiotherapy, as he finds it reduces his pain and provides relief. The applicant did not provide a medical opinion in support of the proposed OCF-18.

160The respondent argues the applicant has had 2 years of physiotherapy treatment for soft tissue injuries which has reached its maximum potential. The applicant was directed to continue with in home exercise.

161According to Dr. Khan’s testimony, the applicant’s MRI dated Jan 18, 2024, shows he suffers degenerative disc disease of the lumbar spine unrelated to the accident and there are no neurological issues. The MRI is indicative of someone of that age without any unusual abnormalities.

162Further, Dr. Ida Jacqueline Cavaliere, MD, opined in a physiatry assessment dated October 19, 2023, that the applicant sustained lumbar spine strain, sprain with surrounding soft tissue pain. The applicant reported to her that he received 2 years post accident physiotherapy treatments which lacked a sustained benefit. As such, after achieving the maximum therapeutic benefit, he was prescribed a home exercise regime and the OCF-18 is not reasonable and necessary.

163The applicant provided no further submissions about the treatment plans in dispute aside from stating that they are reasonable and necessary and has not provided a counter opinion to that of Dr. Cavaliere and Dr. Khan, therefore I accept the opinions of Dr. Cavaliere and Dr. Khan and find the treatment plans are not reasonable or necessary.

164For the reasons outlined above, I find the applicant has not proven on a balance of probabilities that he is entitled to the proposed physiotherapy services.

Interest

165Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.

ORDER

166I order that:

i. The applicant does not have a catastrophic impairment under criterion 7 or 8;

ii. The applicant is not entitled to attendant care benefits;

iii. The applicant is not entitled to the treatment plan for physiotherapy services; and

iv. Interest is not payable.

Released: January 27, 2026

__________________________

Mary Henein Thorn

Adjudicator