Martin v. Certas Home and Insurance Co., 2025 ONSC 665
CITATION: Martin v. Certas Home and Insurance Co., 2025 ONSC 665
DIVISIONAL COURT FILE NO.: 246/23
DATE: 20250306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, LeMay and Shore JJ.
BETWEEN:
ROXANNE MARTIN
Applicant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
DEVAN T. SCHAFER, for the Applicant
MICHAEL W. CHADWICK, for the Respondent
LICENCE APPEAL TRIBUNAL
Intervenor
THERESA M. McGEE, for the Intervenor
HEARD: January 29, 2025
LeMay J.
Overview
[1] The Appellant, Roxanne Martin (“the Appellant”) was injured in a motor vehicle accident on September 5th, 2016, when the All-Terrain Vehicle that she was riding on rolled over and pinned her underneath it. She has undergone various medical treatments since that time, some of which were funded through payments made to the Appellant by her insurer pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010, O. Reg. 34/10 (“SABS”) under the Insurance Act, R.S.O, 1990, c. I-8.
[2] On May 17th, 2021, the Appellant submitted an application to the Respondent, Certas Insurance Company, for a determination that she was catastrophically impaired. The Respondent insurer denied that application. The Appellant’s application to resolve the parties’ dispute proceeded to a five-day oral hearing before the Licencing Appeals Tribunal (“LAT”) in May 2023.
[3] On July 21st, 2023, the LAT released a decision (reported at 2023 67911) finding that the Appellant was not catastrophically impaired and that she owed approximately $9,000 in benefits back to her insurer. The Appellant sought reconsideration of this decision, which was denied in a decision dated November 10th, 2023 (reported at 2023 107282). The Appellant now appeals to this Court. The Appellant argues, in essence, that the LAT committed an error of law by limiting the scope of the evidence that one of the Appellant’s experts could provide.
[4] At the conclusion of the Appellant’s argument, the appeal was dismissed with reasons to follow. These are those reasons.
Background
a) The Parties and the Issues
[5] The Appellant was injured in a motor vehicle accident on September 5th, 2016. The ATV that she was riding on rolled over and pinned her under it. Her partner, who was with her at the time, was able to assist her in getting out from under the vehicle and the Appellant walked home. She went to the hospital the next day, complaining of bilateral shoulder pain. She was diagnosed with a broken rib.
[6] Over the next couple of years, the Appellant continued to have problems, particularly with her shoulders. In February 2018, she was diagnosed with a rotator cuff tear in her right shoulder. She underwent surgery in late 2018 and experienced an improvement in her range of motion.
[7] In late 2018, she was diagnosed with a rotator cuff tear in her left shoulder. This was repaired by way of surgery in 2019. Unfortunately, this surgery did not improve the Appellant’s pain. She underwent further surgery in January of 2020. That surgery was not successful.
[8] The Appellant has developed Chronic Pain Disorder (“CPD”).
[9] On May 17th, 2021, the Appellant made an application to the Respondent, who was her insurer, for a determination that she had suffered a catastrophic (“CAT”) impairment as a result of the accident on September 5th, 2016. The application was based on Criteria 6, 7 and 8 under the SABS. The Respondent denied that application, and a proceeding before the LAT was launched.
b) The CAT System
[10] In order to understand the basis for my reasons, it is helpful to briefly set out how impairments that flow from MVA’s are classified as catastrophic, or CAT, impairments under the SABS.
[11] The Insurance Act and the SABS codify the no-fault accident benefits regime in Ontario. Every insurance policy is deemed to provide the benefits set out in the SABS. If a claimant is determined to have a catastrophic impairment, then they are entitled to a much higher level of medical, rehabilitation and attendant care benefits and there is no time limit on the entitlement to those benefits.
[12] Catastrophic impairment is defined in s. 3.1(1) of the SABS. That definition sets out eight different criteria that can be met, each of which would establish catastrophic impairment. The Appellant sought her declaration under Criteria 6, 7 and 8. I will briefly review each one of these criteria.
[13] Under Criterion 6, the Appellant would be catastrophically impaired if she had sustained a physical impairment or combination of physical impairments that resulted in an impairment of the whole person that was 55 percent or more.
[14] Under Criterion 7, the Appellant would be catastrophically impaired if she had sustained a mental or behavioural impairment that resulted in an impairment of the whole person that was 55 percent or more.
[15] Under Criterion 8, the Appellant would be catastrophically impaired if she could demonstrate that she had a marked (class 4) impairment in at least three areas of function or at least one area of function where she had an extreme (class 5) impairment.
[16] All three of these criteria incorporate the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Both the fourth and sixth editions of the AMA Guides are incorporated into the SABS by reference. The AMA Guides provide the framework for assessing impairment and specify who is qualified to provide opinion evidence about permanent impairment. The AMA Guides also set out a process for assigning impairment ratings.
c) The Decision
[17] The LAT hearing was held by videoconference between May 1st and May 5th, 2023. During that hearing, the two LAT members heard evidence from a number of witnesses, including medical professionals, called by both sides.
[18] Each side had the Appellant examined by a series of medical professionals. Those medical professionals provided testimony at the hearing. Given that the issue in this case revolves around how the LAT addressed the evidence of these professionals, it is helpful to briefly set out what each side’s evidence was.
[19] The Appellant relied on a multidisciplinary report prepared by a company called AssessNet. It included the individual reports of Dr. Wismer (an orthopaedic surgeon), Dr. Pallandi (a psychiatrist), Ms. Franc (an Occupational Therapist) and Dr. Tartaglia (a chiropractor). The impairment ratings were provided by Dr. Persi, a chiropractor and the Clinical Director of AssessNet. All of these individuals provided oral testimony to the LAT.
[20] The Respondent relied on a multidisciplinary report from AssessMed. It included individual reports from Dr. Karabatsos (an orthopaedic surgeon), Dr. Sivasubramanian (a psychiatrist) and Ms. Phillips (an Occupational Therapist). All three of these individuals provided oral testimony to the LAT.
[21] On July 21st, 2023, the LAT provided written reasons in which it determined that the Appellant was not catastrophically impaired. It also determined that the Appellant was required to repay the sum of approximately $9000 in benefits that had been overpaid by the Respondent.
[22] The LAT’s decision addressed each of criteria 6, 7 and 8 and determined that, generally, the evidence from the Respondent’s witnesses was to be preferred. In reaching its decision, the LAT determined that the evidence of Dr. Persi was generally unreliable and should be given very little weight. There was also some indication, in respect of criterion 8, that the LAT said it was not giving the evidence of Dr. Persi any weight at all. I will return to that issue in my analysis.
Issues and Positions of the Parties
[23] Originally, the Appellant identified three issues that she was appealing, as follows:
a) The LAT erred in law in its interpretation and application of the AMA Guides, particularly in its interpretation of the phrase “any knowledgeable person” and the process by which impairment ratings are developed using the AMA Guides.
b) The LAT failed to deliver adequate reasons.
c) The LAT violated the Rule in Browne v. Dunn (1893) 1893 65 (FOREP), 6 R. 67 (H.L. (Eng.)) in the manner in which it addressed the decision in Crecoukias v. Toronto Transit Commission, 2022 68324 (ON LAT).
[24] In a supplemental factum uploaded to CaseLines on the Monday before this appeal was argued, the Appellant reduced her position to a single issue. She argues that the LAT committed an extricable error of law by relying on the decision in Crecoukias and, by extension, reasoning that s. 45 of the SABS precluded Dr. Persi from opining on mental and behavioural impairments under criterion 8. Although the LAT had found that the Appellant did not meet the definition of a catastrophic impairment under any of criteria 6, 7 and 8, this appeal is limited to the LAT’s findings on criterion 8.
[25] The Appellant requests that we quash the LAT’s decision and remit the matter back to the LAT for a re-hearing before a different tribunal.
[26] The Respondent disagrees. In its factum, the Respondent acknowledges that the LAT gave “little weight” to the opinion of Dr. Persi. However, the Respondent also argues that the LAT properly weighed and considered the evidence. The Respondent asks that the appeal be dismissed.
Standard of Review
[27] The standard of review is set out in s. 11(6) of the Licence Appeal Tribunal Act 1999, S.O.1999, c. 12, Sched. G (“LATA”). That section states that an appeal from a decision of the LAT under the Insurance Act may be made on a question of law only. The standard of review of questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[28] Questions of fact and questions of mixed fact and law are not reviewable on appeal from the LAT under the Insurance Act, unless there is an extricable error of law: Gore v. Rusk, 2022 ONSC 2893 (Div. Ct.), at para. 39. Questions of fact address what actually took place between the parties, and questions of mixed fact and law are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research) v. Southam Inc. 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[29] In addition, a misapprehension of the evidence is not an error of law unless the misapprehension is based on a wrong legal principle. R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.
[30] With this background in mind, I will now review the issues relating to the LAT’s consideration of Dr. Persi’s evidence.
Did the LAT Commit a Legal Error in its Treatment of Dr. Persi’s Evidence?
[31] The extricable error of law that the Appellant alleges the LAT committed is failing to properly consider the evidence of Dr. Persi. The Appellant is advancing three main arguments in support of this position:
a) The LAT improperly adopted an interpretation of s. 45 of the SABS that gave no meaning to the three-step process in the AMA Guides.
b) The LAT improperly failed to follow the three-step process in the AMA Guidelines in weighing the evidence, and particularly the evidence of Dr. Persi.
c) The LAT improperly relied on Crecoukias to limit the scope of Dr. Persi’s evidence.
[32] All three of these issues are interrelated, so I will address them together.
[33] The starting point is s. 45 of the SABS. That section states in part:
45.(1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
(2) The following rules apply with respect to an application under subsection (1):
An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
Despite paragraph 1, if the impairment is a traumatic brain impairment only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.
If a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits.
[34] This section states that an assessment is to be conducted by a physician or neuropsychologist, as the case may be, but that those individuals may be assisted by other regulated health professionals. In this case, the Appellant argues that this section envisions a regime in which CAT determinations are not just made by physicians because other parties may assist a physician in the assessment process.
[35] The Appellant also observes that the requirements for physician involvement in a CAT assessment are limited to the insured, and that the insurance carrier has more flexibility under s. 44 of the SABS. As a result, counsel argues that the LAT should have adopted a broad and purposive approach to interpreting and applying s. 45 of the SABS. In particular, counsel argues that adopting a more broad and purposive approach would have resulted in the LAT considering more of Dr. Persi’s evidence, particularly in its examination of Criterion 8.
[36] Counsel also points out that the determination as to whether someone meets the definition of a catastrophic impairment also involves the interpretation and application of the AMA Guides. This was common ground between the parties. The three steps set out in the AMA Guides are:
a) Gathering a through and complete history of the medical conditions, carrying out a medical evaluation and comparing the findings with the appropriate portions of the AMA Guides to estimate the individual’s impairment.
b) Determining the nature and extent of the impairment.
c) Comparing the results of the analysis with the criteria specified in the AMA Guides for the particular body part system or function.
[37] The Appellant argues that, when this legislative scheme is considered as a whole, Dr. Persi’s evaluation of the Appellant as being catastrophically impaired pursuant to Category 8 of the SABS should have been admitted and considered by the LAT. The Appellant argues that the LAT improperly rejected Dr. Persi’s evidence.
[38] To understand why the first two arguments cannot succeed, it is useful to consider how the AMA Guides and s. 45 should be read together. In that respect, see Z.J. v. Aviva Insurance Company of Canada, 2020 98733 (ON LAT). In that decision, the LAT was faced with an argument that s. 45 of the SABS precluded a chiropractor from compiling the final executive summary and WPI report. The LAT in Z.J. rejected this argument, and stated,(at para. 20:
[20] Turning to the issue of the chiropractor compiling the final executive summary and WPI rating, the applicant notes in her submissions that this particular chiropractor possesses additional certification (under the AMA Guides to the Evaluation of Permanent Impairment) to collate CAT assessments and provide an executive summary and WPI rating. The respondent submits that the certification the chiropractor claims to have cannot expand her scope of practice beyond what is explicitly stated in the Chiropractic Act, 1991. It is argued that an executive summary and WPI report constitutes an assessment/determination of CAT for the purposes of s. 45 of the SABS, which does not allow a chiropractor to perform such assessments. [Footnote omitted.]
[39] In essence, the argument made before the panel was that the chiropractor could not provide an opinion beyond their scope of practice as set out in the Chiropractic Act, 1991, S.O. 1991, c. 21. The LAT rejected this concern, noting (at paras. 21 and 22):
[21] It is noted that executive summaries and WPI reports compiled by chiropractors are neither a new nor singular occurrence in cases before the Tribunal. Moreover, beyond any additional certification possessed by the chiropractor, in my view, the final report is simply part of the overall CAT assessment and the task of the chiropractor in compiling same is assistive in nature. Section 45 clearly contemplates that other regulated health professionals (such as a chiropractor) may assist the physician(s) in an assessment.
[22] Put another way, I do not view the executive summary and WPI rating as an assessment in and of itself, but is rather, a written summarization of opinions previously provided. The individual who compiles the executive summary and WPI rating does not offer any fresh medical opinion of their own, but simply recaps the medical opinions of various assessing physicians and assigns a numeric WPI rating in accordance with AMA Guidelines.
[40] The reason that the LAT in Z.J. was prepared to let the chiropractor compile the WPI and executive summary is that the chiropractor in Z.J. was engaged in a compilation exercise and not in generating additional opinions that were beyond the scope of their expertise. Put another way, the third step in the AMA Guides process is one of compilation and interpretation of the clinical findings of others. It is not an exercise in generating additional or new medical opinions.
[41] That distinction has long been recognized in the case-law. For example, one of the cases cited by the LAT in addressing the arguments made by the Appellant was Snushall v. Fulsang, 2003 48418 (Ont. S.C.). This was the first case on the issue of catastrophic impairment to be tried in Ontario under the SABS. It was a previous version of the SABS, but even at that time, the SABS incorporated the AMA Guides by reference. In considering how the AMA Guides should be applied, Lax J. set out the three-step process, at para. 39, and then went on to say, at para. 40:
[40] The Guides do not intend the “knowledgeable person” to necessarily be a person with medical knowledge. However, an impairment evaluation is a matter of medical knowledge and not judicial interpretation, as Dr. Becker suggested. It is therefore important that where the Guides provide ranges instead of fixed percentages, the assessing clinician brings his or her clinical judgment to bear on the question and arrives at a precise percentage. It is then the task of the “knowledgeable person” to determine, as the Guides state, “whether or not the impairment estimates reflect [the Guides] criteria” and to determine how the medical information fits with the other evidence.
[42] In other words, Dr. Persi was entitled to engage in the compilation exercise. He was not entitled to engage in the exercise of diagnosing a patient where that diagnosis goes beyond his own expertise. This distinction makes practical sense. The AMA Guides require expertise to understand and apply. However, having expertise in the AMA Guides does not make someone an expert in the underlying conditions.
[43] This brings me to the evidence before the LAT. Dr. Persi is a chiropractor. However, in his report he sought to both supplement the opinion of a psychiatrist and offer his own psychological diagnosis (narcotic abuse). The LAT specifically noted these concerns at paras. 22(i) to (iii) and para. 23. Those paragraphs read:
i. He never met with the applicant in person and did not carry out any part of the physical assessment.
ii. He was inconsistent in the methodology he used in assigning the WPI ratings. For example, the Guides state that in rating the spine the Diagnosis Estimated Model should be used. Instead, Dr. Persi used the Range of Motion (“ROM”) model. In his analysis, Dr. Persi indicated that he used the ROM model for the cervical spine because the applicant had degenerative changes in her cervical spine. We do not find this rationale helpful as the evidence does not support that the accident caused these degenerative changes. For these reasons, we prefer the WPI% ratings assigned by Dr. Karabatsos
iii. He assigned 29% for narcotic abuse under Chapter 4 of the Guides which is not a rating that is supported under this chapter. Further, as a chiropractor it is not within his scope of practice to diagnose this disorder. Further, Dr. Pallandi never diagnosed the applicant with a substance abuse disorder.
[23] Of significance, during cross-examination, Dr. Wismer acknowledged that he had nothing to do with assigning the WPI% ratings under Criterion 6. The doctor also confirmed that he did not diagnose a substance use disorder and agreed that he could not confirm that the impairments to the right wrist and elbow were accident-related. This did not help the applicant’s position or support Dr. Persi’s ratings.
[44] The LAT was rightly concerned with Dr. Persi’s evidence on these points. They did not conflate the various tests or make a legal error. Instead, they confined Dr. Persi’s opinion to the limited scope permitted by the AMA Guides and as set out in Z.J. and were not prepared to consider it beyond that limited scope. In particular, Dr. Persi’s report is based on his diagnosis of a narcotic abuse disorder when the psychiatrist who saw the patient did not make that diagnosis himself. Counsel was pressed in oral argument to identify where Dr. Persi obtained the information to support a diagnosis of narcotic abuse disorder. Counsel was unable to point to another medical report but did observe that Dr. Persi had the evidence about the Appellant’s narcotic consumption in the record.
[45] This brings me to the concerns in respect of Crecoukias. In considering the argument, it must be remembered what the LAT said in this case about Dr. Persi’s evidence in respect of criterion 8:
[29] The respondent relies on the report of Dr. Sivasubramanian who determined that the applicant has a class 2 mild impairment in each sphere. Dr. Sivasubramanian diagnosed the applicant with Somatic Symptom Disorder, with predominant pain, specific phobia (driver and passenger anxiety) and mild Adjustment Disorder with anxious and depressed mood. The respondent argues that the opinion of its assessor should be preferred because Dr. Pallandi did not assign the impairment rating under the Guides. It submits that it is beyond the scope of a chiropractor to opine on psychological impairment ratings. Therefore, the ratings assigned by Dr. Persi should be given little weight. It relies on this Tribunal’s decision in Crecoukias v. Toronto Transit Commission, 2022 68324 (ON LAT) which involved a similar scenario where Dr. Persi assigned the psychological impairment ratings under Criterion 8. In Crecoukias, the adjudicator assigned no weight to the insured’s CAT psychological assessment because she found that it is beyond the scope of a chiropractor to assign impairment ratings from a psychological perspective. We agree with the adjudicator’s rationale in this decision and find that it is beyond the scope of a chiropractor to opine on psychological ratings. For these reasons, we give little weight to Dr. Persi’s opinion.
[46] The LAT’s concerns were focused on whether Dr. Persi had the qualifications to engage in the exercise that he did. As a result, the LAT gave Dr. Persi’s evidence very little weight.
[47] Counsel for the Appellant argues that the LAT actually gave no weight to Dr. Persi’s evidence and did not deal with it in respect of Criterion 8. He argues that this failure to give Dr. Persi’s report any weight at all was the crux of the legal error. I disagree for two reasons. First, in the passage reproduced above, the LAT specifically said “little weight” and not no weight. Second, to the extent that there are any concerns that the LAT gave no weight to Dr. Persi’s report in assessing criterion 8, they are allayed by a full reading of the LAT’s reasons.
[48] After having made the observation at paragraph 29 set out above, the LAT went on to set out various reasons why they rejected the evidence of Dr. Persi in respect of Criterion 8. There are numerous paragraphs that contain the LAT’s reasoning. One example will suffice to illustrate the point. In para. 43, the LAT stated:
[43] Dr. Persi opined that the applicant has a class 4 Marked Impairment. In Dr. Pallandi’s report he concludes that the applicant “describes a pattern of being distracted by pain as well as psychological disturbance. He cites that the applicant has adjustment symptoms, and her psychological symptoms impair her concentration, persistence, and pace.” This is the extent of Dr. Pallandi’s analysis under this sphere which we find vague and lacking in detail and analysis. We give little weight to Dr. Persi’s findings as Dr. Pallandi does not provide any conclusion that that applicant’s impairments are primarily mental and behavioral in nature. Furthermore, Dr. Persi is not qualified to provide this opinion. Finally, the applicant’s performance during Ms. Franic’s assessment was inconsistent. For example, her performance was poor on the Assessment of Motor and Process Skills (“AMPS”) (a tool to measure functional tasks which are primarily physical in nature); however, she was able to complete the problem-solving tasks. On the first problem solving task she was able to complete seven of nine tasks correctly. After doing the AMPS she was able to complete eight of nine tasks. Although she made some errors, she was able to correct them prior to finishing. In our view, the applicant’s performance is not compatible with a marked impairment.
[49] Again, all that the LAT did in this case is confine Dr. Persi to his area of expertise, which was not psychiatry. It would be a strange outcome indeed if a chiropractor or, indeed, someone who is not versed in medicine at all, could provide psychological diagnoses as part of a CAT evaluation merely because they were qualified to apply the AMA Guides. The broad interpretation of the case-law and statutory provisions proposed by the Appellant would lead to precisely that outcome. They must be read more narrowly, in the manner described above.
[50] As a final matter, the Appellant’s counsel argued that the LAT in Crecoukias adopted an overly narrow interpretation of the AMA Guidelines and the role of Dr. Persi and that the LAT in this case adopted the same very narrow interpretation. In Crecoukias, in respect of the AMA Guidelines, the adjudicator specifically stated, at para. 31, that “any testimony [Dr. Persi] gave was duplicative of my function as the trier of fact.” This is not the passage (or the reasoning) that the LAT adopted in this case, as noted at paragraph 45, above. Instead, the LAT confined Dr. Persi’s evidence to step 3 under the AMA Guides and weighed it against the other evidence in the record. There is nothing legally impermissible about the LAT’s approach in this case.
[51] Having found no legal error in the manner in which the LAT dealt with Dr. Persi’s evidence; I would dismiss the appeal.
Conclusion
[52] For the foregoing reasons, the appeal is dismissed.
[53] On agreement of the parties, costs are payable by the Appellant to the Respondent in the sum of $10,000 inclusive of HST and disbursements. Costs are to be paid within 30 days.
“LeMay, J.”
“Lococo, J.”
“Shore J.”
Released: March 6, 2025
CITATION: Martin v. Certas Home Insurance Co., 2025 ONSC 665
DIVISIONAL COURT FILE NO.: 246/23
DATE: 20250306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, LeMay and Shore JJ.
BETWEEN:
ROXANNE MARTIN
Applicant
-and-
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
REASONS FOR JUDGMENT
LeMay J.
Released: March 6, 2025