CITATION: Irene Starr v. Intact Insurance Company, 2026 ONSC 302
DIVISIONAL COURT FILE NO.: 269/25
DATE: 20260119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Matheson JJ.
BETWEEN:
IRENE STARR
Applicant
– and –
INTACT INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL
Respondents
Alex Kluchuk, for the Applicant
Shivani Mehta and Sabina Arulampalam, for Intact Insurance Company
Gün Köleoğlu for Licence Appeal Tribunal
HEARD in Toronto: January 12, 2026
Backhouse, J.
[1] The applicant, Irene Starr, was involved in a motor vehicle accident on December 15, 2019, in which she was rear-ended at 100 km/hour. As a result of the accident, she suffered serious injuries and was treated in hospital. The applicant submitted an application for accident benefits to the respondent, Intact Insurance Company. The respondent accepted her application and the applicant received various medical treatments, pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2020 (the “Schedule”).
[2] On December 19, 2022, the applicant submitted an application for a determination that she was catastrophically impaired under Criterion 7 of the Schedule. The respondent denied this application, and the applicant appealed that denial to the Licence Appeal Tribunal (the “LAT”). The LAT dismissed the application and the request for reconsideration. The applicant brought an application for judicial review. For the reasons set out below I would dismiss the application.
Decision released March 11, 2025
[3] The sole issue in LAT’s Decision released March 11, 2025 was whether the applicant sustained a catastrophic impairment as defined by the Schedule. The Tribunal concluded that she was not catastrophically impaired under Criterion 7.
[4] A catastrophic impairment under Criterion 7 results when, as a result of an accident, an insured person sustains a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“AMA Guides”). Where the combined impairment score determined in accordance with the AMA Guides results in a 55% or more whole person impairment (“WPI”), the individual is catastrophically impaired under Criterion 7.
[5] At the hearing which proceeded over five days, the applicant and respondent each relied on their respective catastrophic impairment assessment reports. The applicant’s reports were prepared by Dr. Getahun, and Dr. Basilie. The respondent’s report was prepared by Dr. Sekyi-Otu,. Each report outlined the WPI ratings of the respective assessors and identified the final combined WPI.
[6] Dr. Basile determined the right upper extremity to have a 45% WPI rating. The applicant agreed that it was difficult to understand how Dr. Basile arrived at his final ratings but maintained her position that these ratings can be relied upon. The respondent submitted that Dr. Basile’s rating of these impairments was inconsistent with the instructions in the AMA Guides.
[7] The LAT agreed that the method Dr. Basile used to arrive at his WPI ratings for the right upper extremity cannot be reconciled with the instructions in the AMA Guides, and therefore, should be given little weight. The LAT accepted the methodology and corresponding rating provided by Dr, Sekyi-Otu who rated the applicant as having a 29% WPI for the right upper extremity. However, Dr. Sekyi-Otu made an additional rating of 15% WPI for the applicant’s right hand which he did not include in the final WPI rating for the right upper extremity on the basis that he considered it duplicative. The LAT found that the 15% rating should be added to the 29% WPI rating under 3.1m of the AMA Guides which allowed for range of motion and strength deficits as not being duplicative. The LAT therefore found that a 40% WPI rating for the applicant’s right upper extremity was appropriate.
[8] The LAT found that the pain complaints and range of motion restrictions observed by the applicant’s expert, Dr. Getahun, satisfied the requirement of muscle guarding needed for a DRE-II rating of 5% WPI but rejected the DRE-II ratings of the applicant’s expert, Dr. Basile in his 2024 report for the neck and lower back. The LAT found that he did not observe muscle guarding, nonuniform loss of range of motion, or radicular complaints which are required to make the DRE-II ratings of 5% WPI.
[9] The LAT found that the respondent’s expert report of Dr. Sekyi-Otu prepared in 2023 documented neck pain, but no guarding or radiculopathy was observed. Dr. Sekyi-Otu also observed a fluid range of motion. The applicant’s lower back was observed to have an excellent range of motion with no evidence of radiculopathy. As a result, the LAT concluded that the muscle guarding observed by Dr. Getahun in 2022 was not evident in 2023 and that the more recent medical evidence showed that the applicant’s injuries improved over time which was more consistent with a DRE-I impairment which is rated at a 0% WPI.
Reconsideration Decision July 2, 2025
[10] The applicant applied for reconsideration. On reconsideration, the applicant did not challenge the LAT’s assessment of 0% WPI for the cervical spine.
[11] The applicant submitted that Dr. Sekyi-Otu’s WPI rating for the right wrist was unclear, because in various places in his Executive Summary he provided three different WPI ratings for the right wrist, i.e., 5%, 6%, or 9%. Because of the ambiguity, the applicant argued that she should be given a 9% WPI rating.
[12] In the Reconsideration Decision, the LAT accepted the respondent’s argument that Dr. Sekyi-Otu gave a 5% WPI rating for the right wrist. He accepted that Dr. Sekyi-Otu’s upper extremity impairment (“UEI”) ratings which he completed for the wrist included the following:
(i) 2% UEI rating for extension
(ii) 2% UEI rating for flexion
(iii) 1% UEI rating for radial deviation
(iv) 4% UEI rating for ulnar deviation
(v) 1% UEI rating for right forearm and wrist pronation
These added up to a 10% UEI rating. Dr. Sekyi-Otu subtracted the 1% UEI rating for the right forearm and wrist pronation from the right wrist rating, and then added it as a UEI rating for the forearm. As a result, the right wrist had a 9% UEI rating, and the right forearm had a 1% UEI rating.
[13] On page 13 of his Executive Summary, Dr. Sekyi-Otu stated that the 9% WPI rating for the right wrist was available for discussion. The LAT accepted the respondent’s submission that this was a misstatement and that a careful reading of his report showed that the 9% referred to the UEI rating and not the WPI rating. There are no UEI ratings in the Executive Summary which could be converted to a 9% WPI rating for the right wrist.
[14] On Reconsideration, the LAT accepted the respondent’s submission that in the Merits Decision, he erred by adding UEI values for regional impairments rather than combining them as prescribed on page 24 of the AMA Guides. This correction resulted in a 38% WPI rating for the right upper extremity and a total 49% WPI rating. This included a 1% adjustment for medications which the applicant had argued for on reconsideration. As the total was 49% WPI, this did not meet the 55% WPI rating threshold and the request for reconsideration was dismissed.
Issues
(1) Whether the Tribunal’s finding of DRE-I (WPI of 0%) for the spine was unreasonable?
(2) Whether the Tribunal’s finding of WPI rating for the right upper extremity of 38% was unreasonable?
(3) If the Tribunal’s finding regarding impairment in spine and impairment in the right upper extremity were incorrect, does it change the total WPI rating score to such a degree that the applicant should be found catastrophically impaired under Criterion 7?
Court’s Jurisdiction and Standard of Review
[15] The Divisional Court has jurisdiction to hear the judicial review under ss. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
[16] Pursuant to Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the existence of a right of appeal limited to questions of law does not, in itself, amount to a discretionary bar nor preclude an application for judicial review for questions of fact or mixed fact and law. The Court must determine at a minimum whether judicial review is appropriate, and if it is not, may refuse to hear the application on its merits or to grant a remedy.
[17] The issues raised in this application are questions of fact or mixed fact and law, making judicial review appropriate. The standard of review on the application for judicial review with respect to findings of fact and mixed fact and law, is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
Issues:
Issue 1: Whether the Tribunal’s finding of DRE-1 (WPI of 0%) for the Spine was unreasonable
[18] The applicant submitted that the Tribunal’s finding of a DRE-1 classification (corresponding to a 0% WPI rating for her spine) was unreasonable. The total WPI for the spinal region is made up of two sub-calculations in this case: the lumbosacral spine and the cervicothoracic spine. The lumbosacral spine is the lower back region, whereas the cervicothoracic spine is the area that connects the neck to the spine.
[19] The applicant submitted that it was unreasonable the for the Tribunal to conclude that since the muscle guarding observed by Dr. Getahun in 2022 was not present in 2023, the applicant’s injuries improved over time and are more consistent with DRE-1 impairment which is rated at 0% WPI.
[20] The applicant submitted that the Tribunal erred in stating that a DRE-II rating requires muscle guarding to be observed by a physician.
[21] The AMA Guides for DRE-II state:
“The Clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, nonuniform loss of motion, or nonverifiable radicular complaints.”
[22] The respondent noted that the applicant did not challenge the Tribunal’s finding of DRE-1 for the spine on reconsideration and thus this constituted a new issue raised on judicial review.
[23] The reconsideration process is specifically designed to allow the Tribunal an opportunity to correct errors based on the full evidentiary record as it did on other issues that were raised on reconsideration in this matter. This is precisely the kind of situation the reconsideration process is designed to address and is not a matter suited to first instance review by the court. The applicant’s failure to raise this issue before the Tribunal on reconsideration deprived the Tribunal of the opportunity to address its findings regarding the spine and this court of the benefit of the Tribunal’s analysis on a very technical issue. I would be reluctant to find that the LAT erred where it was not given an opportunity to reconsider this point.
[24] However, having heard the arguments on this issue from both parties on the merits, I do not propose to send it back to the LAT for the following reasons.
[25] First, the Tribunal referenced the relevant tables for the Spine under Chapter 3, Tables 72 and 73 of the AMA Guides. The preamble to the AMA Guides Chapter 3 on the Spine states:
(4) If impairment is resolving, changing, unstable or expected to change significantly within 12 months, it is not a permanent impairment and should not be described as one under the Guides criteria.
[26] Dr. Getahun’s earlier report noted some guarding and limited range of motion. The Tribunal expressly considered the time difference between the two assessments. At paragraphs 19-22 of the Decision, the LAT acknowledged Dr. Getahun’s finding but also noted Dr. Sekyi-Otu’s subsequent normal examination. The Tribunal reasonably concluded that the guarding and limited range of motion observed in 2022 were not present in 2023, indicating improvement over time and supporting a DRE-1 classification. The Tribunal reasonably reconciled the two assessments, concluding that the current stable presentation showed no objective signs of lumbar impairment consistent with a DRE-II and accordingly found a DRE-1 classification appropriate.
[27] The applicant argued that the term “intermittent” guarding can include historical observations, such that Dr. Getahun’s 2022 findings should satisfy the DRE-II criteria, even if absent in 2023. This ignores the preamble to the AMA Guides explaining the requirement of a permanent impairment and effectively asks the court to reweigh the evidence which is not the role of this court on judicial review.
[28] The finding that the applicant fell within DRE-1 is consistent with the Tribunal decisions cited by the respondent that DRE-I corresponds to cases involving only subjective complaints or symptoms, whereas DRE-II requires “clinical signs of neck injury being present” without radiculopathy or loss of motion segment integrity. (Mansour v Belair para 32-35; GT v Guarantee Company of North America, 2020 ONLAT 18-003334, para 38-50; Leslie v Wawanesa Mutual Insurance Company (ON LAT para 91-96).
[29] I find no basis to intervene.
Issue 2: Was the Tribunal’s finding of WPI rating of the Right Upper Extremity of 38% unreasonable?
[30] The applicant submitted that the WPI rating for the right upper extremity was unreasonable in part because of the inconsistent ratings in Dr. Sekyi-Otu’s report. Specifically, the applicant submitted that his report contained several material inconsistencies-- the report provided different WPI ratings for the right wrist in different sections: 5% WPI, 6% WPI and 9% WPI. The different WPI ratings result in divergent outcomes for the applicant.
[31] In the Reconsideration Decision, the Tribunal agreed with the respondent that the 9% WPI rating for the right wrist was a misstatement by Dr. Sekyi-Out. The applicant submitted that it was beyond the scope of the Tribunal to resolve these apparent inconsistencies without a re-hearing, where Dr. Sekyi-Otu could be given the chance to clarify his method, and in which he could be cross examined. The applicant submitted that it was improper for the Tribunal to first reject the other approaches offered by the other doctors, adopt the approach of Dr. Sekyi-Otu, and then proceed to reject Dr. Sekyi-Otu’s approach in the Reconsideration Decision. The applicant stated that it was beyond the Tribunal’s scope to continue with the technical analysis of the impairment in the right upper extremity in those circumstances. The applicant submitted that the Tribunal should have ordered a re-hearing on this issue.
[32] The applicant further submitted that the Tribunal erred in the Reconsideration Decision by recalculating the wrong upper extremity impairment rating for the right hand. Based on Dr. Sekyi-Otu’s report, the correct WPI rating for the right upper extremity would be 37%, for a total WPI rating of 48%. The applicant submitted that the Tribunal improperly calculated that the WPI rating for the right upper extremity was 38%, which results in a total WPI of 49%. The applicant submitted that it was not arguing that the LAT applied the wrong methodology based on the AMA Guides on reconsideration but that it was not within the LAT’s scope or authority to reject all the expert reports by all the professional evaluators and reach its own conclusion on catastrophic impairment.
[33] I disagree that the LAT has rejected all the expert reports. The Tribunal is statutorily bound to follow the methodology set out in the AMA Guides when assessing catastrophic impairment under the Schedule. Section 3.1(1) of the Schedule incorporates the AMA Guides into it by reference. When a non-statutory instrument is incorporated by reference into legislation, it is considered to be part of the regulation, making the Tribunal statutorily bound to follow it: Desbiens v Mordini, para 227-228.
[34] It is within LAT’s scope and authority to interpret expert reports and the AMA Guides in the course of determining catastrophic impairment. In its Reconsideration Decision, the Tribunal acknowledged that it had incorrectly combined the Regional Upper Extremity Impairments in its initial calculation of the WPI, contrary to the method prescribed by the AMA Guides. The Tribunal was legally bound to correct that error and apply the method set out in section 3.1. The applicant had the opportunity to cross-examine Dr. Sekyi-Otu about the correct methodology. The LAT’s correction does not warrant a new hearing, particularly given the applicant’s acknowledgement that the Tribunal on reconsideration applied the correct methodology based on the AMA Guides.
[35] The one percent discrepancy was caused by the LAT inadvertently using 28% as the upper extremity impairment rating for the hand instead of 25% set out by Dr. Sekyi-Out in his report. Had the LAT used the right number, the combined WPI for the upper extremity would have been 37% rather than the 39% noted by the LAT. This would have resulted in a total combined WPI of 48% rather than the 49% concluded in the Reconsideration Decision. This one percent discrepancy is not in the applicant’s favour and in any event is minor and immaterial. It has no bearing on the conclusion that the applicant’s combined WPI does not reach the 55% threshold. An error that would not change the outcome does not warrant judicial intervention.
[36] The applicant has not established any reviewable error that was not subsequently corrected in the Reconsideration Decision.
Conclusion
[37] In the result, I would dismiss the application.
[38] In accordance with the agreement of the partes, the applicant shall pay the respondent costs in the all-inclusive amount of $5,000.
Backhouse J.
I agree _______________________________
Sachs J.
I agree _______________________________
Matheson, J.
Released: January 19, 2026
CITATION: Irene Starr v. Intact Insurance Company, 2026 ONSC 302
DIVISIONAL COURT FILE NO.: 269/25
DATE: 20260119
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Backhouse and Matheson JJ.
BETWEEN:
IRENE STARR
Applicant
– and –
INTACT INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL
Respondents
REASONS FOR JUDGMENT
Backhouse J.
Released: January 19, 2026