Aviva defeated a catastrophic impairment claim at Ontario's Licence Appeal Tribunal after the applicant's neuropsychiatric report failed to apply AMA Guides methodology.
In a decision released May 11, 2026, Vice-Chair Robert Maich ruled that Anna Harrington had not proven catastrophic impairment after a July 20, 2019 accident in which she was a passenger in a vehicle that struck a moose at highway speed. Harrington briefly lost consciousness and the next day attended the Whitby Urgent Care Clinic reporting a stiff neck and pain radiating into her right arm.
Harrington pursued catastrophic status under Criterion 8 of the Statutory Accident Benefits Schedule, which requires a class 4 marked impairment in three of four mental and behavioural domains, or a class 5 extreme impairment in one domain. Both parties agreed she had not sustained a class 4 or higher impairment in activities of daily living, leaving social functioning, concentration, and adaptation in play.
The applicant relied on neuropsychiatrist Dr. Feinstein, whose April 11, 2023 report diagnosed somatic symptom disorder and adjustment disorder. A July 18, 2023 addendum rated her at marked class 4 in the three remaining domains. Occupational therapist Ms. Lisowska's January 23, 2025 report supported similar findings.
Aviva countered with documented pre-accident impairment. Three days before the accident, treating psychiatrist Dr. Ledger had diagnosed Harrington with "severe, bordering on extreme" symptoms of major depression and ongoing prominent PTSD. She had been approved for the Ontario Disability Support Program based on four pre-accident impairments: impaired sleep and attention, impaired emotional regulation, flashbacks and nightmares, and avoidance of some stimuli or individuals. Aviva's section 44 assessor, psychiatrist Dr. Wiesenthal, found the accident had only a mild impact on her pre-accident presentation.
Maich focused his analysis on social functioning. He found Dr. Feinstein's two-page addendum devoted roughly one paragraph per domain and never referenced the AMA Guides. The Vice-Chair said it was unknown whether Dr. Feinstein had applied the criteria prescribed in the Guides or simply written his opinion using their structure. The addendum was given little weight. With social functioning falling short, the applicant could not reach the three marked impairments required, and the catastrophic claim ended there.
Despite the CAT denial, Harrington secured partial wins. She was awarded attendant care benefits of $2,031.36 monthly, well below the $3,163.26 her treating occupational therapist Ms. Campbell had recommended in a December 17, 2023 assessment. Maich rejected the Level 1 personal care component because Harrington had told multiple physicians she was independent in personal care tasks. Level 2 and Level 3 needs were supported by other medical evidence, including the Lisowska report.
On the ACB side, benefits terminated at 260 weeks post-accident - July 13, 2024 - under section 20(1) of the Schedule, which applies to non-catastrophic claimants.
The Tribunal also approved $2,874.75 for physiotherapy proposed in a treatment plan dated June 28, 2022. Aviva maintained its denial based on Dr. Tu's September 22, 2022 opinion that 38 months of ongoing treatment with only 20-40 percent improvement made further care unreasonable. Maich ruled pain relief alone is a legitimate treatment goal supporting the plan. Interest on overdue benefits was awarded under section 51 of the Schedule.
