An Ontario auto insurer's good-faith benefit payments undercut its bid to deny catastrophic impairment - though it defeated a claim for a special award.
The Licence Appeal Tribunal, in a decision released July 3, 2026, found that a claimant injured in an October 30, 2016 automobile accident was catastrophically impaired, ordering The Personal Insurance Company to fund attendant care and physiotherapy while dismissing three occupational therapy claims and a bid for a special award.
The dispute turned on Criterion 8 of the Statutory Accident Benefits Schedule, which treats an impairment as catastrophic where a mental or behavioural disorder produces a marked impairment in at least three of four functional domains, or an extreme impairment in any one. The claimant's assessors rated her marked in three domains; the insurer's assessors found no impairment in three and only mild impairment in the fourth.
Vice-Chair Neil Levine sided with the claimant, finding marked impairment in social functioning; concentration, persistence and pace; and adaptation. He placed the highest weight on an occupational therapist who conducted community-based functional testing, including a grocery-store assessment, over the insurer's therapist, who observed the claimant only briefly outdoors and reported findings the Tribunal found at odds with other evidence.
A central problem for the insurer was its own conduct. Levine noted the respondent had, in good faith, paid medical and rehabilitation benefits under a non-MIG, non-CAT designation - implicitly accepting the accident caused the claimant's injuries. He found it inconsistent for the insurer to then argue that pre-existing conditions, including a history of anxiety, PTSD and depression, precluded a catastrophic finding.
Causation followed the "but for" test. Even with a reduced pre-accident baseline, Levine held, pre-existing issues do not necessarily negate an insurer's liability, provided the accident is a necessary cause.
The hearing also exposed a production issue. The insurer had been told there were no clinical notes for its section 44 psychiatric assessor's examination; at the hearing, the assessor confirmed the notes existed. The Tribunal recessed for an hour so the claimant could review them, and found no prejudice.
On benefits, the claimant was awarded attendant care of $2,912.09 per month from May 25, 2023, payable if and when incurred, plus $3,830.65 for physiotherapy. Levine denied three occupational therapy amounts - $798.03 and two of $598.53 - finding the claimant had not shown the added charges were reasonable and necessary.
The insurer's clearest win came on the special award. Under section 10 of Regulation 664, the Tribunal may order up to 50 per cent of benefits payable where an insurer unreasonably withholds or delays payment. Levine found the claimant led no evidence to meet the standard of conduct that is "excessive, imprudent, stubborn, inflexible, unyielding or immoderate." He found the insurer had adjusted the file on a reasonably timely basis, relied on duly made assessments, and denied benefits based on medical opinion.
Interest was ordered on any overdue benefits.
