Ryan v. Belair Insurance Company Inc., 2025 ONLAT 24-014395/AABS

In Ryan v. Belair Insurance Company Inc., 2025 ONLAT 24-014395/AABS, the Licence Appeals Tribunal found that the applicant was catastrophically impaired under 3.1(1)4 of the Statutory Accident Benefits Schedule (“Criterion 4”), and entitled to ongoing income replacement benefits beyond the two-year anniversary of the accident.

The decision is particularly significant because it confirms that occupational therapists can administer the Extended Glasgow Outcome Scale (“GOS-E”) in support of an application for catastrophic impairment under Criterion 4, provided that a physician or neuropsychologist familiar with the applicant’s impairments endorses the occupational therapist’s findings based on their own assessment.

The applicant was injured when he fell from a moving truck and struck his head.  He suffered multiple skull fractures, multicompartmental hemorrhaging, multiple intraparenchymal contusions within the frontal and temporal lobes.  He was required to undergo an urgent occipital decompressive craniectomy, and subsequent cranioplasty, as a result of his injuries.

There was no dispute that the applicant’s CT imaging had identified severe intracranial pathology, and therefore satisfied the first prong of the test under Criterion 4.  However, the insurer denied that the applicant had suffered a catastrophic impairment under the second prong of the test, arguing that he only had an “Upper Moderate Disability” by a year after the accident when assessed using the GOS-E.  Meanwhile, a “Lower Moderate Disability” rating is required to meet the eligibility criteria for a determination of catastrophic impairment under Criterion 4.

The applicant relied on a section 25 occupational therapy assessment, wherein the occupational therapist administered the GOS-E, and assigned a rating of Lower Moderate Disability.  The treating neurologist subsequently completed the application for catastrophic impairment.  The treating neurologist did not repeat the GOS-E, nor did she issue a report pursuant to section 25 of the SABS, but she did conduct a neurological assessment of the applicant at a clinical appointment, and endorsed the occupational therapist’s GOS-E rating.

Relying on the Tribunal’s decisions in Abdi v. TD General Insurance Co., Anwar v. Travelers Insurance and Adams v. Federated Insurance Company of Canada, the insurer argued that the applicant’s GOS-E assessment was not compliant with the SABS, because the applicant’s GOS-E assessment had not been administered by a physician or neuropsychologist.

Finding in favour of the applicant, the Tribunal concluded that having an OT administer GOS-E, to later be interpreted and adopted by a physician by their own assessment, is compliant with the SABS.

The Tribunal noted that GOS-E Guidelines referenced in the SABS specifically contemplate the that the test may be administered by non-physicians.  It also relied on the testimony of the applicant’s treating neurologist that, in clinical practice, the GOS-E is routinely conducted by occupational therapists, to later be interpreted by physicians or neuropsychologists.

Furthermore, the Tribunal noted that the SABS does not require the GOS-E to be administered by a physician or neuropsychologist.  Rather, the SABS requires that a physician or neuropsychologist make the determination of catastrophic impairment, and authorizes assistance by other health professionals as reasonably required.  The Tribunal pointed out that the assistance need not be secondary, and that limiting assistance to a secondary role places restrictions on physicians which may impact their ability to assess individuals.  The Tribunal pointed out that such a restriction and does not align with the consumer protection nature of the SABS.

The Tribunal went on that the applicant’s treating neurologist had adequately assessed the applicant in compliance with the SABS, insofar as she met with him in person to assess his impairments and determine whether he met the criteria for CAT under Criterion 4, and that her observations were consistent with the occupational therapist’s observations recorded on the GOS-E.

At the time of the appeal, the applicant had exhausted the $65,000.00 non-catastrophic monetary limit for medical and rehabilitation and attendant care benefits.  As a result of the Licence Appeals Tribunals finding, he will be entitled to enhanced accident benefits resulting in an increase in the policy limit to $1,000,000.00.

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