This recent decision from the Licence Appeal Tribunal (LAT) offers helpful guidance and encouragement for plaintiffs and counsel pursuing a catastrophic impairment (CAT) designation under Ontario’s statutory accident benefits regime.
Background
The case concerned Mr. Mayers, who was injured in a motor vehicle collision on January 25, 2021. The central issue before the LAT was whether he met the threshold for CAT under Criterion 8, which addresses mental and behavioural disorders.
As a reminder, Criterion 8 is grounded in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed., 1993) requires an applicant to establish, on a balance of probabilities, either:
- Marked impairment in at least three of four functional domains, or
- Extreme impairment in at least one domain
The four domains are:
(1) Activities of daily living;
(2) Social functioning;
(3) Concentration, persistence and pace;
(4) Adaptation.
Competing Expert Evidence
In reaching a decision, the adjudicator was required to assess competing psychiatric expert evidence, particularly where the experts diverged in their assessment of the applicant’s social functioning before and after the collision.
The applicant relied on the opinion of psychiatrist Dr. Emily Gavett-Liu, who concluded that Mr. Mayers had marked impairments in activities of daily living, social functioning and adaptation, along with a moderate impairment in concentration, persistence and pace.
The respondent’s expert, Dr. Kehinde Adekunle Aladetoyinbo, largely agreed with these findings but differed in one critical respect; he assessed the applicant’s social functioning as only moderately impaired. This distinction ultimately became the crux of the decision, with the LAT focusing closely on the nature and extent of Mr. Mayers’ post-collision social functioning.
Assessment of the Key Issue: Social Functioning
A critical factor in the LAT’s analysis was the stark contrast between Mr. Mayers’ pre- and post-accident functioning. Prior to the collision, Mr. Mayers was highly social, regularly spending time with family and friends two to three times per week. He maintained close relationships with his family, friends and coworkers, hosted weekly family dinners and was actively engaged in both his community and work life.
However, following the collision, Mr. Mayers’ social functioning changed dramatically as a consequence of his injuries and resulting impairments. The evidence demonstrated significant social withdrawal driven by chronic pain, depression, anxiety, irritability and panic attacks. There was a notable breakdown in key family relationships, including a marked deterioration in his marriage, which became strained by frequent conflict and emotional disengagement to the point that the couple is now attending counselling in an effort to repair the relationship.
His relationship with his mother also deteriorated significantly. Although she co-owned and had lived in the family home for years, ongoing conflict after the collision led to her moving out for a period of time. She eventually returned but only after extensive renovations were undertaken to create a separate and independent living space within the home, resulting in minimal interaction between them.
Additionally, Mr. Mayers lost contact with siblings, in-laws and friends, individuals with whom he had previously maintained regular weekly interactions with, through social gatherings and shared meals. His impairments also affected his ability to work in a customer-facing role as an assistant manager at a car rental business, where effective interpersonal communication had been a central component of his job.
The adjudicator accepted this stark contrast, relying on the consistent evidence of Mr. Mayers, his wife and his treatment providers, together with the comprehensive assessment of Dr. Gavett-Liu, to conclude that these post-collision changes amounted to a marked impairment in social functioning.
Critique of the Respondent’s Position
The LAT rejected the insurer’s argument that Mr. Mayers’ efforts to improve his relationships—particularly his attendance at counselling—undermined a finding of marked impairment. The respondent suggested that his insight and attempts at repair demonstrated a level of functioning inconsistent with a marked impairment.
The adjudicator disagreed, clarifying that a desire to improve relationships does not equate to a lesser level of impairment. Ongoing psychological barriers may continue to prevent meaningful improvement despite sustained efforts. In other words, motivation to recover is not the same as functional capacity. Although Mr. Mayers was actively trying to address the state of his marriage, those efforts did not guarantee success, particularly in light of the impairments affecting his ability to connect, communicate and maintain an intimate relationship.
The respondent also argued that Mr. Mayers’ ability to maintain positive relationships with his treatment providers indicated preserved social functioning. This argument was rejected. The LAT emphasized that professional relationships with healthcare providers are not equivalent to the types of relationships contemplated under Criterion 8, such as those with family members, friends, coworkers or the general public. Healthcare providers are trained and compensated to work with individuals experiencing psychological impairments and are equipped with strategies to facilitate those interactions. As such, these relationships are not a reliable indicator of real-world social functioning.
The adjudicator also identified several concerns with the psychiatric report of Dr. Aladetoyinbo, including his failure to meaningfully compare pre- and post-collision functioning, conclusions that did not align with the weight of the evidence and internal inconsistencies. For example, acknowledging that Mr. Mayers had not returned to work while simultaneously minimizing the extent of his impairment.
Additionally, the respondent relied on a psychological report prepared in the context of post-104-week income replacement benefits. The LAT gave this report little weight, noting that it did not address a Criterion 8 analysis, that the assessor was not qualified to conduct CAT evaluations and that its conclusions were inconsistent with the broader evidentiary record.
Key Takeaways
Overall, the decision reinforces several important principles for practitioners advancing CAT claims under Criterion 8. First, thorough, criterion-specific psychiatric evidence is essential. Second, corroboration from multiple sources significantly strengthens a claim. Third, efforts at treatment do not negate impairment. Fourth, structured or supported activities must be carefully contextualized. Finally, the ability to maintain professional relationships is not a proxy for real-world social functioning.
