Written By: William Harding, Partner, and Emma Funston-Clarke, Student-at-Law
10 Minute Read
Introduction
McLeish Orlando Partner, William Harding. was recently successful in obtaining a catastrophic designation for a client at the License Appeal Tribunal (“the Tribunal”). In MacLeod v. Intact Insurance Company, 2026 ONLAT 25-002123/AABS, the Tribunal addressed the application of the mental and behavioural catastrophic impairment test in a detailed analysis. The decision provides useful guidance on how marked impairments are assessed under the AMA Guides and how functional evidence is weighed. It also offers insight into how competing expert opinions are evaluated in Criterion 8 disputes.
Facts
The Applicant was involved in a serious motor vehicle collision on November 5, 2020. His vehicle was struck on the driver’s side and rolled at least twice before coming to a rest in a ditch. Although initial imaging revealed no fractures or intracranial injury, and his Glasgow Coma Scale score was 15, he began experiencing persistent psychological and cognitive symptoms in the aftermath of the collision.
In the years following the collision, the Applicant developed significant mental and behavioural impairments, including depression, post-traumatic stress symptoms, anxiety, cognitive difficulties, and emotional dysregulation. He exhausted his $65,000 non-catastrophic medical and rehabilitation benefit limit and sought a determination that he met the catastrophic impairment threshold under s. 3.1(1)8 of the SABS, commonly referred to as Criterion 8.
Incredibly, despite an insurer assessor previously finding that Mr. MacLeod was completely unemployable for the purpose of his income replacement benefit, his catastrophic impairment assessor opined that he was only mildly impaired with respect to Adaptation. This opinion was relied upon to deny Mr. MacLeod catastrophic impairment and access to additional medical care. The matter proceeded to a multi-day hearing before the Tribunal.
Issues
The central issue was whether the applicant sustained a catastrophic impairment under Criterion 8 of the SABS.
Under Criterion 8, an applicant must establish either:
- A Class 4 (marked) impairment in three or more of the four functional areas; or
- A Class 5 (extreme) impairment in one area.
The four areas, as set out in Chapter 14 of the AMA Guides (4th ed.), are:
- Activities of Daily Living
- Social Functioning
- Concentration, Persistence and Pace
- Adaptation
The parties agreed there was no extreme impairment. The dispute, therefore, turned on whether the applicant had marked impairments in at least three areas, and whether those impairments arose from an accident-related mental or behavioural disorder.
Analysis
The Legal Framework
The Tribunal confirmed that catastrophic impairment under Criterion 8 is a legal determination informed by medical evidence. The definition of a marked impairment is one that “significantly impedes useful functioning.” Importantly, the Guides do not require institutionalization or total incapacity. The inquiry is functional and contextual, not theoretical.
The Applicant bore the onus of proving, on a balance of probabilities, that, but for the collision, he would not have sustained the impairments forming the basis of the claim.
Activities of Daily Living (Marked)
The Tribunal found that the Applicant sustained a marked impairment in Activities of Daily Living (“ADLs”).
Before the collision, the Applicant functioned independently and maintained an active lifestyle. Post-collision evidence demonstrated a significant reduction in sustainability and in the ability to perform routine tasks. While he remained capable of basic self-care activities in isolation, the evidence showed that he struggled to complete multiple tasks in a day, became overwhelmed by routine errands, and frequently forgot to perform hygiene tasks, take medication, or complete other essential tasks.
Occupational therapy situational testing was particularly persuasive. During structured ADL assessments, the Applicant exhibited physiological signs of stress, including flushing, panting, and visible anxiety, and withdrew prematurely from tasks such as grocery shopping. The Tribunal emphasized that an ADL assessment requires consideration of independence, appropriateness, effectiveness, and sustainability, not simply whether a task can be technically performed.
On the totality of the evidence, the Applicant’s impairments significantly impeded his daily functioning.
Concentration, Persistence, and Pace (Marked)
Occupational therapy assessments strongly supported this area.
Both catastrophic occupational therapists conducted structured tasks involving planning, scheduling, information retention, and multi-step coordination. The Applicant demonstrated difficulty sustaining attention, required repeated instructions, exhibited slow task completion, and experienced cognitive overload.
Psychological testing also supported reduced sustained attention and processing speed. Treating provider records consistently documented problems with planning, memory, and follow-through.
The Respondent argued that the Applicant’s ability to drive undermined the finding of marked impairment. The Tribunal rejected this argument, noting that the Applicant limited his driving to short distances, avoided complex situations, and employed compensatory strategies. He had also sold his motorcycle due to safety concerns. The ability to perform a limited activity with accommodations did not negate significant impairment in sustained concentration and persistence across contexts.
The Tribunal concluded that the Applicant’s impairments significantly impeded useful functioning in this area.
Adaptation (Marked)
The Tribunal also found a marked impairment in Adaptation, which refers to the ability to respond appropriately to stress and environmental demands.
Situational testing revealed that the Applicant struggled to tolerate even minor stressors and frequently abandoned tasks when faced with unexpected challenges. During structured assessments, he demonstrated emotional dysregulation, required breaks, and withdrew from activities prematurely.
The Tribunal relied heavily on occupational therapy evidence in this area, finding that the Applicant’s impairments significantly impeded his ability to function under stress.
The Tribunal’s Conclusion
The Tribunal found that the Applicant sustained marked impairments in Activities of Daily Living, Concentration, Persistence and Pace, and Adaptation, and therefore met the catastrophic impairment definition under Criterion 8.
The decision reinforces that Criterion 8 is fundamentally a functional test. Diagnostic labels and theoretical interpretations of the Guides carry less weight than a detailed, real-world functional assessment. Occupational therapy situational and work-like testing played a decisive role in establishing marked impairments across areas.
Causation
The Respondent argued that physical complaints, such as headaches and tinnitus, contributed to the Applicant’s reduced functioning.
The Tribunal found that physical and psychological impairments were intertwined and that the collision was a necessary cause of the mental and behavioural impairments. Applying the “but for” test, the Tribunal concluded that, absent the collision, the Applicant would not have developed the impairments that formed the basis of the Criterion 8 finding.
Discussion: The Critical Role of Occupational Therapy Evidence
This decision highlights the central importance of occupational therapy evidence in Criterion 8 LAT hearings.
First, the Tribunal placed significant weight on structured situational and work-like testing conducted by the catastrophic occupational therapists. Areas such as Concentration, Persistence and Pace, and Adaptation are inherently functional, and the Tribunal relied heavily on evidence demonstrating how the Applicant actually performed in real-world contexts. The occupational therapy assessments did not merely record subjective complaints; they documented observable breakdown under stress, premature task abandonment, cognitive overload, and reduced sustainability. That type of functional testing directly addressed whether impairment levels “significantly impede useful functioning,” which is the core inquiry under Criterion 8.
Second, the decision illustrates that occupational therapy evidence cannot be treated as secondary to psychological opinion. While the insurer relied primarily on psychological assessment and symptom validity testing to argue for mild impairment, the Tribunal found that those conclusions did not meaningfully engage with the occupational therapists’ detailed situational findings. The Respondent’s expert’s reliance on abstract examples from the AMA guides, without fully reconciling the testing results, diminished the weight of the insurer’s position. In contrast, the occupational therapy evidence provided concrete, contextualized proof of how the Applicant functioned across daily, community, and work-like settings.
Finally, this case demonstrates that failing to grapple directly with occupational therapy evidence can materially weaken a determination of catastrophic impairment. Where structured occupational therapy assessments consistently document impaired stress tolerance, poor task persistence, and reduced adaptive capacity, a mild impairment rating that does not substantively address those findings is unlikely to prevail. Criterion 8 is not determined in theory; it is determined by demonstrated functional capacity. This decision reinforces that comprehensive occupational therapy evidence is often central, not ancillary, to establishing or rebutting catastrophic impairment under the mental and behavioural criterion.
Conclusion
The Tribunal’s decision reinforces that catastrophic impairment under Criterion 8 is ultimately determined through a careful, functional analysis across the four prescribed areas. The reasons make clear that detailed, structured assessment evidence, particularly evidence grounded in real-world performance, carries significant weight when determining whether impairments “significantly impede useful functioning.” The decision also demonstrates that expert opinions will be measured against the extent to which they meaningfully engage with the full evidentiary record, including functional testing. For practitioners, the decision serves as a reminder that successful Criterion 8 litigation turns less on abstract interpretation and more on the quality, consistency, and practical force of the functional evidence presented.
Ultimately, this is a just result for an individual who genuinely needs the care provided by his treatment team following a devastating crash. We are very pleased to have been able to obtain access to this care for the remainder of his life.
If you or someone you know requires assistance with applying for catastrophic impairment designation or if your entitlement to accident benefits has been denied, contact the team at McLeish Orlando for guidance and representation in advancing your claim.
