Aviva wins as expert report skips claimant exam
Aviva has defeated a catastrophic impairment claim after Ontario’s Licence Appeal Tribunal rejected an expert report that never actually examined the applicant.
The decision, released July 7, 2026, ends a statutory accident benefits dispute and offers claims teams a case study in how assessment methodology and missing records can decide a catastrophic file.
The driver was in his vehicle when it was struck from behind while stopped at a traffic light on September 27, 2016. He did not seek medical attention at the scene.
He later reported pain in his right shoulder, right arm and low back, along with headaches and tinnitus, and said his injuries evolved into chronic and disabling conditions. The claimant also alleged the crash had caused serious and enduring psychological impairments that had become catastrophic.
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How the claim was built — and where it fell apart
Aviva denied the catastrophic designation, and the person applied to the tribunal. To succeed under the relevant criterion, he had to show a class 4, or marked, impairment in three of four areas of mental and behavioural function under the American Medical Association’s Guides. A moderate rating in any of the three disputed spheres would sink the claim.
The applicant leaned on a family physician’s report that adopted an occupational therapist’s ratings of marked impairment in social functioning; concentration, persistence and pace; and adaptation to work or work-like situations.
The problem, the adjudicator found, was the methodology. The physician had not personally assessed the driver and relied on ratings from an occupational therapist and a social worker who were not under his supervision. Under the Schedule, only a physician may conduct a catastrophic impairment assessment. An occupational therapist, the panel noted, is “not qualified to provide diagnoses or opine on causation.”
The reports also failed to establish a pre-accident baseline. The physician’s file listed only two pre-accident records, a sleep study and an emergency room consultation for hypertension, which the Vice-Chair called inadequate. Without a picture of the applicant’s prior state, there was no way to measure what the incident actually caused.
For people litigating catastrophic impairment claims, this case illustrates a practical reality: the quality of the expert’s process often matters as much as the severity of the symptoms. A report that skips direct examination and relies on third-party ratings may look thorough on paper but carries serious risk if challenged before a tribunal.
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What the other side did differently
Aviva’s psychiatric assessor, by contrast, personally examined the driver, reviewed his pre-accident records and assigned his own ratings, finding moderate impairments in all four domains. The Vice-Chair preferred that document, noting the claimant had told the assessor that several impairments, including a longstanding temper, pre-dated the crash.
The absence of contemporaneous evidence proved decisive.
The applicant produced no clinical notes from his family physician, no counselling or psychiatric records, and no prescription summary. He had also stopped taking prescribed psychotropic medication and did not appear to have engaged in recommended counselling. That gap, the tribunal member found, made it virtually impossible to gauge the level of impairment or corroborate his self-reports.
The panel found a moderate impairment in social functioning and, with a moderate rating already in place for activities of daily living, concluded the driver fell short of three marked impairments. The application was dismissed.
