Wu v. Aviva Insurance Company (20-011618)

The claimant applied to the LAT disputing the insurer’s partial approval of catastrophic assessments. The dispute centered around the proper reading of s. 25(2)(a) of the SABS which provides a $2,000 limit for as assessment. Adjudicator Shapiro concluded that a plain language reading of the section set a clear total limit of $2,000 which would encompass all components of the assessment including file review, preparation an the written report. A total of $5,000 related to four clinic file reviews; $712 related to transportation; and $2,000 related to a neurological assessment. The file review and transportation costs were not payable under section 25. The neurological assessment was not payable because the claimant did not demonstrate any ongoing neurological impairment in earlier assessments.

Z .R. v. Gore Mutual Insurance Company (18-000017)

The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $8,280.86 per month, various medical benefits, and the cost of examinations (including $11,250.00 for CAT assessments). The claimant had been declared catastrophically impaired in a previous LAT decision. As a preliminary issue, the insurer argued that pursuant to s. 56 of the SABS the claimant was barred from proceeding with his application for ACBs for failing to dispute a denial of the benefit within the two-year limitation period. Adjudicator Hines decided that the claimant was not barred from applying for ACBs. While Adjudicator Hines agreed with the insurer that a partial approval of ACBs triggered the limitation clock and the application was made two years after the partial approval, Adjudicator Hines found that the limitation period did not apply based on the guidance outlined in the Ontario Court of Appeal decision in Tomec. With regards to whether the claimed ACBs were reasonable and necessary, Adjudicator Hines held that being catastrophically impaired does not necessarily entitle a claimant to the maximum available under the SABS and found that the claimant did not meet the burden of proving that he required 24/7 supervision. Adjudicator Hines analyzed the various Form 1s and found that the claimant was entitled to reduced amounts for ACBs during two specific time periods. With regards to medical benefits, Adjudicator Hines found that the claimant was entitled to the disputed physiotherapy and psychological treatment as well as a functional abilities assessment. The proposed CAT assessments were partially reasonable and necessary in the amount of $4,200.00. Adjudicator Hines noted that not all the assessments were relied on at the previous hearing, the amount proposed for some assessments was above the $2,000 cap, and the claimant failed to articulate how some of the assessments were reasonable and necessary. The claimant was not entitled to the amount claimed for mileage related to occupational therapy treatment. Adjudicator Hines decided not to address the claimant’s submissions related to housekeeping benefits because entitlement to housekeeping benefits was not listed as an issue in dispute in previous LAT orders scheduling the hearing.

Williams v. Unifund Assurance Company (20-015158)

The claimant applied to the LAT seeking entitlement to various benefits, including payment for catastrophic assessments. The claimant submitted that the proposed CAT assessments met both the reasonableness and guideline requirements for entitlement to funding. Adjudicator Kaur disagreed with the claimant’s position, noting that she had failed to submit appropriate evidence before the Tribunal in support of the disputed treatment plans. The claimant relied heavily on a neuropsychological report which Adjudicator Kaur found to be fraught with inconsistencies. The onus is on a claimant to prove that the treatment plans are reasonable and necessary and the claimant failed to do so in this case. She did not submit any clinical record from her family physician or other treating professions nor she did she submit any cogent evidence to refute the insurers denial.

Smith v. Certas Direct Insurance Company (20-006605)

The claimant was involved in an accident in 2017. He applied to the LAT seeking CAT determination under Criteria 2,6, 7, and 8, as well as entitlement to NEBs, ACBs, and medical benefits. Causation was a key issue at the hearing. Adjudicator Hines held that the “but for” test was the appropriate test to determine causation. The crux of the dispute was whether the accident led to the progression of pre-existing peripheral arterial disease resulting in the above-knee amputation of the claimant’s right leg in September 2020. Adjudicator Hines found that the claimant was catastrophically impaired under Criteria 2 because the accident was a “but for” cause of the amputation, and entitled to NEBs, ACBs, chiropractic treatment, and the cost of CAT assessments. He was not entitled to the cost of a home exercise program. Adjudicator Hines allowed the insurer to rely on late-served CAT reports as they were responding to a new OCF-19 submitted by the claimant. Adjudicator Hines excluded an insurer addendum report as it was served two-days before the hearing and there was no reason why the causation issue addressed in the addendum report could not have been addressed in the initial report.

Al-Mosawi v TD Insurance Meloche Monnex (20-004916)

The claimant applied to the LAT seeking entitlement to various benefits after being involved in a motor vehicle accident, including catastrophic determination assessments. Vice-Chair Ciriello concluded that none of the disputed treatment plans or assessments were payable due to a lack of supporting evidence, articulating that treatment plans alone do not prove that the proposed treated is reasonable and necessary. There must be corroborating contemporaneous and objective medical evidence put before the tribunal to substantiate the necessity and reasonableness of any proposed treatment.

G.P. v. Wawanesa Mutual Insurance Company (18-010583)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, the cost of CAT assessments, and various medical benefits. Vice Chair Lester found that the claimant suffered a catastrophic impairment due to Class 4 Marked Impairments in both adaptation, and concentration, persistence, and pace. The claimant suffered from chronic pain as a result of a minor accident, which deteriorated into somatic symptom disorder with predominant pain and major depressive disorder. The claimant suffered from panic attacks once to twice per week. She was unable to deal with stressful circumstances, had not returned to work as a PSW, and became emotional and overwhelmed by minor things. The claimant was also found to meet the post-104 week IRB test. The only jobs the claimant was suited for were PSW work and an office manager role. The insurer did not have any IEs addressing post-104 week IRBs because it had terminated IRBs within the first 104 weeks. Notably, the insurer’s CAT assessments noted Class 3 Moderate Impairments in social functioning, which was relevant for the claimant’s ability to communicate effectively and ability to get along with others, and found a Class 3 Moderate Impairment in concentration, persistence, and pace, which was relevant to the claimant’s ability to sustain focused attention in a work setting. All of these conclusions supported the determination that the claimant suffered a complete inability to engage in work for which she was suited. The $26,971.50 for CAT assessments, $13,566.81 for a chronic pain program, $2,200 for a chronic pain assessment, and $1,808 for an FAE were awarded due to the insurer’s failure to comply with section 38(8). The denials did not provide adequate medical reasons for the denial, and referred the claimant to read other documents. Vice Chair Lester was critical of the insurer’s reason that something was “excessive” without providing any detail. Finally, Vice Chair Lester granted a special award of 30 percent on the awarded IRBs and treatment plans based on the insurer’s decision to “blindly follow” the IE assessor opinions without considering other evidence. The claimant suffered financial hardships as a result of the denials, including the need to apply for OW, borrow money from her family, and cut back on her diet.

Islam v. Toronto Transit Commission Insurance Company (20-014052)

The claimant applied to the LAT for a catastrophic impairment designation. Vice Chair Flude concluded that the claimant did not meet the definition, as she did not have a combined physical and mental impairment exceeding 55 percent WPI , and did not suffer at least one Class 4 Marked Impairment. The claimant’s assessor wrote that the claimant had Class 4 Marked Impairments in all four spheres of function and had a combined 53 percent WPI. Vice Chair Flude found that the claimant’s recovery did not support those conclusions. The claimant was able to return to her studies at Humber and graduate three years after the accident with a B average; she had returned to working out at a modified level; she tolerated a long commute from home to school; she started at Ryerson in 2020 just as COVID-19 hit; she worked two summer jobs while in school – one at Tim Horton’s and one as a camp counsellor; and she continued to socialize when her studies allowed it. The claimant’s psychological assessor ignored most of this objective evidence. Vice Chair Flude preferred the IE assessor’s opinion that the claimant suffered (at most) Class 2 Mild Impairments in each of the four spheres of function, which was equivalent to a 10 percent WPI. Regarding physical impairments, Vice Chair Flude did not accept that the claimant suffered neurological impairments, as the immediate post-accident records did not suggest any loss of consciousness, dizziness, blurring, amnesia, or other concussion-type symptoms. The 15 percent WPI assigned by the claimant’s assessor was rejected. The overall WPI accepted by Vice Chair Flude was 10 percent for emotional and behavioural, and 16 percent WPI for physical impairment, which did not combine to 55 percent WPI. The cost of CAT assessments totaling $2,400 was awarded, as it was reasonable for the claimant to investigate whether she suffered a catastrophic impairment. Vice Chair Flude also noted that the denial did not include proper medical reasons, contrary to section 38(8).

Tanner v. Certas Direct (21-000564)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, and payment of various medical benefits including partially approved CAT assessments. Adjudicator Reilly denied all claims and dismissed the application. With respect to the catastrophic impairment, Adjudicator Reilly found a maximum combined WPI of 32 percent. She found the claimant’s assessors attributed excessive impairment percentages. She found no evidence of right shoulder impairment and found lumbar spine impairment rated too high. She found the claimant’s left wrist and shoulder impairments ought to have been combined before arriving at the total WPI, rather than rating each separately. She found the rating of 18 percent WPI for grip strength to be questionable as OT and FAE assessments found normal grip strength. In terms of neurological ratings, Adjudicator Reilly found no evidence to support a rating for sexual dysfunction or hearing, and the rating for disturbances of consciousness and awareness ought to have been deferred to a psychiatrist. She found a total of 32 percent WPI for orthopaedic and neurological impairment, which did not meet Criterion 6. In terms of mental or behavioural impairment, Adjudicator Reilly did not accept the claimant’s expert’s rating of 20 percent WPI, as the facts described by the assessor were not supported by the evidence (i.e. ability to travel, ability to drive, ability to work part-time). Adjudicator Reilly preferred a maximum WPI of 10 percent for mental and behavioural impairment based on the IE assessor’s opinion. The combined physical and mental impairment did not exceed 55 percent, and the catastrophic impairment designation was dismissed. Adjudicator Reilly concluded that the claimant did not meet the post-104 week IRB test. The claimant had returned to work in a part-time fashion on multiple occasions after the accident. Surveillance showed him with greater physical abilities than reported to his assessors. The claimant’s job was terminated in 2021 because he did not want to return to the office full-time, and the management dismissed him. The claim for further CAT assessments was dismissed, as the claimant did not advance evidence to indicate why the denied amounts were reasonable and necessary. The claim for assistive devices was dismissed because they were not submitted on OCF-18s, and the claimant had exhausted his medical benefits limits.

Wang v. Co-Operators General Insurance Company (20-009692)

The claimant applied to the LAT seeking entitlement to benefits, including a CAT assessment, after being involved in a motor vehicle accident. Vice-Chair Shapiro found that the claimant failed to establish on the evidence that a CAT assessment would be both reasonable and necessary in the circumstances, highlighting that the threshold requires the claimant to demonstrate that her impairments warrant investigation that she possibility has a CAT impairment. Specifically, as the claimant was alleging mental and behaviour impairments, she would need to a show Class 4 marked impairments. The claimant relied largely on her own self-reports which the Tribunal found to be contradictory and inconsistent, including in relation to her injuries, her medical functionality, her symptoms, and her work history. Two further treatment plans for an attendant care assessment and chiropractic services were also dismissed as not reasonable and necessary.

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.