Category: CAT Assessments

M.I.A. v. Aviva General Insurance (19-000993)

The claimant disputed entitlement to eleven different treatment plans for various therapies, assessments and CAT assessments, interest and a special award. The claimant had a notable history of chronic pain in the lower back, a failed back surgery, migraines, and used a cane. The claimant argued that the treatments and assessments were reasonable and necessary as a result of the accident. The insurer argued that the claimant had failed to comply with a LAT Order to provide evidence that the disputed treatments were required as a result of the accident as opposed to his pre-existing conditions. Adjudicator Grant noted that a review of the evidence showed a long history of the claimant reporting pain to his practitioners, however, there was no mention of the subject accident and the claimant’s complaints appeared to be a continuation of his pre-accident chronic pain condition. Furthermore, Dr. Wilderman, the claimant’s chronic pain medicolegal expert, did not review pre-accident medical documentation detailing the claimant’s long history of chronic pain and a failed back surgery, but based his conclusions on the claimant’s self-reporting. Adjudicator Grant gave Dr. Wilderman’s report little weight compared to the IE assessors’ reports, who reviewed both pre-accident and post-accident records. Adjudicator Grant concluded that there was no evidence provided that would show any of the disputed benefits were reasonable and necessary as a result of the accident. The claimant’s dispute was dismissed in its entirety.

Y.D. v. Certas Home and Auto Insurance Company (18-003066)

The claimant requested reconsideration of a previous Tribunal decision denying the cost of CAT assessments in the amount of $24,400. The claimant argued that the Tribunal violated the rules of procedural fairness by failing to properly address the initial submissions and failed to assess crucial evidence. The claimant was represented by two lawyers who both worked from the same law office. The claimant noted that the Tribunal only named the main counsel on file and not the second lawyer who filed the original pleadings with the Tribunal, and thus did not consider those submissions. Vice Chair McQuaid dismissed the argument, noting that a minor error such as the one pointed out by the claimant was “a minor or inconsequential mistake.” She further noted that the previous decision denying the benefits quoted the initial submissions, and thus they were in fact taken into consideration; furthermore the claimant’s reconsideration pleadings noted evidence regarding causation, a fact that had already been considered by the Tribunal in the initial decision. Vice Chair McQuaid concluded that the Tribunal had weighed the evidence properly in the previous decision and that the claimant was attempting to re-argue her case. The request for reconsideration was denied.

Y.D. v. Certas Home and Auto Insurance Company (18-003066)

The claimant requested reconsideration of a previous Tribunal decision denying the cost of CAT assessments in the amount of $24,400. The claimant argued that the Tribunal violated the rules of procedural fairness by failing to properly address the initial submissions and failed to assess crucial evidence. The claimant was represented by two lawyers who both worked from the same law office. The claimant noted that the Tribunal only named the main counsel on file and not the second lawyer who filed the original pleadings with the Tribunal, and thus did not consider those submissions. Vice Chair McQuaid dismissed the argument, noting that a minor error such as the one pointed out by the claimant was “a minor or inconsequential mistake.” She further noted that the previous decision denying the benefits quoted the initial submissions, and thus they were in fact taken into consideration; furthermore the claimant’s reconsideration pleadings noted evidence regarding causation, a fact that had already been considered by the Tribunal in the initial decision. Vice Chair McQuaid concluded that the Tribunal had weighed the evidence properly in the previous decision and that the claimant was attempting to re-argue her case. The request for reconsideration was denied.

S.K. v. Aviva Insurance Canada (19-001127)

The claimant sought entitlement to ACBs, the balance of a partially approved social work assessment (seeking a higher hourly rate), and the cost of catastrophic impairment assessments. The insurer had denied ACBs on the basis that the claimant had not received the claims services and that insufficient information was provided regarding the services allegedly provided. The insurer denied the catastrophic impairment assessments because the claimant proposed them only one year after the accident. Adjudicator Grieves concluded that the claimant was entitled to ACBs of $3,000 per month, subject to the claimant proving that the services had been incurred. She accepted that the claimant required personal care services due to post-accident ankle surgery and knee surgery. She rejected the insurer’s position that surveillance suggested that the claimant was not receiving the services claimed, as the claimant and her family members were able to explain why the claimant and personal care workers were not seen at her house on certain days. Adjudicator Grieves also rejected the insurer’s argument that the payable ACB was calculated based on the specific service provided multiplied by the hourly rate for that service set out in the Professional Services Guideline. She held that the purpose of the hourly rates was to calculate the maximum ACB payable, and that the amount payable by the insurer was based on the rate charged by the service provider (provided that it was reasonable and not excessive) for whichever services were provided, subject to the statutory maximum and/or the Form 1 total. The denied portion of the social work assessment was also awarded. Adjudicator Grieves held that $135 per hour was a reasonable rate for a social worker, rather than the $100 approved by the insurer. Finally, the catastrophic impairment assessments were denied as being not reasonable. Although the claimant was approaching her combined medical and ACBs limit, she could not apply for a catastrophic impairment until the two year mark unless her condition was unlikely to improve. The medical evidence suggested that the claimant continued to show medical improvement. Additionally, the assessors proposing the catastrophic assessments did not explain why each of the proposed assessments was reasonable or necessary.

O.A. v. TD Insurance Meloche-Monnex

The claimant disputed entitlement to additional funding for catastrophic impairment assessments. The insurer had approved $12,000 for an executive summary, psychological assessment, neurocognitive assessment, orthopaedic assessment, and occupational therapy assessments. The claimant sought a further $11,533.24. Adjudicator Boyce concluded that the denied assessments were not reasonable and necessary. The denied items were psychometric testing, scoring, and interpretation; neurocognitive testing, scoring and interpretation; a musculoskeletal examination; an occupational therapy situational evaluation; an occupational therapy collateral interview; and a WHODAS 2.0 assessment. Adjudicator Boyce found that the claimant’s proposed assessments were needless bifurcations or duplications of assessments, which was done to garner additional funding. He noted that the insurer was able to complete its catastrophic impairment assessments with funding of $12,000 and the claimant failed to prove why his assessors could not also do so. The claimant’s arguments that he suffered unique complex injuries warranting additional funding was rejected. The claimant’s argument that his assessors required twice as long because of his poor English skills was also rejected. Adjudicator Boyce did award a total of $400, being the cost of completing the OCF-18 and the OCF-19.

E.C. v. Northbridge Commercial Insurance Company (18-006384)

The claimant sought reconsideration of the Tribunal’s rejection of catastrophic impairment costs. Adjudicator Grant rejected the reconsideration request. He acknowledged two typos / misnomers, but neither affected the Tribunal’s decision. He maintained that the Tribunal applied the correct legal test, which required the claimant to prove that the disputed assessments were reasonable and necessary. The Tribunal considered the claimant’s physical and psychological conditions and determined that the claimant did not meet his onus. Adjudicator Grant rejected the argument that the Tribunal could not rely upon the content of medical records as it was hearsay. The Tribunal was permitted to accept hearsay and assess its weight. Second, the medical records were to be accepted as accurate unless the claimant called evidence to contradict the content. If the claimant wished to dispute the accuracy, he needed to summons the creator of the record to examine them at the hearing. Finally, Adjudicator Grant rejected the argument that he could not hear the reconsideration because he was the adjudicator hearing the original application. Jurisprudence was clear that a reconsideration is not a statutory right and that administrative tribunals are permitted to provide rules governing reconsideration the process, including who will hear the reconsideration.

D.L. v. Aviva Insurance Canada (19-001860)

The claimant sought entitlement to CAT assessments totalling more than $26,000, as well as four treatment plans for passive physical therapy, and a psychological assessment. Vice Chair Farlam rejected the claims. While accepting that assessments are speculative in nature, the claimant failed to prove that there was any reasonable basis to investigate whether the he was catastrophically impaired. There was insufficient objective evidence to suggest a WPI of 55 percent or a marked impairment in three or more areas of function. Vice Chair Farlam noted that by the time the claimant had proposed the CAT assessments he was working, doing child care, exercising at the gym, doing home renovations, and was not using prescription medications. For similar reasons, the claimed physical therapy and psychological assessment were denied.

A.S. v. Certas Home and Auto Insurance Company (19-004994)

The claimant was involved in a 2009 accident. She sought entitlement to three assessments and a series of CAT assessments. An initial issue was raised as to whether section 25 of the post-2010 SABS applied, or if section 24 of the earlier SABS applied. The adjudicator held that section 25 of the 2010 SABS applied, as the transitional rules did not keep section 24 in force. On the claimed benefits, Adjudicator Farlam concluded that none of the assessments were payable. the claimant failed to provide evidence that the subject accident caused ongoing impairment, particularly in light of a subsequent accident she was involved in. Regarding the claimed CAT assessments, the adjudicator held that there was no reasonable basis to investigate whether the claimant was catastrophically impaired, and no evidence led that the claimant might have a 55 percent WPI. It was again noted that the claimant’s complaints arose primarily after her second accident.

E.C. v. Northbridge Commercial Insurance Corporation (18-006384)

The claimant was involved in an accident on February 9, 2006 and disputed entitlement to a treatment plan for $25,659.25 proposing catastrophic assessments. The insurer argued that the claimant had sustained only minor, soft tissue injuries as a result of the subject accident and had not established that catastrophic assessments were either reasonable or necessary due to lack of objective medical evidence. Adjudicator Grant noted that, by their nature, assessments are speculative and are conducted to determine if a specific condition exists or threshold has been met, but accepted the insurer’s position that there must be “some” suggestion that a specific condition exists in order to conclude that further investigation is reasonable or necessary. An IE paper review acknowledged that the claimant sustained injuries from the initial accident and that the current complaints were the same as before the accident, but also considered that there was no medical evidence to support that the claimant’s current pain complaints were related to the accident. The IE assessor noted a six-year gap in medical records, along with no supporting medical records to substantiate the claimant’s subjective complaints. The claimant did not provide any records to contradict those findings. Adjudicator Grant dismissed the claimant’s application in its entirety.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant disputed entitlement to the cost of CAT assessments in the amount of $22,400. The claimant argued that the proposed assessments were reasonable and necessary to determine whether or not she sustained a catastrophic impairment because “it is possible [she] may be catastrophically impaired, either under s. 3.1 of the Schedule, criteria 7 (whole person impairment) or criteria 8 (marked impairment in there or more areas of function).” The claimant further pleaded that she did not have the means to fund the assessments herself, nor was she personally required to fund the assessments under section 25 (1) 5. In Response, the insurer pleaded that first, the each assessment must be reasonable and necessary, and second, that the fees charged for each assessment must themselves be reasonable. The insurer further noted that the claimant had the burden to show that each constituent element that makes up the CAT assessment is itself reasonable and necessary on a balance of probabilities. Adjudicator Farlam agreed that the onus of proof was on the claimant, and that the associated fees must also be proven to be reasonable and necessary. Adjudicator Farlam dismissed the claimant’s case, noting a lack of medical evidence in the records reviewed, including a lack of explanation by the claimant’s treating practitioners as to how the specific conditions alleged by the claimant were related to the subject accident. Adjudicator Farlam was extremely critical of the claimant’s CAT assessors, in particular, Dr. Igor Wilderman, a general practitioner with a focus on chronic pain. Dr. Wilderman diagnosed the claimant with PTSD, despite seemingly not having a licence to practice psychology or psychiatry; his failure to note in his report that he reviewed key evidence, including psychiatric reports on record, or explain in sufficient detail how any of the 14 diagnoses he made were actually caused by the subject accident. Of note, Dr. Wilderman listed “female sex” as one of the claimant’s barriers to recovery. Adjudicator Farlam gave this report little weight.