Category: Catastrophic Impairment

Hamad v. Dominion of Canada General Insurance Company (2024 ONSC 3324)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. The Court dismissed the appeal, holding that the claimant did not raise any legal errors on the part of the Tribunal. The Tribunal’s factual findings were supported by the evidence presented by the parties, and the Tribunal was entitled to make assessments of the witnesses credibility. Additionally, the Tribunal’s reliance on medical records by a doctor not present at the hearing was permitted, as hearsay evidence is permissible in hearings before the Tribunal.

Laljee v. Aviva General Insurance Company (2024 ONSC 2577)

The claimant appealed the Tribunal’s dismissal of her claim for a catastrophic impairment designation and various treatment plans. The Court dismissed the appeal, finding that there was no merit to the claimant’s arguments. The claimant had not been denied procedural fairness, and had been provided with all documentation referred to during the hearing. The Tribunal’s findings of fact were based on the ample evidence before it, as was the conclusion that the claimant’s impairments were largely a result of pre-existing conditions.

Shahin v. Intact Insurance Company (2024 ONSC 2059)

The claimant appealed the Tribunal’s conclusion that she did not suffer a catastrophic impairment. She argued that she was denied procedural fairness due to: (i) failure by the Tribunal to make the insurer’s expert re-attend for cross-examination, (ii) by the Tribunal deciding causation when it was not argued by the parties; and (iii) by the Tribunal’s reference to documents that were not discussed by the parties or witnesses. The Court agreed that the Tribunal breached procedural fairness due to each of the three argued reasons. The Court remanded the dispute to the Tribunal for a new hearing.

Kellerman-Bernard v. Unica Insurance Company (2023 ONSC 4423)

The claimant appealed the Tribunal’s decision that she could not receive a catastrophic impairment designation because she was not involved in the subject accident. The claimant’s son was significantly injured in an accident, and the claimant suffered psychological injuries. The Tribunal held that only persons involved in an accident could apply for a catastrophic impairment designation. The Divisional Court reversed the Tribunal’s decision, holding that the adjudicator erred in restricting catastrophic impairment designations to persons involved in an accident. The SABS allows the designation for an “insured person” which includes certain family members of accident victims who were not themselves in the accident.

Abdi v. TD General Insurance Company (2023 ONSC 3536)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment, as he did not meet the Extended Glasgow Outcome Scale (“GOS-E”). In particular, the adjudicator preferred the assessments of the insurer which took place almost 24 months after the accident, rather than the assessments of the claimant which took place around 16 months after the accident. The GOS-E test refers to level of functioning “6 months or more”. However, the adjudicator was not required to accept the assessment that was completed earliest in time. The adjudicator’s decision to prefer the insurer’s assessments was open to her on the evidence, and she explained why she did not accept the claimant’s assessments. The Tribunal therefore made no error with regard to the temporal aspect of the assessments. Second, the adjudicator did not restrict her consideration to impairments exclusively or solely attributable to traumatic brain injury, and she did contemplate that physical and psychological impairments caused by or related to the traumatic brain injury were to be considered in the GOS-E. In applying the test, the adjudicator found that many of the impairments relied upon by the claimant reflected an unwillingness to perform acts, rather than an inability to perform them. Those were properly excluded from consideration. Finding no legal error, the Court dismissed the appeal.

Khan v. Allstate Insurance Company (2023 ONSC 3652)

The claimant appealed the LAT’s decision that he did not suffer a catastrophic impairment. The claimant argued that procedural fairness was denied because he did not know the insurer would argue that an intervening event was the cause of his impairments, and argued that the LAT applied the wrong causation test. The LAT dismissed the appeal. Regarding procedural fairness, the Court held that the claimant’s failure to object to the insurer’s arguments at any point during the original hearing prevented him from advancing this argument on appeal. Failure to object deprived the Court of the evidence necessary to establish how the LAT would have dealt with the concern. Regarding causation, the Court held the LAT applied the proper “but for” test. The material contribution test is only applicable where there are multiple tortfeasors and there is risk of tortfeasors escaping liability by pointing the finger at one another. That was not the case in this dispute where the claimant suffered a medical event weeks after the accident.

Darwich v. The Co-operators (20-015268)

The claimant applied to the LAT for a catastrophic impairment designation and the cost of a private addiction treatment centre. The claimant suffered injuries from an accident that culminated in him being prescribed increasingly higher amounts of morphine to relieve his accident-related back pain. At some point, the claimant’s historic substance abuse issues, which were dormant for many years, had resurfaced and he relapsed. The claimant subsequently turned to illicit drugs to cope with his pain and stress. He was diagnosed with polysubstance abuse disorder, depression and somatic symptom disorder. While the claimant was on a positive trajectory after completing an in-patient drug treatment program, he eventually relapsed while battling cancer and passed away shortly after the LAT hearing . Given that the claimant passed away shortly after the LAT hearing, the question of catastrophic impairment was rendered moot. The sole issue remaining was whether the claimant’s attendance at the private addiction treatment centre was reasonable and necessary. Adjudicator Norris considered whether the accident caused the claimant to experience depression, somatic symptom disorder and to relapse into polysubstance disorder. Adjudicator Norris held that the accident need not be the sole cause of the claimant’s injuries but need only be found to be a factor that materially contributed to the injuries. Adjudicator Norris concluded that the claimant’s polysubstance use disorder was directly caused by the accident, and the in-patient treatment program was an accident-related expense. Even though the addiction treatment received by the claimant could have been covered by OHIP, Adjudicator Norris found that it was reasonable and necessary, as expert evidence revealed that the urgency of the situation required immediate treatment and certain on-site care that an OHIP-funded facility could not provide for.

Achaia-Shiwram v. Intact Insurance Company (20-004699)

The claimant applied to the LAT disputing her entitlement to IRBs and CAT impairment. The respondent raised a preliminary issue that the claimant did not dispute IRB entitlement within 2 years pursuant to s. 56. At the beginning of the in-person hearing, the claimant attempted to summons two witnesses, the claims adjuster and the CAT OT IE assessor. The respondent objected to these witnesses as the claimant had not provided their names on the witness list provided to the respondent and because the claimant had not properly served a summons to witness on either the claims adjuster or the CAT OT IE assessor. Adjudicator Hines agreed with the respondent noting that the potential witnesses were not served with a summons despite the claimant having ample time to do so. Adjudicator Hines also noted that because the claimant did not include them on their witness list, the respondent would be prejudiced by adding them as witnesses on the eve of the hearing, as the respondent would not have had time to prepare for examinations. The claimant also brought a motion to exclude an IE report based on the hourly rate charged by the IE doctor. The IE doctor confirmed her hourly rate was $225 hour and charged $3,375 for the IE assessment. However, the respondent provided an OCF-21 invoice that confirmed it paid the IE assessor $2,000 as per s. 25 of the SABS. Adjudicator Hines allowed the IE report as evidence. As for the substantial issues, Adjudicator Hines preferred the evidence of the IE assessors with respect to CAT and noted that causation was a major factor. With respect to causation, Adjudicator Hines noted that the claimant argued that the accident caused a decline in her employment performance; however, her failure to submit post-accident employment records to this effect weakened her argument. Adjudicator Hines also pointed to an intervening event of a volleyball injury, which caused further deterioration in the claimant’s condition and ability to work. Adjudicator Hines found that the claimant did not meet her onus of proving that but for the accident she would not have sustained the psychological impairment which formed the basis of her CAT application and IRB claim. As Adjudicator Hines concluded that the claimant did not meet the IRBs disability test, she did not rule on the s. 56 limitation period argument.

Kaur v. Northbridge General Insurance Company (21-001035)

The claimant sought a determination that she sustained a catastrophic impairment as a result of the accident. Vice Chair Moore held that the claimant did not suffer a catastrophic impairment under Criterion 7 or Criterion 8. Vice Chair Moore found the insurer’s WPI ratings more persuasive. In particular, the Vice Chair preferred the position of the insurer’s assessors that there needed to be a specific accident-related diagnosis to justify an impairment rating, rather than simply reports of symptoms. Vice Chair Moore was critical of the claimant’s assessors, who appeared to apply WPI ratings in excess of diagnosed accident-related injuries and which were not in accordance with the AMA Guides. Vice Chair Moore found a total of 6 percent WPI for physical impairment, which was too low to combine with psychological impairment to exceed 55 percent WPI. In terms of Criterion 8, Vice Chair Moore found that at least two domains (activities of daily living and concentration, persistence, and pace) did not meet a Class 4 Marked Impairment, and as such, the claimant could not qualify for a catastrophic impairment under Criterion 8. As a procedural preliminary issue, Vice Chair Moore excluded the insurer’s supplementary document brief containing surveillance because it was served on the first day of the hearing. Although the surveillance had been provided during settlement discussions, the Tribunal found that failure to include the surveillance in the original document brief meant that the claimant was not expecting to comment and rebut the findings therein.

Chu v. Unica Insurance Inc. (20-001934)

The claimant applied to the LAT for a catastrophic impairment designation under Criteria 8. She had already exhausted her $65,000 non-CAT policy limit. The claimant bore the onus of proving on a balance of probabilities that she had a “Marked” or Class 4 impairment in at least three of the four domains set out in the AMA Guides. Adjudicator Forbes noted that a “Marked” impairment sufficient for a CAT designation requires the claimant to show that their impairments “significantly impede useful functioning.” In conducting this analysis, Adjudicator Forbes emphasized that it was crucial that the claimant’s pre- and post-accident functions be accounted for based on the available medical and documentary evidence. Adjudicator Forbes found that the medical and documentary evidence showed that the claimant had pre-existing limitations on her daily life before the accident, which were not significantly impeded by the accident, and that the claimant’s post-accident condition showed signs of improvement. Adjudicator Forbes held that the presence of “some” post-accident limitations on a claimant’s useful functioning does not rise to the high bar of significantly impeded useful functioning. As a result, the claimant was not deemed CAT and no further medical/rehabilitation benefits were payable.