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’s appeal was essentially a re-argument of the evidence. The Tribunal was entitled to weigh the evidence as it saw fit, and the adjudicator provided full and cogent reasons for the decision. There was no error of law or denial of procedural fairness to the claimant.
The claimant appealed and sought judicial review of the Tribunal’s decision that she did not sustain a catastrophic impairment and that she was not entitled to a special award. At the Tribunal hearing, the insurer’s psychiatric assessor refused to attend to give evidence despite a summons, but the adjudicator still allowed the IE report to be considered. Also during the hearing, the insurer conceded the claimant’s entitlement to IRBs, removal from the MIG, and entitlement to medical benefits, and paid amounts owing plus interest. However, the adjudicator concluded that she did not have jurisdiction to grant a special award once the benefits were approved. The Court granted the appeal, holding that the Tribunal erred when it failed to consider whether to make a special award on IRBs and the approved medical benefits, and in breaching procedural fairness when it admitted the psychiatry IE despite the refusal of the assessor to attend the hearing. The Court wrote that the Tribunal should have excluded the IE report once it was clear the assessor would not attend the hearing. The Court remitted the matter to the Tribunal for a new hearing.
The claimant appealed and sought judicial review of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of a 2002 accident. The Tribunal concluded that the claimant’s impairments did not meet the necessary psychological injuries, and that a subsequent 2006 accident was a primary factor for the reported impairments. The Court dismissed the appeal and the judicial review, holding that there were no legal errors made by the Tribunal. The adjudicator applied the correct tests, and did not improperly weigh any evidence or improperly admit hearsay evidence.
The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. She argued that the Tribunal erred in applying the “but for” causation test, and failing to properly weigh other issues that led to psychological impairment. The Court dismissed the appeal, holding that there was no basis to reversed the Tribunal. The adjudicator carefully considered the evidence relating to psychological impairment and concluded that the claimant failed to prove that she had sufficiently reduced impairment in three spheres of function. Further, the adjudicator’s conclusion that the accident was not a necessary cause of the claimant’s condition was fact driven, and was based on the evidence before the Tribunal.
The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment and that she was not entitled to IRBs. She argued that the Tribunal erred in its causation analysis, in considering pre-existing conditions, and in attributing impairments to a subsequent event. The Court dismissed the appeal. The Court held that the Tribunal did not make any legal errors in its decision. The Tribunal correctly used the “but for” test in determining causation of the psychological injuries, and was correct in considering the claimant’s pre-accident and post-accident functioning in order to determine the cause of the psychological injuries. Finally, the Court held that the Tribunal’s consideration of a subsequent injury as an intervening event was not an error of law.
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.
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.
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.
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.
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.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP