Lockyear v. Wawanesa Mutual Insurance Company (2022 ONSC 94)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment due to a GCS score less than 9. The primary grounds for appeal were the Tribunal’s refusal to admit video evidence of the accident and treatment by EMS, and the Tribunal’s decision to allow an IE expert to comment on matters outside of the written report. The Court held that the Tribunal breached the claimant’s right to procedural fairness on both grounds. First, the Tribunal ought to have allowed the video evidence to be submitted as it was relevant and could be probative of the claimant’s GCS score immediately after the accident. Second, the Tribunal ought to have allowed the claimant relief after the IE expert gave opinion evidence not contained in his written report. The Tribunal could have adjourned for a short period to allow counsel to prepare for cross-examination. The Tribunal also could have allowed the claimant to recall his own expert to give reply evidence. The Tribunal’s refusal to allow either was procedurally unfair to the claimant because it denied him an equal opportunity to address the new evidence. The matter was returned to the Tribunal for a new hearing before a new adjudicator.

Patchett v. Optimum Insurance Company (2021 ONSC 8466)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment under the Spinal Cord Independence Measure III (“SCIM”), also known as Criteria 2(iii). The Court upheld the Tribunal’s decision, concluding that Adjudicator Boyce was correct in law to dismiss the catastrophic impairment application because the claimant did not suffer a permanent alteration of function in her leg. The Court agreed that a temporary alteration in leg function did not satisfy the section 2(iii) catastrophic impairment definition. The Court also noted that the Tribunal’s decision was based on an agreed statement of fact that the claimant’s SCIM score had improved above 5, which necessarily implied that the claimant’s leg impairment (measured 10 months earlier as a 4 under the SCIM) was not permanent.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment and that he was not entitled to IRBs. With regard to the catastrophic impairment, he argued that the Tribunal erred in not counting 3 percent WPI for medication and 18 percent WPI for a potential future operation. Adjudicator Flude rejected both grounds of reconsideration. As to the medications, the Tribunal reiterated that not all medications used by the claimant were related to the accident, and that the addition of 3 percent WPI was not for the possible future impact of extended drug use – it was for the manner in which the drugs may mask the person’s true impairment at the time of the assessment. As to the 18 percent for future surgery, the Adjudicator Flude found that the SABS and the AMA Guides did not allow for the counting of a potential future procedure. The person must be assessed at the time he or she is before the Tribunal. Finally, regarding the denial of IRBs, Adjudicator Flude found no error in the conclusion that the claimant failed to prove that he was self-employed at the time of the accident.

Z.R. v. Certas Direct Insurance Company (18-001468)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under section 3.1(1)(5)(i), which requires positive findings of a traumatic brain injury on a CAT scan, MRI, or other medically recognized brain diagnostic technology. Adjudicator Gosio rejected the reconsideration. The claimant did not make any arguments regarding the French version of the SABS at the original hearing, and was therefore barred from advancing such argument on reconsideration. Adjudicator Gosio also rejected the argument that updated records should be obtained on behalf of the claimant, and that a new hearing should be held regarding the dispute. Adjudicator Gosio agreed with the Tribunal’s decision that the use of the word “with” in section 3.1(1)(5)(i) denotes a temporal association between a person’s hospital admission and a positive finding on medical imaging.

J.T. v. Primmum Insurance Company (18-009043)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment, and that his injuries fell within the Minor Injury Guideline. He argued that the Tribunal acted outside of its jurisdiction or violated rules of procedural fairness. Vice Chair Maedel found no error on the part of the Tribunal. The adjudicator considered all the evidence before the Tribunal. There were no expert reports in support of the claimant’s position that he sustained a 55 percent Whole Person Impairment. The Tribunal was entitled to accept the position of the insurer’s assessors that the claimant did not suffer a catastrophic impairment, and that the claimant did not suffer from a pre-existing condition that would prevent maximal recovery under the MIG.

G.T. v. The Guarantee Company of North America (18-003334)

The insurer sought reconsideration of a decision in which the Tribunal found that the claimant had sustained a catastrophic impairment based on Criteria 7. The Tribunal concluded that the claimant had sustained 54% WPI. After rounding up, as permitted by the Guides, the claimant met the threshold of 55%. The insurer submitted that the Tribunal made errors of law and/or fact in assigning three of the WPI ratings (5% for the left leg disfigurement, 9% for the sleep disorder, and 3% for a discretionary increase). Adjudicator Grieves dismissed the insurer’s request for reconsideration, as the Tribunal carefully reviewed each sphere of possible impairment and provided sufficient explanations for accepting or rejecting evidence. She went on to note that while the insurer may disagree with the Tribunal’s assessment of the evidence, there was no basis to interfere with the decision.

Patchett v. Optimum Insurance Company (19-008902)

The claimant sought reconsideration of a LAT decision denying that she met the catastrophic impairment definition because her accident-related impairment did not result in a permanent mobility score on the Spinal Cord Independence Measure III (“SCIM”). Adjudicator Boyce dismissed the claimant’s request for reconsideration. The issue in this case was whether the claimant’s mobility impairment was temporary. Adjudicator Boyce held that the claimant’s mobility improved from requiring two crutches to a single leg crutch, and then progressed to using a cane. He held that the claimant did not meet the SCIM mobility score as her disability was not permanent, and that the legislative intent of SABS criteria 2 was to cover permanent injuries. Adjudicator Boyce noted that had the Legislature intended for the impairment to be measured by a specific moment in time and not permanent, it would have done so.

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

The insurer sought reconsideration of the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. Adjudicator Hines dismissed the reconsideration. She accepted that the Tribunal ought not to have counted 3 percent WPI for medication use because the medication did not have the effect of cancelling out the claimant’s sleep issues, depression or chronic pain. The AMA Guides requires that medication mask an impairment that could not otherwise be rated in order to count 3 percent WPI for medication. Adjudicator Hines rejected the insurer’s arguments regarding 2 percent WPI for sleep disorder, 10 percent WPI for occipital neuralgia, and 29 percent WPI for mental and behavioural disorder. Adjudicator Hines also rejected the insurer’s arguments regarding NEBs, holding that the Tribunal applied the correct test and that the Tribunal provided sufficient reasons to allow the parties to understand why it arrived at its result.

H.V. v. Certas Direct Insurance Company (18-008349)

The claimant sought a catastrophic impairment based on a Class 4 Marked Impairment in adaptation. Vice Chair Marzinotto rejected the claimant’s position, and concluded that he did not suffer a catastrophic impairment. She began by noting that a comparison of the claimant pre-accident and post-accident over a long period should be considered, rather than the “”snap shot”” of the claimant’s functioning at the time of the OCF-19. At the time of the claimant’s catastrophic impairment assessments, he had been employed at a coffee shop for approximately six weeks. The occupational therapist completing the report in support of the OCF-19 required the claimant to perform an assessment that was confusing and not based in reality. The occupational therapist also did not use an interpreter when performing the simulated exercise. Vice Chair Marzinotto was critical of the lack of standard comparison between the simulation and the real work-life scenario. There was also no validity testing. The OT’s opinion regarding the claimant’s abilities was rejected. Vice Chair Marzinotto found it unrealistic that the claimant would have remained employed for 1.5 years at the coffee shop if his functioning was as poor as alleged. It was also noted that the claimant’s employer had no knowledge of the alleged impairments and the claimant was not being given modified tasks. No evidence was called from the employer or any co-workers about the claimant’s work performance. From the time of the accident to the date of the LAT hearing, the claimant’s employment followed an upward trajectory. Vice Chair Marzinotto accepted the opinion of the insurer’s psychologist that the claimant’s impairment was at most a Class 3 Moderate Impairment (and likely on the low end of that range). Aside from the claimant’s work status, he was independent with self-care, shared responsibility with his partner for groceries, shared laundry duties, performed housekeeping, and maintained a regular sleep schedule.

H.O. v. Aviva General Insurance (19-002362)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. In particular, he challenged the Tribunal’s conclusion regarding a 40 percent WPI for cauda equina-like syndrome, and argued that it should have applied. He argued that the Tribunal did not allow procedural fairness when it limited his expert’s answers on re-examination, and that the Tribunal erred in law regarding its conclusions. Vice Chair Flude rejected the reconsideration. In terms of the re-examination, he held that the claimant was improperly attempting to split its case by asking questions about matters that were not covered in direct examination. The claimant was obligated to adduce all evidence he intended to rely upon in the examination in chief. Additionally, the claimant’s expert was not entitled to expound upon answers in cross-examination where such answers were not responsive to the cross-examination. Regarding the alleged legal error, Vice Chair Flude concluded that his findings of fact and resulting legal conclusions were sound and based on the medical evidence before the Tribunal. He noted that neither the claimant’s expert nor the insurer’s expert found significant loss of bilateral function in the lower extremities. The request for reconsideration was dismissed.