Category: Catastrophic Impairment

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The Tribunal found a 51 percent WPI. The claimant argued that the Tribunal’s refusal to rate her sleep impairment was unreasonable. The Court dismissed the appeal, concluding that the Tribunal did not err by not rating the sleep impairment. The Tribunal did not conclude that sleep disorder was not a rateable condition, but that the claimant and her experts did not give persuasive evidence that the claimant herself suffered a sleep impairment that warranted rating under the AMA Guides.

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The Court held that the Tribunal came to an unreasonable conclusion with respect to the WPI ratings for double vision, peripheral neuropathy, and medications. The adjudicator took a rigid view of the AMA Guides and refused to provide any WPI for double vision when there was ample evidence with objective testing to support as much as a 24 percent WPI rating. The adjudicator was also unreasonable in refusing to rate WPI for peripheral neuropathy based on his own error in referencing the wrong tables and pages in the Guides, and then refusing to adjust the error on reconsideration. Similarly, the adjudicator’s refusal to rate WPI for medications was unreasonable when he was directed to an error in his factual findings regarding the medical evidence. The Court dismissed the other grounds of appeal, and remitted the matter to the Tribunal for a new hearing.

The applicant requested reconsideration of the Tribunal’s decision. The hearing adjudicator dismissed the request (2024 CanLII 102098). The adjudicator did not agree that s. 280(1) of the Insurance Act could be interpreted as providing jurisdiction to determine the rate to be paid for attendant care. The adjudicator also did not agree that it was an error of law to require a breakdown of what services were provided and for how long they were performed. Lastly, the adjudicator found that finding that Bulletin A-03/18 limited the Form 1 to calculating the amount of attendant care to be paid was not inconsistent with the principles in Malitskiy v. Unica Insurance, 2021 ONSC 4603 for the purpose of applying the ratio method for paying for attendant care.

The claimant appealed the Tribunal’s decision that she did not sustain a catastrophic impairment. Her primary argument was that the LAT erred in rejecting the evidence of her chiropractor in the ratings for Criterion 6, 7, and 8. The Tribunal rejected the chiropractor’s evidence insofar as the chiropractor gave opinion and diagnosis of psychological injury, and preferred the evidence of the insurer’s experts who were qualified to diagnose psychological conditions. The Court dismissed the appeal, holding that the Tribunal correctly applied the law in restricting the scope of the chiropractor’s admissible evidence. The SABS and AMA Guides permit a chiropractor to give certain opinions on catastrophic impairment when it comes to physical impairment ratings, but does not allow a chiropractor to give evidence outside of their qualified areas of expertise.

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.