Category: Catastrophic Impairment

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.

Shalto v. Intact Insurance Company (19-014473)

The claimant was involved in a motor vehicle accident in May 2016. She applied to the LAT seeking CAT determination under Criteria 8 and entitlement to NEBs, ACBs, and numerous medical benefits. Adjudicator Grant applied the “but for” test to the issue of causation and found that although the evidence supported some level of psychological impairment as a direct result of the accident, the accident was not a necessary cause of the claimant’s current psychological impairments. In addition, Adjudicator Grant found that the claimant was not catastrophically impaired as her impairments did not meet the requirement of being “marked” within any of the four domains. Adjudicator Grant found that physical pain complaints had more of an impact on the claimant’s engagement in activities than her psychological impairments. As the claimant had reached the limit of her non-CAT benefits and was not catastrophically impaired, she was not entitled to NEBs, ACBs, or any of the medical benefits in dispute.

Majerczyk v. Economical Mutual Insurance Company (20-004327)

The claimant applied to the LAT seeking CAT determination under criteria 7 and 8 and entitlement to post-104 IRBs, ACBs, and various medical benefits. Vice-Chair Johal found that the claimant was not catastrophically impaired and was not entitled to ACBs, assistive devices, the in-dispute psychology treatment, or occupational therapy treatment. The claimant was entitled to IRBs, medical marijuana, lidocaine injections, physiotherapy, and a psychology assessment. With regards to CAT determination, Adjudicator Johal stated that while it was clear the claimant suffered impairments as a result of the accident and had limitations and restrictions to her daily life, simply showing that she was restricted and limited is not sufficient to meet the CAT test under the SABS.

Franche v. Wawanesa Mutual Insurance Company (21-000723)

The claimant was involved in a motor vehicle accident in 2017. She applied to the LAT seeking catastrophic impairment determination under Criteria 8 and entitlement to numerous medical benefits. Adjudicator Shapiro excluded the report and testimony of a s. 44 assessor for failure to comply with an order to produce raw testing data. Rather than excluding testimony of assessors who did not provide expert duty forms, Adjudicator Shapiro considered the lack of expert duty form when weighing their testimony. The “but for” test was determined to be the appropriate test for determining causation. Adjudicator Shapiro found that the claimant did not have Class 4 impairments in three or more spheres of function and therefore did not meet the CAT definition under Criteria 8. The analysis focused on function in the sphere of Activities of Daily Living. Adjudicator Shapiro found that the claimant did not have a Class 4 impairment in this sphere, noting the claimant was independent in self-care, there was a gap between her perception and actual performance, and there were discrepancies in her testimony that resulted in less weight being given to her testimony and self-reporting (as well as to the expert opinion which was heavily influenced by her self-reporting). As the claimant had exhausted her non-CAT limits for medical benefits, she was not entitled to any of the medical benefits in dispute.

Khan v. Allstate Insurance Company of Canada (20-000806)

The claimant sought catastrophic impairment designation, arguing that the subject accident exacerbated his extensive pre-accident medical conditions (including chronic pain and diabetic neuropathy). The insurer argued that the claimant’s present health problems were not caused by the accident, but by his other health conditions. Notably, the claimant suffered a fall and seizure shortly after the subject accident, which resulted in a traumatic brain injury and admission to hospital for 20 days. The claimant attributed the fall to left leg numbness developed post-accident, and argued that his subsequent deterioration since the fall was therefore due to his accident-related injuries. Adjudicator Neilson did not accept this argument, and found that it was more likely than not that his diabetic neuropathy (which caused him to have blackouts and vertigo pre-accident) caused his fall. Given the claimant’s failure to prove that his present impairments were caused by the accident, Adjudicator Neilson found that he was not catastrophically impaired as a result of his accident-related injuries. As his policy limits were exhausted, he was not entitled to the medical and attendant care benefits claimed.

Handy v. Aviva Insurance Company of Canada (20-006124)

The claimant sought catastrophic impairment designation under Criterion 7, arguing that he developed chronic pain from the soft tissue injuries sustained in the accident along with exacerbation of pre-existing asymptomatic degenerative disc disease and knee osteoarthritis. The insurer submitted that the claimant’s present health condition was caused by an unrelated subsequent fall. The claimant’s assessors found a total WPI of 44 to 55%, while the insurer’s assessors found a total WPI of 9%. The WPI percentages most disputed by the parties were for the claimant’s gait derangement (20% from the claimant; 0% from the insurer), mental status impairment (1-14% from the claimant; 1% from the insurer), and spine (10% from the claimant; 0% from the insurer). With respect to gait derangement, Adjudicator Neilson agreed that but for the accident, the claimant would not have suffered knee issues and attributed a 15% WPI, which was appropriate for a patient who required part-time use of a cane for distance walking, but not at home. With respect to mental status impairment, Adjudicator Neilson accepted the insurer’s 1% WPI rating as its assessor provided a rationale for his rating, while the claimant’s assessor gave no reasonable explanation for choosing the top of the range. In doing so, she noted that providing a range of WPI percentages did not assist her in determining whether the claimant has a catastrophic impairment, and ignores the instructions provided in the AMA Guides. With respect to the spine, Adjudicator Neilson accepted the claimant’s WPI of 10%, because EMG studies pointed to radiculopathy. In total, Adjudicator Neilson found that the claimant did not sustain a catastrophic impairment. As his policy limits were exhausted, the remainder of his claim for benefits was dismissed.

Day v. BelairDirect Insurance Company (20-005603)

The claimant sought catastrophic impairment designation under Criterion 8 as a result of her involvement in an April 2016 accident. Both parties agreed that the claimant had a class 4 marked impairment due to a mental or behavioural disorder, but the insurer denied that her mental or behavioural disorder was caused by the accident and submitted that the accident did not cause any change to her pre-accident psychological impairments. Adjudicator Neilson found that the claimant’s psychological condition was worse than it was prior to the accident, and that the accident had exacerbated her condition. The pre-accident medical records from the claimant’s treating psychiatrist indicated that her major depressive disorder was in remission as of January 2016. She was getting out the house, walking, going to mall, or going for drives as of March 2016. Evidence from the claimant and family members confirmed that prior to the accident, she was functioning adequately (aside from work), but that she was no longer functioning adequately and drank alcohol excessively every day. As such, Adjudicator Neilson found that the claimant was catastrophically impaired as a result of the accident. Adjudicator Neilson also found that the claimant was entitled to attendant care benefits in the amount of $931.57 per month (as recommended by the claimant’s OT, with exception of 16 hours per day of supervision). As the claimant admitted that she had not incurred any attendant care expenses, no attendant care was payable up to the date of the hearing. Adjudicator Neilson further found that psychological counseling, chiropractic treatment, and yoga instruction, as well as the cost of an attendant care assessment were reasonable and necessary as a result of the accident, and therefore payable.

Ferlisi v. Allstate Insurance Company of Canada (21-000013)

The claimant sought catastrophic impairment under Criterion 7. The claimant sustained soft tissue injuries to her left side and developed chronic regional pain syndrome (CRPS) in her left foot as a result of the accident. She had a spinal cord stimulator (SCS) surgically inserted into her spine to address the pain she experienced from the CRPS. The parties disagree on the WPI percentage to be applied in addressing the CRPS and whether she should be assessed with the SCS turned on or off, specifically with respect to gait derangement. The claimant’s assessor attributed 40% WPI for gait (examining her with the SCS off), while the insurer’s assessor attributed 20% (examining her with the SCS on). The AMA Guides state that if an individual’s prosthesis or assistive device can be removed or its use eliminated relatively easily, the organ system should be tested and evaluated without the device. Adjudicator Neilson found that the claimant should be assessed with the SCS off, as its use can be easily eliminated. The SCS can be turned on or off with a remote control. Further, it can be turned off without the claimant’s knowledge by other electronic devices or when the battery runs out. Adjudicator Neilson therefore accepted the claimant’s 40% WPI for gait derangement. She then calculated a total WPI of 56%, and found that the claimant was catastrophically impaired as a result of the accident.