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.

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.

Boni v CAA Insurance Company (20-007645)

The claimant applied for CAT designation for injuries arising from a 2017 accident. The insurer acknowledged that the claimant was catastrophically impaired, but argued that he had already been impaired before the accident occurred. The insurer argued that the claimant had been taking prescription medications for depression and sleep difficulties before the accident. The claimant had also been seeing a physiatrist regularly and had discussed going on long-term disability in the year leading up to the accident due to physical impairments. At the hearing, the claimant’s friends and family testified that the claimant had been a very socially active, funny, and well-liked person, and that he had changed significantly in his social activities and temperament following the accident. The claimant’s family doctor also testified that despite his physical and psychological impairments, the claimant would have been functionally capable of continuing in his pre-accident employment had the accident not occurred. Adjudicator Tyler Moore accepted the evidence of the claimant’s witnesses and held that he had suffered a catastrophic impairment as a result of the accident.

Khalaf v The Dominion of Canada General Insurance Company (20-000264)

The claimant was involved in an accident on October 19, 2016, and applied for accident benefits. The dispute involved the insurer denying catastrophic impairment under criterion 8, based on the s. 44 psychiatry IE of Dr. Sivasubramanian, and involved a 7-day videoconference hearing. Initially, Dr. Sivasubramanian had opined that the claimant suffered 2 Class 4 Marked Impairments; however, after viewing surveillance evidence, Dr. Sivasubramanian changed his opinion, and opined that the claimant suffered, at most, a Class 1 Mild Impairment in all domains. The matter was complicated by the fact that the claimant already had severe pre-existing psychological issues prior to the MVA, was assaulted immediately after the MVA, and was involved in a second MVA in 2021. After the second accident, the claimant reported he was “fully functioning and in good health” prior to this event. The claimant argued that the subject accident caused all of his impairments, worsened all of his psychological issues, and rendered him unable to function. In order to determine if the claimant’s issues were as a result of the subject accident, Adjudicator Hines reviewed the evidence and applied the “but for” test. Adjudicator Hines noted that the claimant’s pre-accident records were quite clear that he had numerous severe issues prior the subject accident, including trauma over being kidnapped and tortured in Iraq, and he appeared to have limited functionality. The claimant was also accepted for ODSP just two months prior to the index accident and had at least moderate restrictions to all of spheres of function. Furthermore, Adjudicator Hines did not find the claimant to be a credible witness. When examined, the claimant would often claim he “did not know” or “could not remember” key evidence. He denied that the person on surveillance was him and claimed it was his brother; however, Adjudicator Hines noted that all three of the claimant’s brothers were deceased and had all passed away prior to the surveillance being taken. Furthermore, the claimant’s assessors were not in receipt of the ODSP file showing severe impairments pre-accident, which rendered their CAT opinions unreliable. Based on the above, Adjudicator Hines accepted Dr. Sivasubramanian’s opinion that the claimant had, at most, mild impairments to his functioning as a result of the subject accident and did not satisfy the criteria for catastrophic impairment. The claim was dismissed

Shahin v. Intact Insurance Company (21-002418)

The claimant applied to the LAT for a determination that she was catastrophically impaired under Criterion 8. The claimant struggled with anxiety due to pre-existing health issues, for which she received treatment prior to the accident. It was thus incumbent upon the claimant to demonstrate on a balance of probabilities that, but for the accident, she would not have been psychologically impaired. Adjudicators Grant and Fogarty specified that in situations like this, the accident need not be sufficient per se to have caused the impairments in question but need only have been a “necessary cause”, leading to an exacerbation of the claimant’s pre-existing condition. The claimant argued that, prior to the accident she had been in remission from her pre-existing mental health issues and that she was not receiving any treatment for them. The insurer contended that the sole cause of the claimant’s psychological issues were her past health issues. Adjudicators Grant and Fogarty held that the claimant was struggling with and being treated for her long-standing mental health issues immediately prior to the accident. But for the accident, the claimant would have still been receiving treatment for her mental health issues. Furthermore, there was evidence that the claimant had reduced the dosage of her anti-anxiety medication and that her prognosis and ability to cope with her prognosis had improved since the accident. This led the Adjudicators to conclude that her condition was not exacerbated by the accident and that the claimant’s condition did not rise to the level of a Class 4 impairment under the SABS.

C.S. v Travelers Insurance (20-014495)

The claimant was injured in an accident in 2014. She applied to the LAT seeking a catastrophic impairment determination under Criteria 8. Adjudicator Lake found that a failure to return to one’s pre-accident employment is not on its own evidence of a Class 4 “marked” impairment in the domain of Adaptation and determined that the claimant failed to prove that she sustained a CAT impairment. Adjudicator Lake placed limited weight on the opinions of the claimant’s OT and psychiatry assessors because (a) the claimant failed to report her actual level of function to the CAT assessors and (b) the psychiatry assessor strayed from his role as an expert and became an advocate for the applicant. The application was dismissed.