Category: Catastrophic Impairment

J.L. v. Wawanesa Mutual Insurance Company (18-000766)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under the Glasgow Coma Scale. He argued that the Tribunal should have admitted video evidence of the paramedic administering the GCS. Adjudicator Boyce agreed with the Tribunal that the video had limited probative value and was unlikely to change the result of the hearing. The paramedic attended the hearing and was examined on his GCS measurements. The adjudicator also rejected the claimant’s arguments that the insurer’s expert gave evidence outside of his report (such as addressing inconsistencies within his expertise).

R.T. v. The Economical Group (17-008069)

The claimant was catastrophically impaired as a result of an accident and sought a determination that she was entitled to receive home modifications and home devices in the amount of $415,334.00. The insurer agree that home renovations were required but disputed the scope and quantum of the proposed benefits. Adjudicator Grieves found that the proposed benefits relating to a rear entrance, deck, intercom system, and security system were reasonable and necessary. Adjudicator Grieves found that the proposed installation of an elevator, bedroom addition with ensuite bathroom, and an addition for a therapy room were not reasonable and necessary. Adjudicator Grieves found that the claimant was only entitled to interest on the portions of the treatment plan for which costs had been incurred.

F.D. v. Allstate Canada (17-006372)

The claimant sought a determination that she had sustained a catastrophic impairment as a result of the accident. The parties disputed causation with respect to the claimant’s impairments. Adjudicator Daoud confirmed that the “but for” test is the proper test for causation in accident benefits cases. Adjudicator Daoud found that “but for” the accident the claimant would not have suffered from her impairments, and she was catastrophically impaired due to Class 4 marked impairments in activities of daily living and adaptation; she did not consider the whole person impairment.

The Applicant by his Guardian, K. R. v. Unifund Assurance Company (18-001975)

The claimant was catastrophically impaired in a motor vehicle accident in August 2017, and remained in a coma until the date of his death on September 11, 2018. The claimant claimed for legal fees incurred in obtaining a guardianship order, arguing that the legal fees were a rehabilitative benefit. The respondent argued that the legal fees were not goods and services, and further denied liability based on the claimant’s failure to submit and treatment plan in advance of incurring the expense. Adjudicator Fricot concluded that the claimant was not entitled to payment for the legal fees incurred in obtaining a guardianship order. She noted that irrespective of whether the expense was a rehabilitation expense, the claimant did not submit a treatment plan in advance of incurring the legal costs associated with obtaining the guardianship order. As such, the respondent was not liable to pay those costs.

Applicant v. Aviva General Insurance (17-004258)

The insurer sought reconsideration of the Tribunal’s decision that the claimant could apply to the LAT to dispute a catastrophic impairment determination without any other benefits being in dispute. Vice Chair Flude rejected the insurer’s arguments and held that the Insurance Act permitted the Tribunal to hear the claimant’s dispute.

J.R. v . Coachman Insurance Company (17-001337 and 17-001154)

The claimant was involved in a major 2002 workplace accident and was then in two motorcycle accidents in 2011 and 2012. The claimant applied to the LAT seeking a determination that he sustained a catastrophic impairment as a result of one or both of the motor vehicle accidents. Adjudicator Shapiro found that the claimant was not catastrophically impaired and that his current level of impairment was not materially contributed to by the accident.

H.C. v. Allstate Insurance Company (17-007262)

The claimant was in an accident in August 2016. He argued that the pre-June 1, 2016 definition of catastrophic impairment should apply to his claim because his policy had not renewed. Adjudicator Neilson disagreed with the claimant and held that section 2 of the SABS unambiguously stated that the new catastrophic impairment definition applied to the claimant’s claim.

H.S. v. Allstate Insurance Company (17-007264)

The claimant was in an accident in August 2016. She argued that the pre-June 1, 2016 definition of catastrophic impairment should apply to her claim because her policy had not renewed. Adjudicator Neilson disagreed with the claimant and held that section 2 of the SABS unambiguously stated that the new catastrophic impairment definition applied to the claimant’s claim.

J.M. v. Certas Home and Auto Insurance Company (18-001406)

The claimant was involved in an accident in 1997. She applied for a catastrophic impairment determination in 2007, which found that she did not meet the definition. She did not dispute the determination. In 2016 she submitted a new OCF-19 seeking a catastrophic impairment determination and sought payment for assessments in that regard. The insurer argued that the claimant was not entitled to seek a catastrophic impairment determination and that it was not required to pay for assessments because the 10 year period had expired. Adjudicator Hines concluded that the claimant was permitted to submit a treatment plan for catastrophic assessments, and that such assessments could be payable because such assessments did not fall under the medical/rehabilitation limits. However, she also concluded that the procedure in the 2010 SABS applied rather than the 1996 SABS, meaning that the claimant’s entitlement to such assessments was limited to $2,000 per assessment and that rebuttal reports were not payable by the insurer. Finally, Adjudicator Hines concluded that the insurer was not required to pay for the claimed assessments because they were not reasonable and necessary. The evidence suggested that the claimant remained quite functional and did not demonstrate an ongoing functional limitation that had developed between 2007 and 2017.

E.E. v. Aviva Insurance Company (16-004281)

The insurer sought reconsideration of the Tribunal’s decision that the claimant had sustained a catastrophic impairment and was entitled to attendant care benefits. Associate Chair Jovanovic denied the request for reconsideration. He held that the adjudicator did not err in preferring the evidence and opinions of the claimant’s experts and treating physicians, and that it was not an error to accept an opinion of the claimant’s treating physician. In terms of attendant care benefits, the Associate Chair held that the claimant’s spouse could provide professional services without providing such services through an independent contracting company; he held that the spouse’s leave from work at the time of the accident did not prevent the spouse from acting as a professional service provider after the accident; and held that the verbal promise to pay the spouse was sufficient to meet the “incurred” definition. The Associate Chair also upheld the payment of attendant care for overnight supervision by the spouse.