Category: Catastrophic Impairment

M.A. v Certas Home and Auto Insurance (19-002077)

The insurer raised a preliminary issue regarding whether the claimant was statute barred from proceeding with her claim for a catastrophic impairment pursuant to section 55 of the SABS, because she refused to attend a neuropsychological IE. Adjudicator Boyce concluded that the claimant was barred from proceeding with her claim until she attended the requested IE. In doing so, the adjudicator noted that the insurer’s request for the IE was timely and reasonable, made in good faith and appropriate given its rights under the SABS. Adjudicator Boyce further noted that without a complete CAT assessment, the insurer would be at a disadvantage from an adjusting standpoint and in the proceedings before the Tribunal.

A.M.F. v. The Dominion of Canada General Insurance Company (17-006710)

The insurer sought reconsideration of the Tribunal’s decision that the claimant suffered a catastrophic impairment and that she was entitled to two medical benefits for physical therapy. Adjudicator Parish rejected the reconsideration. She found that all of the insurer’s arguments essentially amounted to re-argument of the case. The Tribunal was not required to make note of every finding of every expert in its decision, nor was it required to address all case law submitted by the parties. The Tribunal’s decision to accept the opinion of the claimant’s assessors over the insurer’s assessors was not an error of law. Nor was use of the California Method for converting a GAF into WPI.

Applicant v. Unica Insurance Company (17-007052)

The claimant sought reconsideration of the Tribunal’s order that she did not suffer a catastrophic impairment and that she was not entitled to a chronic pain assessment. Vice Chair Lester rejected the reconsideration, holding that the Tribunal had weighed the evidence before it and had good reason to give more weight to the insurer’s assessors. The Tribunal provided an adequate explanation for this decision.

Applicant v. Certas Direct Insurance Company (18-000563)

The minor claimant sought a catastrophic impairment determination following an accident in which he sustained a concussion and developed behavioural disorders, including post-traumatic stress disorder and obsessive-compulsive disorder. Adjudicator Daoud found that the claimant suffered a Class 4 Marked Impairment in adaptation as a result of his injuries. She accepted the evidence of the claimant’s special education teacher and the claimant’s neuropsychologist.

Applicant v. Toronto Transit Commission (18-009821)

The claimant sought a determination that he suffered a catastrophic impairment as a result of the accident. Adjudicator Boyce agreed with the claimant and concluded that he suffered a Class 4 marked impairment in adaptation, as well as a WPI in excess of 55 percent. Although the claimant presented with multiple credibility issues, Adjudicator Boyce was persuaded that the claimant’s brain injury resulted in significant changes in function, including the inability to work as a chef, having to sign over power of attorney to his wife, and several documented suicide attempts. He preferred the evidence of the medical experts testifying for the claimant, who provided more coherent opinions and withstood cross-examination.

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunal) (2019 ONCA 518)

The Tribunal and the insurer appealed the Divisional Court’s decision that there was a reasonable apprehension of lack of adjudicative independence. The Court of Appeal dismissed the appeal and held that the Divisional Court had correctly applied the case law regarding adjudicative independence. The dispute was remitted to the Tribunal for a new hearing on the 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.

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