Category: Catastrophic Impairment

Applicant v. TTC Insurance Company Limited (17-002561)

The claimant sought a declaration that she suffered a catastrophic impairment as a result of the accident, and entitlement to a psychological paper review. The claimant had submitted two OCF-19s – the first alleged a catastrophic impairment due to a 55 percent Whole Person Impairment; the second alleged a catastrophic impairment due to a Class 4 marked impairment. Adjudicator Bickley held that the claimant suffered a catastrophic impairment due to two Class 4 marked impairments, in social functioning and adaptation. She rejected the arguments regarding a 55 percent WPI, and held that the claimant’s injuries amounted to a maximum of 46 percent. In terms of the Class 4 marked impairments, Adjudicator Bickley preferred the evidence of the claimant’s experts due to the consistency and explanation in the report, and the expert’s consultation with the claimant’s family members. She also found that the surveillance tended to support the claimant’s submissions regarding social isolation and lack of independence. The claimed treatment plan was not awarded because it appeared to be proposed for the purpose of supporting the tort claim rather than the accident benefits claim.

The Applicant v. State Farm Insurance Company (16-002503)

The minor claimant sought a determination that he was catastrophically impaired. Both parties agreed that the claimant suffered a traumatic brain injury and soft tissue injuries in the accident, but the claimant had significant pre-existing medical problems, including a brain injury, epilepsy, developmental delay and autism spectrum disorder. Insurer examinations determined that the claimant was not catastrophically impaired, as the accident may not have exacerbated the claimant’s pre-existing impairments. Adjudicator Lester concluded that the claimant was catastrophically impaired. She found that the claimant had provided sufficient evidence that his pre-accident impairment, abilities and limitations were worsened by the accident. Although he had many challenges prior to the accident, the claimant appeared to have been improving. The accident caused an increase in daily support and dependencies to a degree that met the definition of catastrophic impairment.

Applicant v. Allstate Insurance Company of Canada (16-003415)

The claimant sought a catastrophic impairment designation under criterion 8. The insurer denied the designation based on a number of IE reports. Under the previous SABS, only one Marked impairment or higher rating was needed in any of the four heads of functionality. Adjudicator Cezary Paluch reviewed the evidence of both parties and compared it with the AMA Guides for each functionality heading. On review, Adjudicator Paluch favoured the evidence of the insurer’s experts and considered each to be a more balanced and comprehensive analysis of the claimant and the Guides. It was also noted that in cases where pain is a major factor, a multidisciplinary approach to assessments is preferred. Moreover, the mere diagnosis of a mental disorder will not qualify as a catastrophic impairment; it must be viewed in conjunction with the Guides. While it was noted the claimant unsuccessfully attempted to return to work, Adjudicator Paluch indicated that the Guides require failures and repeated failed attempts – one attempt without context or evidence as to why the return to work failed was considered insufficient evidence. The claimant was said to have not suffered a catastrophic impairment and the claims dismissed.

Applicant v. Unica Insurance Inc. (16-002234)

The claimant sought entitlement to income replacement benefits as well as a catastrophic impairment designation. The claimant testified that following the accident she had a blackout while a passenger in another car. She indicated that the blackouts prevented her from working or resuming school studies. The insurer asserted that the blackouts were not as a result of the MVA and that the claimant did not meet the test for income replacement benefits. Adjudicators Deborah Neilson and Nicole Treksler found the claimant credible. It was noted that the claimant’s licence had been revoked due to the blackouts. On review of the medical evidence it was highlighted that the claimant made submissions that the IE assessor of the insurer did not establish a rapport with the claimant due to cultural and gender differences. It was also noted that the insurer’s expert admitted that cultural and gender differences can impact the validity of testing. On review, the claimant’s medical evidence was preferred and it was determined that the claimant’s blackouts were as a result of the MVA stemming from PTSD. As a result, she suffered a Class 4 impairment in two spheres of functionality and was deemed catastrophically impaired. The evidence of the claimant’s medical expert regarding the WPI threshold of 55% being reached by virtue of a combination of the high-end of ranges, however, was rejected. Additionally, since the blackouts, which were deemed a result of the MVA, had resulted in the claimant’s licence being revoked, and the fact that driving was considered an essential task of her employment as a babysitter, it was determined that the claimant met the test for income replacement benefits. However, because the claimant did not tender evidence regarding the availability of employment that could accommodate her impairments nor demonstrate efforts to find subsequent suitable employment, the claimant was not entitled to post-104 week income replacement benefits.

E.W. v. Primmum Insurance Company (16-003891)

The claimant sought a declaration of catastrophic impairment due to a GCS score less than 9. He was involved in a single vehicle accident and sustained serious physical injuries. His GCS at the scene of the accident was 13, and his GCS upon arrival at the hospital was 15. The only point at which the claimant’s GCS score fell below 9 was when he was intubated in preparation for surgery on his legs. Adjudicator Flude concluded that the sub-9 GCS score was not due to a brain injury or brain impairment, but was instead the result of anaesthesia used for the surgery to the claimant’s legs. He held that without the claimant demonstrating that he suffered a brain injury, he had not suffered a catastrophic impairment.

Applicant v. Jevco Insurance Company (16-002000)

The claimant was involved in a serious accident and had sustained ongoing physical, psychological, and cognitive impairments. He had returned to doing some work on a part-time basis, but was unable to engage in full time work or retraining. Adjudicator Truong held that the claimant was entitled to post 104-week IRBs based on a holistic analysis of the claimant’s post-accident abilities and impairments. It was also noted that the claimant had been approved for CPP Disability Benefits. In terms of the catastrophic impairment, Adjudicator Truong determined that the claimant suffered a combined 56 percent whole person impairment, which qualified as a catastrophic impairment. The difference of opinion between the parties had been based on whether it was appropriate to combine the impairment rating for mental status impairment rating under Chapter 4 of the AMA Guides with the mental and behavioural impairment rating from Chapter 14 of the AMA Guides, or whether doing so amounted to “overcounting”. Adjudicator Truong held that it was appropriate to combine the ratings from both Chapters 4 and 14 in this case, because the claimant had suffered a cerebral impairment (which was counted under Chapter 4), and a psychological impairment (which was counted under Chapter 14). In terms of the medical benefits claimed, Adjudicator Truong held that the claimant had not submitted sufficient evidence to prove that the claims were reasonable and necessary.

Applicant v. Wawanesa Mutual Insurance Company (16-000004)

The claimant sought a declaration of catastrophic impairment due to a Class 4 marked impairment. She had sustained soft tissue injuries and a mild concussion in the accident. Adjudicator Sapin concluded that the claimant suffered a Class 4 marked impairment in the functional category of “adaptation”. Adjudicator Sapin heard extensive evidence on the claimant’s pre-accident and post-accident life from the claimant, the claimant’s husband, and medical assessors. She concluded that the claimant suffered impairments in adaptation due to her inability to cope with household chores, leaving the home, and social situations. Although not necessary to address, Adjudicator Sapin was critical of the claimant’s and insurer’s assessors’ choice of whole person impairment related to the psychological impairment. She wrote that it was inappropriate for the claimant’s assessor to have simply picked the impairment rating at the highest end of the range in the AMA Guides, and that the insurer’s assessor had failed to consider the totality of testing when assigning an impairment rating.

Applicant v. Cumis General Insurance Company (16-003144)

The claimant sought a catastrophic designation. The insurer requested five IEs. The claimant agreed to attend three, and did not attend two because she felt the remaining assessments were excessive and unreasonable. On the basis of refusing to attend the remaining IEs, the insurer designated the applicant non-CAT. The claimant filed an application for arbitration. The insurer sought to preclude a hearing due to the claimant’s non-attendance at an IE. The Tribunal denied the insurer’s motion and determined the outstanding IEs were not reasonable; the matter was set down for a hearing. On reconsideration, Executive Chair Lamoureux ruled that although the insurer may want the remaining IE, it is not one it is entitled to have by virtue of the assessment being unreasonable. The appeal was dismissed.

Applicant v. Gore Mutual Insurance Company (16-001305)

The claimant applied for a CAT determination based on GCS. The insurer denied the determination based on a paper review of a neurologist. Adjudicator Bickley reviewed the medical evidence, which included two ambulance call reports both showing GCS scores of 15. However, during the course of hospitalization, the claimant scored GCS scores of 7, 8, and 9 at various hours. The insurer argued the sub-9 scores were due to medication and intubation and not a reflection of a brain injury. Adjudicator Bickley concluded the claimant’s diagnosed concussion constituted a brain impairment, which resulted in a subsequent intubation, which caused a sub-9 GCS. Relying on the Ontario Court of Appeal decision in Liu v 1226071 Ontario Inc., it was concluded the claimant sustained a catastrophic impairment, since scores of 9 or less were recorded in a reasonable time following the accident.

Applicant v. Peel Mutual Insurance Company (16-000013)

The claimant was involved in an MVA wherein she suffered, among other things, a mild traumatic brain injury. She had not returned to work following the MVA. The claimant sought a catastrophic designation asserting she met the 55% threshold whole person impairment rating. The insurer commissioned IE reports in which it was found she had a 40% WPI. Adjudicator Susan Sapin concluded that the claimant’s impairments equated to a 51% WPI and was therefore not CAT.