Category: Catastrophic Impairment

Applicant v. Unica Insurance Inc. (17-007052)

The claimant sought a declaration that she sustained a catastrophic impairment, and sought entitlement to ACBs and medical benefits. The insurer denied all of the claims and argued that the claim for ACBs was time barred. Adjudicator Ferguson held that the claimant did not suffer a catastrophic impairment. He preferred the evidence of the IE assessors over that of the claimant’s assessors because the claimant’s assessors did not conduct any psychological testing, did not discuss the four areas of function, and did not explain how his scores for physical impairments were made. Adjudicator Ferguson held that the claim for ACBs was time barred and that the claimant only had two years from the date the insurer reduced her ACBs entitlement to apply to the LAT. The claims for medical benefits were dismissed because the claimant failed to provide evidence that they were reasonable for her injuries.

S.K. v. TTC Insurance (17-002561)

The Tribunal found that the claimant sustained a catastrophic impairment due to two marked impairments. The insurer sought reconsideration based on a number of arguments. Vice Chair Trojek rejected the reconsideration. She held that there was no requirements that the adjudicator convert the marked impairment into a WPI. She also wrote that the adjudicator considered the evidence before the Tribunal and arrived at reasonable conclusion based on the evidence. Finally, Vice Chair Trojek held that the Tribunal did consider the claimant’s credibility, and that the adjudicator’s view on credibility was not to be reweighed on reconsideration.

Applicant v. TD Insurance (17-005449)

The insurer brought a motion arguing that the LAT could not adjudicate a catastrophic impairment dispute without some other benefits also being in dispute. Adjudicator Ferguson rejected the insurer’s position and held that the LAT does have jurisdiction to determine whether a claimant is catastrophically impaired regardless of any entitlement to benefits being disputed.

Applicant v. Aviva Insurance Canada (17-004258)

The insurer argued that the LAT did not have jurisdiction to determine if the claimant sustained a catastrophic injury because the claimant had not disputed entitlement to any substantive benefits. Adjudicator Ferguson dismissed the insurer’s motion. Adjudicator Ferguson held that the provisions of the Insurance Act and the SABS did not preclude the LAT from a determination of a catastrophic impairment on a stand-alone basis.

Applicant v. State Farm Mutual Automobile Insurance Company (16-001226)

The claimant sought a catastrophic impairment on both mental or behavioural grounds as well as WPI. Adjudicator Paul Gosio reviewed the medical evidence and conducted a pre- and post-accident review of the claimant’s functionality, and determined that the claimant sustained a Class 4 marked impairment in the fields of activities of daily living, concentration, persistence and pace, as well as adaptation. However, since the claim was brought under an older version of the SABS, only one of the findings was necessary. Moreover, given the finding, Adjudicator Gosio did not conduct at whole person impairment analysis. The claimant was deemed catastrophically impaired.

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.