Category: Catastrophic Impairment

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

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.

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.

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.

The claimant filed a LAT Application seeking a determination of catastrophic impairment under Criteria 8. At the outset of the hearing, the claimant raised a motion to have the insurer’s psychology report excluded because the psychologist had passed away and could not be cross-examined. Adjudicator Norris allowed the insurer to rely on the report but advised that the weight it held would reflect the claimant’s inability to cross-examine the author of the report. Causation was an issue in the hearing. The claimant had pre-existing diabetes and brain lesions and had been approved for CPP-D benefits. Adjudicator Norris found that the claimant’s psychiatry assessor overstated the claimant’s pre-accident functioning and attributed her post-accident functioning to her accident-related injuries without full consideration of the claimant’s physical issues (as opposed to mental/behavioral issues) which impaired her functioning. Adjudicator Norris held that an analysis of mental and behavioral impairments must exclude impairments that are caused by physical injuries. The claimant was determined not to be catastrophically impaired.

The claimant was involved in a motor vehicle accident on February 9, 2006 (the “2006 accident”). He brought an application seeking a CAT designation due to a mental or behavioral disorder. The insurer argued that the claimant did not suffer from a catastrophic impairment and also that his alleged injuries arose from a previous motor vehicle accident in 2002 (the “2002 accident”). At the outset of the hearing, the claimant moved to call a witness. The LAT held that the claimant was not entitled to call the witness because he had not been included in the witness list outlined in the case conference Order. The LAT permitted the claimant’s requested relief because he had substituted for a witness who had been listed in the case conference Order, there was sufficient time in the hearing schedule, and because the claimant had notified the insurer of his intention to call the witness. With respect to the issue of CAT, the LAT found that the claimant had not suffered a catastrophic impairment because he did not suffer a marked impairment in any of the four areas of function. The LAT also found that the claimant’s injuries did not arise from the 2006 accident because he had advised three of his treating practitioners in 2007 that his pain and psychological injuries arose from the 2002 accident and had not been affected by the 2006 accident. The LAT further noted that the claimant had commenced his application in May 2012, six years after the 2006 accident and only two months after the claimant was involved in a motorcycle accident in 2012, in which he sustained a concussion. The claimant’s application was dismissed.