Category: Catastrophic Impairment

Kellerman-Bernard v. Unica Insurance Company (2023 ONSC 4423)

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Post date August 2, 2023
No Comments on Kellerman-Bernard v. Unica Insurance Company (2023 ONSC 4423)

The claimant appealed the Tribunal’s decision that she could not receive a catastrophic impairment designation because she was not involved in the subject accident. The claimant’s son was significantly injured in an accident, and the claimant suffered psychological injuries. The Tribunal held that only persons involved in an accident could apply for a catastrophic impairment designation. The Divisional Court reversed the Tribunal’s decision, holding that the adjudicator erred in restricting catastrophic impairment designations to persons involved in an accident. The SABS allows the designation for an “insured person” which includes certain family members of accident victims who were not themselves in the accident.

Milanovic v. Intact Insurance Company (21-008566)

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Post date July 26, 2023
No Comments on Milanovic v. Intact Insurance Company (21-008566)

The insurer argued that pursuant to s. 55 of the SABS the claimant was barred from proceeding with a claim for catastrophic impairment as he did not submit to an IE. The adjudicator concluded that the claimant was not barred. The insurer’s notices were argued to not provide medical and other reasons pursuant to section 44(5) of the Schedule. The notices had stated that the IEs were required, “to determine if the injuries you sustained in the accident resulted in impairments that would meet the catastrophic impairment definition.” The adjudicator found that the notices were non-compliant because they failed to refer to the claimant’s medical condition(s) and as a result it was unclear what the claimant’s medical conditions were. The adjudicator stated that the respondent insurer should have provided some context regarding what the conditions /impairments were. The adjudicator stated that at the very least the insurer’s reasons should include specific details about the claimant’s condition forming the basis for the claimant’s decision or alternatively identify information about the claimant’s condition that the insurer did not have but required.

Abdi v. TD General Insurance Company (2023 ONSC 3536)

Post author By tgp-admin
Post date July 25, 2023
No Comments on Abdi v. TD General Insurance Company (2023 ONSC 3536)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment, as he did not meet the Extended Glasgow Outcome Scale (“GOS-E”). In particular, the adjudicator preferred the assessments of the insurer which took place almost 24 months after the accident, rather than the assessments of the claimant which took place around 16 months after the accident. The GOS-E test refers to level of functioning “6 months or more”. However, the adjudicator was not required to accept the assessment that was completed earliest in time. The adjudicator’s decision to prefer the insurer’s assessments was open to her on the evidence, and she explained why she did not accept the claimant’s assessments. The Tribunal therefore made no error with regard to the temporal aspect of the assessments. Second, the adjudicator did not restrict her consideration to impairments exclusively or solely attributable to traumatic brain injury, and she did contemplate that physical and psychological impairments caused by or related to the traumatic brain injury were to be considered in the GOS-E. In applying the test, the adjudicator found that many of the impairments relied upon by the claimant reflected an unwillingness to perform acts, rather than an inability to perform them. Those were properly excluded from consideration. Finding no legal error, the Court dismissed the appeal.

Doran v Gore Mutual Insurance Company (20-013924)

Post author By tgp-admin
Post date June 23, 2023
No Comments on Doran v Gore Mutual Insurance Company (20-013924)

The claimant sustained a CAT impairment and sought ACBs from the insurer. The insurer initially provided ACBs at $6,000 per month, but benefits were reduced to $4,339.71 and later cut to $1,040.10, based on the determination that she no longer required basic supervisory care and mobility assistance. The claimant disputed these reductions. The LAT ruled that the claimant was entitled to ACBs at $1,630.72 per month and interest on overdue payments . A few procedural issues were raised. The claimant argued that the s. 44 IE report and Form 1 should be excluded as the insurer’s correspondence and examination notice were not compliant with sections 19, 42 or 44 (5) of the SABS. The claimant asserted that the notice to assess did not include a medical reason for the IE request distinct from the non-earner benefit. As such, the claimant contended that the deficient notice should lead to the exclusion of the report. The LAT held that the SABS does not provide for the exclusion of an IE report as a remedy for non-compliance with s. 44(5) and that the LAT could not read such a remedy into the SABS. Furthermore, the LAT found that a claimant’s attendance at an IE constitutes a waiver of any recourse he/she may have had against the insurer for providing a deficient notice. Accordingly, the LAT stated that it is incumbent upon claimants to seek clarity regarding the medical reasons for an assessment before consenting to participate. Given the claimant’s failure to seek clarification with the insurer and her ultimate participation in the IE, the LAT decided that the corresponding IE report and Form 1 should be allowed. Addressing a second procedural issue, the LAT allowed the claimant to add a special award but found that non-compliance with notice requirements did not meet the threshold for a special award. The LAT held that: (a) deficient notices can only be addressed when they occur/prior to participation in the IE they correspond to and (b) assigning a remedy for a deficient notice would be akin to reading a remedy into the SABS where none exists. The claim for a special award was denied.

Banga v. Certas Home and Auto Insurance Company (20-010495)

Post author By tgp-admin
Post date June 20, 2023
No Comments on Banga v. Certas Home and Auto Insurance Company (20-010495)

The claimant was involved in a motor vehicle accident on June 22, 2016. The policy of insurance was in place on May 18, 2016. The SABS was revised June 1, 2016. The revised SABS raised the threshold for determining catastrophic impairment pursuant to criteria F, from 1 of 4 class IV findings to 3 of 4 class IV findings. The claimant argued that the original definition of catastrophic impairment was applicable to her claim. In this case the adjudicator followed a prior LAT decision “HS” 17-007264 v. Allstate Insurance, 2018 Can LII 132563 that also found the 2016 catastrophic definition applicable to accidents that took place after June 1, 2016. The adjudicator reasoned that if the 2016 SABS planned on including the catastrophic impairment definition in the 2010 Schedule, it would explicitly say so. The adjudicator noted there were transitional provisions, yet the catastrophic definition was not mentioned there. The adjudicator also was required to consider whether other claims were statute barred as the claimant’s application was filed after the limitation period prescribed by section 56 of the SABS. The adjudicator chose to exercise her discretion pursuant to section 7 of the LAT Act and to permit portions of the application disputing entitlement to treatment and assessment plans to proceed. She ruled that the claim for IRBs could not proceed. She considered the prejudice to the defendant too great compared to the prejudice involving the other appeals.

Khan v. Allstate Insurance Company (2023 ONSC 3652)

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Post date June 20, 2023
No Comments on Khan v. Allstate Insurance Company (2023 ONSC 3652)

The claimant appealed the LAT’s decision that he did not suffer a catastrophic impairment. The claimant argued that procedural fairness was denied because he did not know the insurer would argue that an intervening event was the cause of his impairments, and argued that the LAT applied the wrong causation test. The LAT dismissed the appeal. Regarding procedural fairness, the Court held that the claimant’s failure to object to the insurer’s arguments at any point during the original hearing prevented him from advancing this argument on appeal. Failure to object deprived the Court of the evidence necessary to establish how the LAT would have dealt with the concern. Regarding causation, the Court held the LAT applied the proper “but for” test. The material contribution test is only applicable where there are multiple tortfeasors and there is risk of tortfeasors escaping liability by pointing the finger at one another. That was not the case in this dispute where the claimant suffered a medical event weeks after the accident.

Anwar v. Travelers Insurance (21-000574)

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Post date June 8, 2023
No Comments on Anwar v. Travelers Insurance (21-000574)

The claimant was found not to have sustained a catastrophic impairment pursuant to criteria 4 of section 3.1 of the SABS. While it was agreed that the claimant had sustained a traumatic brain injury pursuant to a positive CT scan, the adjudicator concluded that the level of impairment caused by the brain injury was not to the degree required for a catastrophic impairment. The adjudicator followed Abdi v. TD General Insurance Company 2021 CanLII 127474. The claimant relied on a report by a neuropsychologist. The adjudicator concluded that a GOS-E assessment conducted by an occupational therapist and reviewed by a neuropsychologist holds no weight because it is not compliant with the Schedule.

Chaffey v. Wawanesa Mutual Insurance Company (22-001049)

Post author By tgp-admin
Post date May 5, 2023
No Comments on Chaffey v. Wawanesa Mutual Insurance Company (22-001049)

The claimant sought a determination that he was catastrophically impaired after a motorcycle accident in July 2018. Under Criterion 4 there is a two-prong test which must be satisfied. The parties agreed that the first prong of the test had been met as there was sufficient diagnostic evidence of brain trauma. Looking at the second prong of the test, Adjudicator Hines outlined the purpose of the GOS-E and provided guidance regarding its application, including the necessity of clinical judgement to distinguish between the impact of brain injury on function versus other impairments. The LAT ultimately preferred the evidence of the claimant’s experts and concluded that he had sustained a lower moderate disability one-year after the accident, sufficient for a catastrophic designation under Criterion 4.

Darwich v. The Co-operators (20-015268)

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Post date March 27, 2023
No Comments on Darwich v. The Co-operators (20-015268)

The claimant applied to the LAT for a catastrophic impairment designation and the cost of a private addiction treatment centre. The claimant suffered injuries from an accident that culminated in him being prescribed increasingly higher amounts of morphine to relieve his accident-related back pain. At some point, the claimant’s historic substance abuse issues, which were dormant for many years, had resurfaced and he relapsed. The claimant subsequently turned to illicit drugs to cope with his pain and stress. He was diagnosed with polysubstance abuse disorder, depression and somatic symptom disorder. While the claimant was on a positive trajectory after completing an in-patient drug treatment program, he eventually relapsed while battling cancer and passed away shortly after the LAT hearing . Given that the claimant passed away shortly after the LAT hearing, the question of catastrophic impairment was rendered moot. The sole issue remaining was whether the claimant’s attendance at the private addiction treatment centre was reasonable and necessary. Adjudicator Norris considered whether the accident caused the claimant to experience depression, somatic symptom disorder and to relapse into polysubstance disorder. Adjudicator Norris held that the accident need not be the sole cause of the claimant’s injuries but need only be found to be a factor that materially contributed to the injuries. Adjudicator Norris concluded that the claimant’s polysubstance use disorder was directly caused by the accident, and the in-patient treatment program was an accident-related expense. Even though the addiction treatment received by the claimant could have been covered by OHIP, Adjudicator Norris found that it was reasonable and necessary, as expert evidence revealed that the urgency of the situation required immediate treatment and certain on-site care that an OHIP-funded facility could not provide for.

Achaia-Shiwram v. Intact Insurance Company (20-004699)

Post author By tgp-admin
Post date March 23, 2023
No Comments on Achaia-Shiwram v. Intact Insurance Company (20-004699)

The claimant applied to the LAT disputing her entitlement to IRBs and CAT impairment. The respondent raised a preliminary issue that the claimant did not dispute IRB entitlement within 2 years pursuant to s. 56. At the beginning of the in-person hearing, the claimant attempted to summons two witnesses, the claims adjuster and the CAT OT IE assessor. The respondent objected to these witnesses as the claimant had not provided their names on the witness list provided to the respondent and because the claimant had not properly served a summons to witness on either the claims adjuster or the CAT OT IE assessor. Adjudicator Hines agreed with the respondent noting that the potential witnesses were not served with a summons despite the claimant having ample time to do so. Adjudicator Hines also noted that because the claimant did not include them on their witness list, the respondent would be prejudiced by adding them as witnesses on the eve of the hearing, as the respondent would not have had time to prepare for examinations. The claimant also brought a motion to exclude an IE report based on the hourly rate charged by the IE doctor. The IE doctor confirmed her hourly rate was $225 hour and charged $3,375 for the IE assessment. However, the respondent provided an OCF-21 invoice that confirmed it paid the IE assessor $2,000 as per s. 25 of the SABS. Adjudicator Hines allowed the IE report as evidence. As for the substantial issues, Adjudicator Hines preferred the evidence of the IE assessors with respect to CAT and noted that causation was a major factor. With respect to causation, Adjudicator Hines noted that the claimant argued that the accident caused a decline in her employment performance; however, her failure to submit post-accident employment records to this effect weakened her argument. Adjudicator Hines also pointed to an intervening event of a volleyball injury, which caused further deterioration in the claimant’s condition and ability to work. Adjudicator Hines found that the claimant did not meet her onus of proving that but for the accident she would not have sustained the psychological impairment which formed the basis of her CAT application and IRB claim. As Adjudicator Hines concluded that the claimant did not meet the IRBs disability test, she did not rule on the s. 56 limitation period argument.

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