Category: Catastrophic Impairment

Khan v. Allstate Insurance Company of Canada (20-000806)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment. The claimant argued that the hearing was procedurally unfair and that the Tribunal applied the wrong test for causation. Adjudicator Neilson dismissed the reconsideration. She found that the claimant was aware of the insurer’s position regarding causation, and as such, the hearing was procedurally fair. She also concluded that the “but for” test was the appropriate test to apply on the facts of this case. In the alternative, the adjudicator found that the material contribution test would not have changed the result because she was not satisfied that there was a nexus between the accident injuries and the subsequent fall that caused additional injuries.

Khan v. Aviva Insurance Company of Canada (21-003298)

The claimant disputed entitlement to a catastrophic impairment designation, attendant care benefits of $6,000 per month, and various medical benefits. The insurer argued that the claimant’s impairments were a result of subsequent injuries and events in his life. Adjudicator Lester concluded that the accident was not the “but for” cause of the claimant’s impairments, and he did not suffer a catastrophic impairment. The subsequent accident and life stressors still would have occurred and led the psychological diagnosis preventing him from engaging in life activities. For the same reasons, the claims for ACBs and medical benefits were dismissed.

Gagnon v Belairdirect (20-010307)

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.

Cabral v. Northbridge General Insurance Company (20-013500)

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.

Rupani v. Travelers Insurance Company of Canada (21-004893/AABS0

The catastrophically-impaired claimant brought an application to dispute medical and housekeeping benefits. Her claim for housekeeping was denied because she was unable to establish that the workers that she hired had provided services in the scope of employment they ordinarily engaged in. Adjudicator Grant found that it was not enough for the claimant’s hired workers to have claimed to be certified professionals on Kijiji. Adjudicator Grant held that the treatment plan for an emotional support dog was denied under s. 38 because the claimant had incurred the expense prior to submitting the treatment plan. Finally, Adjudicator Grant found that the claimant’s treatment plan for lidocaine injections was not reasonable or necessary. The claimant was noted to have stated in her medical records that she did not find the injections helpful, and several of her treatment providers had opined that the injections were not reasonable or necessary.

Sahadeo v. Pafco Insurance Company (19-006331)

This is an amended Reconsideration Decision. The claimant sought reconsideration after being found not to have a catastrophic impairment . Vice-Chair Lester found that a failure to decide on the claimant’s diagnosis was not an error of fact and law. It was not necessary to rule on the claimant’s diagnosis since the level of psychiatric disorder is not determinative of the degree of impairment in an area of function. Vice-Chair Lester found that not mentioning an expert report in the hearing decision was not an error. The report did not address the claimant’s functionality and was not persuasive for the adjudicator. Vice-Chair Lester found that even if she accepted the claimant’s evidence for a limitation regarding Adaptation, those limitations were considered moderate impairments. Vice-Chair Lester found that a claimant must demonstrate that he has repeatedly failed to adapt to stressful circumstances to meet the high bar of being markedly impaired, simply avoiding a situation is not necessarily a demonstration of a repeated failure to adapt, and an inability to complete a task because of a psychological or pain disorder is not necessarily a demonstration that a person failed to adapt to a stressful situation. The claimant was able to regulate his emotions and cope in a series of occupational therapy tests, contrary to his claim to have difficulties at work. The claimant was only able to provide one-off examples of losing emotional control at work. The claimant was found not to have a CAT impairment. The request for reconsideration was denied.

Mbarak v. Wawanesa Mutual Insurance Company (20-014858/AABS)

The claimant was involved in an accident in 2016 and applied to the LAT seeking a CAT designation. The Tribunal found that the claimant had a CAT impairment as a result of one marked impairment in Adaptation. The adjudicator noted that the claimant could not return to work, had poor memory and recall, and was unable to adapt to any stressful circumstances. The insurer challenged the claimant’s medical examiner’s report on the basis that it relied on self-reporting. The Tribunal found that the medical examiner’s report did not solely rely on self-reporting but also looked at other evidence, including witness statements, and provided a satisfactory explanation of the claimant’s mental health. The adjudicator also refused to allow the insurer to disclose the clinical records of its IE psychiatrist during the course of the hearing, as the insurer could not provide a reasonable explanation for the late disclosure and it was prejudicial to the claimant.

Russell v. Dumfries Mutual Insurance Company (20-004264/AABS)

The claimant applied to the LAT for a CAT designation, ACBs, and medication. The adjudicator found that the claimant did have a CAT impairment under Category 8 and was entitled to receive ACBs and medication. The Tribunal rejected the insurer’s argument that the pre-accident family death was the cause of the claimant’s psychological impairment. The LAT found that the claimant was not entitled to an ACB of $6,000/per month as she did not require 24/7 supervision and was able to work 3 to 4 hours a week. Although she was involved in a fire in 2018 from leaving the stove on, it did not mean she required 24/7 supervision. The claimant was found to be entitled to $1,561/per month in ACBs. The claimant was entitled to incurred ACBs, occupational therapy fees, an audiometric and speech-language pathology assessment, a social work assessment and RSW services.

Nassan v. Intact Insurance Company (20-010691/AABS)

The claimant applied to the LAT disputing his CAT denial under Criterion 8. The Tribunal held that the claimant did not sustain a CAT impairment under the SABS. The claimants had an unfortunate series of prior events before the MVA including being subject to torture and having to flee to Canada. The adjudicator determined that the claimant could not satisfy the “but for test” to claim that the 2017 MVA was the primary cause of his mental and behavioural impairment. The insurer’s examination by the doctors determined that the claimant had post-traumatic stress disorder which had no relationship to the MVA. Additionally, the claimant’s inability to work and take on household chores was determined to be connected to his physical injuries from the MVA rather than his mental or behavioural impairments.

Shalto v. Intact Insurance Company (19-014473)

The claimant was involved in a motor vehicle accident in May 2016. She applied to the LAT seeking CAT determination under Criteria 8 and entitlement to NEBs, ACBs, and numerous medical benefits. Adjudicator Grant applied the “but for” test to the issue of causation and found that although the evidence supported some level of psychological impairment as a direct result of the accident, the accident was not a necessary cause of the claimant’s current psychological impairments. In addition, Adjudicator Grant found that the claimant was not catastrophically impaired as her impairments did not meet the requirement of being “marked” within any of the four domains. Adjudicator Grant found that physical pain complaints had more of an impact on the claimant’s engagement in activities than her psychological impairments. As the claimant had reached the limit of her non-CAT benefits and was not catastrophically impaired, she was not entitled to NEBs, ACBs, or any of the medical benefits in dispute.