Category: Catastrophic Impairment

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.

Majerczyk v. Economical Mutual Insurance Company (20-004327)

The claimant applied to the LAT seeking CAT determination under criteria 7 and 8 and entitlement to post-104 IRBs, ACBs, and various medical benefits. Vice-Chair Johal found that the claimant was not catastrophically impaired and was not entitled to ACBs, assistive devices, the in-dispute psychology treatment, or occupational therapy treatment. The claimant was entitled to IRBs, medical marijuana, lidocaine injections, physiotherapy, and a psychology assessment. With regards to CAT determination, Adjudicator Johal stated that while it was clear the claimant suffered impairments as a result of the accident and had limitations and restrictions to her daily life, simply showing that she was restricted and limited is not sufficient to meet the CAT test under the SABS.

Franche v. Wawanesa Mutual Insurance Company (21-000723)

The claimant was involved in a motor vehicle accident in 2017. She applied to the LAT seeking catastrophic impairment determination under Criteria 8 and entitlement to numerous medical benefits. Adjudicator Shapiro excluded the report and testimony of a s. 44 assessor for failure to comply with an order to produce raw testing data. Rather than excluding testimony of assessors who did not provide expert duty forms, Adjudicator Shapiro considered the lack of expert duty form when weighing their testimony. The “but for” test was determined to be the appropriate test for determining causation. Adjudicator Shapiro found that the claimant did not have Class 4 impairments in three or more spheres of function and therefore did not meet the CAT definition under Criteria 8. The analysis focused on function in the sphere of Activities of Daily Living. Adjudicator Shapiro found that the claimant did not have a Class 4 impairment in this sphere, noting the claimant was independent in self-care, there was a gap between her perception and actual performance, and there were discrepancies in her testimony that resulted in less weight being given to her testimony and self-reporting (as well as to the expert opinion which was heavily influenced by her self-reporting). As the claimant had exhausted her non-CAT limits for medical benefits, she was not entitled to any of the medical benefits in dispute.

Handy v. Aviva Insurance Company of Canada (20-006124)

The claimant sought catastrophic impairment designation under Criterion 7, arguing that he developed chronic pain from the soft tissue injuries sustained in the accident along with exacerbation of pre-existing asymptomatic degenerative disc disease and knee osteoarthritis. The insurer submitted that the claimant’s present health condition was caused by an unrelated subsequent fall. The claimant’s assessors found a total WPI of 44 to 55%, while the insurer’s assessors found a total WPI of 9%. The WPI percentages most disputed by the parties were for the claimant’s gait derangement (20% from the claimant; 0% from the insurer), mental status impairment (1-14% from the claimant; 1% from the insurer), and spine (10% from the claimant; 0% from the insurer). With respect to gait derangement, Adjudicator Neilson agreed that but for the accident, the claimant would not have suffered knee issues and attributed a 15% WPI, which was appropriate for a patient who required part-time use of a cane for distance walking, but not at home. With respect to mental status impairment, Adjudicator Neilson accepted the insurer’s 1% WPI rating as its assessor provided a rationale for his rating, while the claimant’s assessor gave no reasonable explanation for choosing the top of the range. In doing so, she noted that providing a range of WPI percentages did not assist her in determining whether the claimant has a catastrophic impairment, and ignores the instructions provided in the AMA Guides. With respect to the spine, Adjudicator Neilson accepted the claimant’s WPI of 10%, because EMG studies pointed to radiculopathy. In total, Adjudicator Neilson found that the claimant did not sustain a catastrophic impairment. As his policy limits were exhausted, the remainder of his claim for benefits was dismissed.

Day v. BelairDirect Insurance Company (20-005603)

The claimant sought catastrophic impairment designation under Criterion 8 as a result of her involvement in an April 2016 accident. Both parties agreed that the claimant had a class 4 marked impairment due to a mental or behavioural disorder, but the insurer denied that her mental or behavioural disorder was caused by the accident and submitted that the accident did not cause any change to her pre-accident psychological impairments. Adjudicator Neilson found that the claimant’s psychological condition was worse than it was prior to the accident, and that the accident had exacerbated her condition. The pre-accident medical records from the claimant’s treating psychiatrist indicated that her major depressive disorder was in remission as of January 2016. She was getting out the house, walking, going to mall, or going for drives as of March 2016. Evidence from the claimant and family members confirmed that prior to the accident, she was functioning adequately (aside from work), but that she was no longer functioning adequately and drank alcohol excessively every day. As such, Adjudicator Neilson found that the claimant was catastrophically impaired as a result of the accident. Adjudicator Neilson also found that the claimant was entitled to attendant care benefits in the amount of $931.57 per month (as recommended by the claimant’s OT, with exception of 16 hours per day of supervision). As the claimant admitted that she had not incurred any attendant care expenses, no attendant care was payable up to the date of the hearing. Adjudicator Neilson further found that psychological counseling, chiropractic treatment, and yoga instruction, as well as the cost of an attendant care assessment were reasonable and necessary as a result of the accident, and therefore payable.

Ferlisi v. Allstate Insurance Company of Canada (21-000013)

The claimant sought catastrophic impairment under Criterion 7. The claimant sustained soft tissue injuries to her left side and developed chronic regional pain syndrome (CRPS) in her left foot as a result of the accident. She had a spinal cord stimulator (SCS) surgically inserted into her spine to address the pain she experienced from the CRPS. The parties disagree on the WPI percentage to be applied in addressing the CRPS and whether she should be assessed with the SCS turned on or off, specifically with respect to gait derangement. The claimant’s assessor attributed 40% WPI for gait (examining her with the SCS off), while the insurer’s assessor attributed 20% (examining her with the SCS on). The AMA Guides state that if an individual’s prosthesis or assistive device can be removed or its use eliminated relatively easily, the organ system should be tested and evaluated without the device. Adjudicator Neilson found that the claimant should be assessed with the SCS off, as its use can be easily eliminated. The SCS can be turned on or off with a remote control. Further, it can be turned off without the claimant’s knowledge by other electronic devices or when the battery runs out. Adjudicator Neilson therefore accepted the claimant’s 40% WPI for gait derangement. She then calculated a total WPI of 56%, and found that the claimant was catastrophically impaired as a result of the accident.