Category: Catastrophic Impairment

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.

Lynch v. Intact Insurance Company (20-014497)

The claimant applied to the LAT seeking CAT determination under Criteria 8 and entitlement to post-104 IRBs . Vice-Chair Shapiro applied the “but for” test to the issue of causation. Vice-Chair Shapiro found that the claimant’s current stand-up comedy activities were a “hobby” and not a career that disqualified the claimant from post-104 IRBs. The “hobby” netted the claimant part-time income that was “not nearly commensurate with his pre-accident position.” The claimant was entitled to post-104 IRBs less post-accident income and any applicable deductions, including deductions for CPP disability benefits. The CAT analysis focused on whether the claimant had a Class 4 impairment in ADLs. Vice-Chair Shapiro considered the claimant’s very mild functional limitations on most days as well as his limitations in acute periods and found that overall the clamant had an ADL rating lower than a Class 4. The claimant was found not to be CAT as he did not suffer a Class 4 impairment in 2 of the 4 domains.

Cruz v. Belair Insurance Company (20-014208)

The claimant was involved in a serious motor vehicle accident in September 2017, in which she sustained multiple fractures. She applied to the LAT seeking CAT determination under Criteria 7 and entitlement to post-104 IRBs, medical benefits, and a special award. Vice-Chair Lester decided to exclude two insurer reports that were served after the deadline for productions. The claimant was permitted to call the claims adjuster despite late service of particulars for the claim for a special award. The claimant’s assessors determined the claimant had a WPI rating of 66%. The insurer’s assessors determined the claimant had a WPI rating of 40%. Vice-Chair Lester determined that the WPI ratings of the claimant’s assessors were incorrect for a variety of reasons, including advancing a rating for a future risk. Vice-Chair Lester found that the claimant had a combined WPI rating of 47% and was not catastrophically impaired. The claimant’s pre-accident employment jobs had all been part-time short-term positions in retail, childcare, and a travel agency. Vice-Chair Lester found that the claimant was unable to sit long enough for any sedentary part-time position and was entitled to post-104 IRBs. The claimant was entitled to OT services and physiotherapy. She was not entitled to a SPECT assessment or a special award.

Smith v. Certas Direct Insurance Company (20-006605)

The claimant was involved in an accident in 2017. He applied to the LAT seeking CAT determination under Criteria 2,6, 7, and 8, as well as entitlement to NEBs, ACBs, and medical benefits. Causation was a key issue at the hearing. Adjudicator Hines held that the “but for” test was the appropriate test to determine causation. The crux of the dispute was whether the accident led to the progression of pre-existing peripheral arterial disease resulting in the above-knee amputation of the claimant’s right leg in September 2020. Adjudicator Hines found that the claimant was catastrophically impaired under Criteria 2 because the accident was a “but for” cause of the amputation, and entitled to NEBs, ACBs, chiropractic treatment, and the cost of CAT assessments. He was not entitled to the cost of a home exercise program. Adjudicator Hines allowed the insurer to rely on late-served CAT reports as they were responding to a new OCF-19 submitted by the claimant. Adjudicator Hines excluded an insurer addendum report as it was served two-days before the hearing and there was no reason why the causation issue addressed in the addendum report could not have been addressed in the initial report.

Papadakis v. Wawanesa Mutual Insurance Co. (2022 ONSC 6928)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment, and that he was not entitled to IRBs or further physiotherapy. The Divisional Court dismissed the appeal. The only point of law raised in the appeal was whether the Tribunal was correct to exclude a WPI rating for a contingency of future events. The Court agreed that the Tribunal was correct in excluding future contingencies. The authorities support the conclusion that the WPI rating is based on a person’s presentation at the hearing without contingency for future changes. The Court also agreed with the Tribunal’s exclusion of WPI ratings for pre-existing conditions, as the AMA Guides require deducting from the WPI rating the estimated impairment ratings for pre-existing injuries or conditions in order to obtain the net WPI from accident-related impairments. The Court dismissed the remaining grounds of appeal as not raising points of law. The arguments regarding ignoring evidence and rulings on witnesses did not raise appropriate grounds for appeal, and the claimant was not permitted to raise additional issues not contained in the Notice of Appeal.

Crecoukias v. Toronto Transit Commission (19-014590)

The claimant witnessed an individual being struck and killed by a bus. He applied to the LAT for a catastrophic impairment designation, and disputing entitlement to ACBs and various medical benefits. The insurer argued that the claimant’s severe psychological impairments were the result of pre-existing schizophrenia that was already worsening prior to the accident. Adjudicator Neilson agreed with the insurer. Although she accepted that the claimant suffered a psychological injury from witnessing the incident, she found that the schizophrenia and severe psychological impairments demonstrated by the claimant were not a result of the accident, and that it would have developed regardless. The claimant showed a prodromal stage of schizophrenia from a young age, and he was at high risk from developing schizophrenia due to drug use and family history of psychosis. The evidence of the claimant’s mother was rejected as being non-credible as it was contradicted by the medical records of the claimant’s treating psychiatric team. Adjudicator Neilson also noted that she rejected the opinion of the claimant’s catastrophic impairment experts, as it was a chiropractor that provided the AMA ratings following assessment and diagnosis by a psychiatrist. Even using the opinion of the claimant’s psychiatrist, Adjudicator Neilson found that the claimant failed to prove that he suffered a Class 4 marked impairment or Class 5 extreme impairment in any of the four spheres of function as a result of the accident. Adjudicator Neilson did not need to address the claims for ACBs or medical benefits as the claimant had exhausted his medical benefits limits. However, in the event she was overturned with regard to the catastrophic impairment decision, she would have held that the unpaid ACBs related to transportation for the service provider, which was not payable under the SABS. She also found the claimed transportation to be inconsistent with the claimant’s ability to drive himself. Adjudicator Neilson also would have rejected the denied rehabilitation support worker services, as they were duplicative of services the claimant was already receiving at CAMH. Finally, Adjudicator Neilson would have rejected the claims related to the hotel stays, because they were claimed as medical benefits and incurred without a treatment plan. There were also procedural matters addressed at the outset of the hearing. Adjudicator Neilson allowed the insurer’s IE psychiatrist to observe the testimony of the claimant’s psychiatric expert; she allowed a defence medical report completed in the tort matter to be admitted as the insurer had access to the report and it had been provided to other expert witnesses; she allowed the insurer’s IE psychiatrist to testify to matters not contained in the report, while giving the claimant’s expert an opportunity to respond by way of reply evidence; and she restricted the claimant’s catastrophic impairment chiropractor to limiting his testimony to matters pertaining to the spine and musculoskeletal system only.