Category: Catastrophic Impairment

Bernard v. Unica Insurance Inc. (20-007082)

The claimant sought catastrophic impairment designation, as well as entitlement to non earner benefits, attendant care benefits, and housekeeping benefits. The claimant, who had a pre-existing history of ADHD and Asperger’s syndrome, suffered a comminuted fracture of his left tibia/fibula when he was struck by a car while riding his bicycle. The claimant underwent two surgeries, and suffered from ongoing pain and functional impairment. The parties agreed that from a physical perspective, the claimant’s injuries were significant, permanent impairments. The insurer’s IE assessors concluded that the claimant suffered a 44% WPI. The parties disagreed as to whether the claimant suffered impairments from a psychological perspective that met the criteria for a 55% WPI. Based on the 44% WPI, the claimant would require a further 19% WPI in order to meet the threshold established in the Combined Values Chart. Adjudicator Grant found that the evidence fell short of meeting the requirements to establish same. Notably, the family doctor records were largely silent with any notations that would support complaints or recommendations for psychological-based treatment or medication. Adjudicator Grant accepted that the claimant had established entitlement to NEBs, as his physical injuries significantly limited his ability to engage in almost all aspects of his activities of daily living. Adjudicator Grant found that attendant care services were not reasonable and necessary, and that the claimant was not entitled to housekeeping benefits as he was not found CAT.

Kalk v. Intact Insurance Company (20-002839)

The claimant sought catastrophic impairment designation, as well as entitlement to attendant care benefits and housekeeping benefits. The 24 year old claimant suffered numerous fractures as a result of a head-on collision, and required multiple surgeries and nearly two months in hospitals and in-patient rehabilitation. Vice Chair Shapiro found that the claimant was catastrophically impaired under Criterion 7, accepting that her combined physical impairments (49%) and psychological impairments (20%) produced a 59% WPI rating, which surpassed the Schedule’s 55% threshold. Vice Chair Shapiro accepted the claimant’s Form 1 in the amount of $1,667.10 per month, but noted that it struck him as “excessive”, and encouraged the parties to provide the claimant with occupational therapy assistance on further strategies to complete attendant care tasks herself, rather than requiring indefinite assistance. Vice Chair Shapiro further found that housekeeping benefits were payable at the rate of up to $100 per week.

G.P. v. Wawanesa Mutual Insurance Company (18-010583)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, the cost of CAT assessments, and various medical benefits. Vice Chair Lester found that the claimant suffered a catastrophic impairment due to Class 4 Marked Impairments in both adaptation, and concentration, persistence, and pace. The claimant suffered from chronic pain as a result of a minor accident, which deteriorated into somatic symptom disorder with predominant pain and major depressive disorder. The claimant suffered from panic attacks once to twice per week. She was unable to deal with stressful circumstances, had not returned to work as a PSW, and became emotional and overwhelmed by minor things. The claimant was also found to meet the post-104 week IRB test. The only jobs the claimant was suited for were PSW work and an office manager role. The insurer did not have any IEs addressing post-104 week IRBs because it had terminated IRBs within the first 104 weeks. Notably, the insurer’s CAT assessments noted Class 3 Moderate Impairments in social functioning, which was relevant for the claimant’s ability to communicate effectively and ability to get along with others, and found a Class 3 Moderate Impairment in concentration, persistence, and pace, which was relevant to the claimant’s ability to sustain focused attention in a work setting. All of these conclusions supported the determination that the claimant suffered a complete inability to engage in work for which she was suited. The $26,971.50 for CAT assessments, $13,566.81 for a chronic pain program, $2,200 for a chronic pain assessment, and $1,808 for an FAE were awarded due to the insurer’s failure to comply with section 38(8). The denials did not provide adequate medical reasons for the denial, and referred the claimant to read other documents. Vice Chair Lester was critical of the insurer’s reason that something was “excessive” without providing any detail. Finally, Vice Chair Lester granted a special award of 30 percent on the awarded IRBs and treatment plans based on the insurer’s decision to “blindly follow” the IE assessor opinions without considering other evidence. The claimant suffered financial hardships as a result of the denials, including the need to apply for OW, borrow money from her family, and cut back on her diet.

Islam v. Toronto Transit Commission Insurance Company (20-014052)

The claimant applied to the LAT for a catastrophic impairment designation. Vice Chair Flude concluded that the claimant did not meet the definition, as she did not have a combined physical and mental impairment exceeding 55 percent WPI , and did not suffer at least one Class 4 Marked Impairment. The claimant’s assessor wrote that the claimant had Class 4 Marked Impairments in all four spheres of function and had a combined 53 percent WPI. Vice Chair Flude found that the claimant’s recovery did not support those conclusions. The claimant was able to return to her studies at Humber and graduate three years after the accident with a B average; she had returned to working out at a modified level; she tolerated a long commute from home to school; she started at Ryerson in 2020 just as COVID-19 hit; she worked two summer jobs while in school – one at Tim Horton’s and one as a camp counsellor; and she continued to socialize when her studies allowed it. The claimant’s psychological assessor ignored most of this objective evidence. Vice Chair Flude preferred the IE assessor’s opinion that the claimant suffered (at most) Class 2 Mild Impairments in each of the four spheres of function, which was equivalent to a 10 percent WPI. Regarding physical impairments, Vice Chair Flude did not accept that the claimant suffered neurological impairments, as the immediate post-accident records did not suggest any loss of consciousness, dizziness, blurring, amnesia, or other concussion-type symptoms. The 15 percent WPI assigned by the claimant’s assessor was rejected. The overall WPI accepted by Vice Chair Flude was 10 percent for emotional and behavioural, and 16 percent WPI for physical impairment, which did not combine to 55 percent WPI. The cost of CAT assessments totaling $2,400 was awarded, as it was reasonable for the claimant to investigate whether she suffered a catastrophic impairment. Vice Chair Flude also noted that the denial did not include proper medical reasons, contrary to section 38(8).

Tanner v. Certas Direct (21-000564)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, and payment of various medical benefits including partially approved CAT assessments. Adjudicator Reilly denied all claims and dismissed the application. With respect to the catastrophic impairment, Adjudicator Reilly found a maximum combined WPI of 32 percent. She found the claimant’s assessors attributed excessive impairment percentages. She found no evidence of right shoulder impairment and found lumbar spine impairment rated too high. She found the claimant’s left wrist and shoulder impairments ought to have been combined before arriving at the total WPI, rather than rating each separately. She found the rating of 18 percent WPI for grip strength to be questionable as OT and FAE assessments found normal grip strength. In terms of neurological ratings, Adjudicator Reilly found no evidence to support a rating for sexual dysfunction or hearing, and the rating for disturbances of consciousness and awareness ought to have been deferred to a psychiatrist. She found a total of 32 percent WPI for orthopaedic and neurological impairment, which did not meet Criterion 6. In terms of mental or behavioural impairment, Adjudicator Reilly did not accept the claimant’s expert’s rating of 20 percent WPI, as the facts described by the assessor were not supported by the evidence (i.e. ability to travel, ability to drive, ability to work part-time). Adjudicator Reilly preferred a maximum WPI of 10 percent for mental and behavioural impairment based on the IE assessor’s opinion. The combined physical and mental impairment did not exceed 55 percent, and the catastrophic impairment designation was dismissed. Adjudicator Reilly concluded that the claimant did not meet the post-104 week IRB test. The claimant had returned to work in a part-time fashion on multiple occasions after the accident. Surveillance showed him with greater physical abilities than reported to his assessors. The claimant’s job was terminated in 2021 because he did not want to return to the office full-time, and the management dismissed him. The claim for further CAT assessments was dismissed, as the claimant did not advance evidence to indicate why the denied amounts were reasonable and necessary. The claim for assistive devices was dismissed because they were not submitted on OCF-18s, and the claimant had exhausted his medical benefits limits.

Gore v. Rusk (2022 ONSC 2893)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. The Court dismissed the appeal, holding that both appeals were on matters of mixed fact and law and that there were no extricable legal error that had been demonstrated. The findings regarding each WPI allocation were findings of fact, as was the issue of whether combining certain ratings would entail double-counting or overlap. The Court also dismissed the argument that the reconsideration process was unfair because only one of the two adjudicators that heard the original matter conducted the reconsideration. The Court held that the Tribunal had broad authority to conduct reconsiderations, and that any adjudicator could hear the reconsideration, including the adjudicator or adjudicators hearing the original matter, or an entirely new adjudicator.

Rao v. Wawanesa Mutual Insurance Co. (20-001654)

The claimant applied to the LAT seeking CAT determination under Criteria 8 and entitlement to post-104 IRBs and various medical/rehabilitation benefits. Causation was an issue at the hearing. The subject motor vehicle accident occurred on April 4, 2016. At the time of the subject accident, the claimant was still recovering from an incident in August 2015, which left her with a concussion and unable to work for 8 months. The subject accident occurred while the claimant was on her way to work for the first time since August 2015. The “but for” test was applied to the issue of causation. Vice-Chair Shapiro found that while the subject rear-end collision was light, it did affect the claimant, stating “while there is a dispute of what the actual physical impact the accident had on her brain and cognitive function, I accept that it was an emotionally traumatic event.” Vice-Chair Shapiro preferred the insurer’s CAT opinions, finding that the claimant’s CAT report lacked meaningful validity testing and was generally inconsistent with the records of treating practitioners and evidence of functional abilities. Vice-Chair Shapiro found that the claimant likely sustained a mild second concussion in the subject accident, which resolved on its own. The testimony of the claimant’s treating neurologist was given less weight as she was unaware of the subject accident until she was summonsed to be a witness at a hearing, and therefore her testimony about the accident causing the claimant’s current complaints was inconsistent with her medical notes. The claimant was found not to be CAT and was not entitled to post-104 IRBs. She was entitled to driver’s therapy, plus interest if incurred, but not to the other medical benefits in dispute.

Ifraimov v. Wawanesa Insurance (19-014493)

The claimant was involved in a serious motor vehicle accident in October 2016, in which he sustained fractures to both arms and his left leg. He applied to the LAT seeking CAT determination under Criteria 7. The claimant’s CAT assessors opined that the claimant had a combined WPI of 60%, and the insurer’s assessors opined the claimant had a combined WPI of 34%. Adjudicator Gosio held that the relevant time for determining the impairment of the claimant is the time of the hearing and found that it was appropriate to assess the claimant’s condition following knee surgery, which occurred after the initial CAT reports were completed. In this regard, Adjudicator Gosio preferred the opinion of the insurer’s orthopaedic assessor, which addressed the change in status post-surgery at the time of the hearing. After analyzing competing opinions on WPI percentages related to fractures, scars, cane use, and other physical impairments, as well as mental/behavioural impairments, Adjudicator Gosio found that the claimant had a 46% WPI and had not sustained a catastrophic impairment as defined by the SABS.

Adams v. Federated Insurance Company of Canada (20-009293)

The claimant applied to the LAT seeking CAT determination as a result of a traumatic brain injury (Category 4). The parties agreed that the claimant met the criterion under s. 3.1(1)4.i of the SABS. The parties disagreed as to whether she also met the necessary criterion under s. 3.1(1)4.ii. Vice-Chair Lester found that the claimant’s assessors took an overly specific view of the GOSE questionnaire and answered each question contemplating every intricate detail concerning the claimant. Vice-Chair Lester agreed with the insurer’s assessors, who took a more generalized approach to the GOSE questionnaire and answered the questions with a view that the claimant’s actions did not need to be completed perfectly and focused on whether the claimant was capable of completing the listed tasks and was capable of reacting appropriately when errors were made. Vice-Chair Lester further found that the GOSE questionnaire must be completed by a physician or neuropsychologist. The claimant did not meet the definition for catastrophic impairment under the SABS.

Bishop v. TD General Insurance Company (20-006964)

The claimant sought a catastrophic impairment as a result of chronic pain and psychological impairment following an accident. Because the accident was after June 1, 2016, the claimant was required to prove that she suffered three Class 4 Marked Impairments. The insurer argued that the claimant’s chronic pain pre-existed the accident, and was not worsened by the accident. Adjudicator Hines accepted the opinion of the claimant’s expert psychologist, Dr. Levitt, and found that the claimant suffered Class 4 Marked Impairments in all four spheres of function. Adjudicator Hines also found that the accident was a necessary cause of the claimant’s worsening psychological impairments. Since the accident, the claimant had been unable to return to work, her relationship with her partner had deteriorated, she rarely socialized due to anxiety, she experienced outbursts with family members and strangers, and she struggled to maintain a daily routine. The claimant’s reporting was credible, and the inconsistencies were minor. Adjudicator Hines rejected the conclusion of the IE psychiatrist, Dr. Ali, because the assessment was less than one hour and used no testing or collateral interviews; she relied on an occupational therapy assessment that was geared towards people with Alzheimer’s; she did not find the claimant’s self-reporting valid yet did not comment on the claimant’s credibility; and her conclusions were inconsistent with her post-104 IRB conclusions. A special award was claimed by the claimant, but not awarded due to insufficient evidence to support that the insurer’s conduct was unreasonable.