Category: Catastrophic Impairment

H.Y.Z. v. Allstate Canada (18-003942)

The insurer initially accepted that the claimant sustained a catastrophic impairment, but reversed its decision upon receipt of ODSP records detailing similar pre-accident impairments. The claimant argued that the treatment plans submitted during the period while she had access to the catastrophic impairment limits ought to be payable. The insurer argued that because the claimant did not truly suffer a catastrophic impairment, she was not entitled to any medical benefits in excess of the standard limits. Vice Chair Lester held that the claimant was entitled to seek medical benefits in excess of the standard limits for the time period the insurer had advised that she was catastrophically impaired. Vice Chair Lester considered each claimed medical benefit under the reasonable and necessary standard, and awarded the treatment plans for psychological treatment (aside from transportation costs). Further physical therapy was mostly denied as there was no evidence to suggest that the claimant received any benefit from the treatment. No submissions were made regarding occupational therapy or an attendant care assessment. Those claims were also denied.

Yevdokymova v. Economical Insurance (21-000502)

The claimant sought a catastrophic impairment designation and entitlement to various medical benefits and attendant care benefits. The insurer argued that the claimant was barred from disputing entitlement because an earlier hearing regarding NEBs already concluded that the claimant did not suffer the majority of the injuries or impairments allegedly sustained in the accident. The insurer also argued that the claim for ACBs was barred due to the claimant’s failure to participate in an IE, as the claimant had put conditions on her attendance, including the presence of her own occupational therapist. In response, the claimant argued that the current dispute was for different benefits, and as such, the earlier decision on NEBs was irrelevant. The claimant also argued that she ought to be permitted to have her own occupational therapist observe the in-home assessment requested by the insurer. Vice Chair Flude agreed with the insurer and held that the claimant’s current application was barred by res judicata. Although the specific benefits and designation at issue were different than the NEB hearing, the findings of fact in the NEB hearing were so closely related that to allow the claimant’s application to proceed would amount to an abuse of process. Vice Chair Flude also held that the claimant could not impose conditions on her attendance and participation in the requested in-home IE. The insurer met all requirements of section 44 when requesting the IE. As such, the claimant’s failure to participate in the format requested by the insurer triggered section 55. Vice Chair Flude dismissed the dispute in relation to a catastrophic impairment, and stayed the dispute in relation to ACBs until the claimant participated in the in-home IE.

Sahadeo v. Pafco Insurance Company (19-006331)

The claimant sought catastrophic impairment designation under Criterion 7 (53% WPI, rounded to 55%) and/or Criterion 8 (marked impairment in Adaptation) of the SABS, as well as entitlement to various medical benefits. Vice Chair Lester found that the claimant was not catastrophically impaired. With respect to Criterion 8, Vice Chair Lester felt that the claimant suffered a moderate (not marked) impairment in Adaptation. The claimant had no issues completing the tasks assigned during either of the OT assessments, and showed no failures to adapt or decompensate in the face of work-like stressors. The claimant also testified that he was able to take his son to daycare every day, showing no reliability issues with attendance. With respect to Criterion 7, Vice Chair Lester accepted the insurer’s lower WPI rating for psychological impairments, given her determination that the claimant suffered a moderate (not marked) impairment in Adaptation, which brought the WPI down to 37%. Vice Chair Lester accepted that three denied treatment plans for physical treatment were reasonable and necessary (up to the remaining policy limits), emphasizing that pain relief is a legitimate goal of treatment. Vice Chair Lester went on to award the claimant costs in the amount of $500 with respect to counsel for the insurer’s conduct in providing an erroneous opinion on the validity of a summons issued to an IE assessor, which resulted in the assessor not attending the hearing on the date he was scheduled to appear.

Ramnarine v. Aviva General Insurance (20-007108)

The claimant sought catastrophic impairment designation under Criterion 8 (marked impairment in Activities of Daily Living, Social Functioning, and Adaptation), as well as entitlement to Non Earner Benefits and various medical benefits. The claimant had a significant pre-accident medical history for chronic pain, Somatic Symptom Disorder, and Major Depressive Disorder. Adjudicator Hines found that the accident was not a necessary cause of the claimant’s physical and psychological impairments, nor did it result in the functional limitations which formed the basis for the claimant’s application for a CAT determination. Notably, psychological status reports prepared both shortly prior to and shortly after the accident noted very similar impairments and limitations. Given that “not much had changed post-accident”, Adjudicator Hines found that the claimant had not sustained a CAT impairment as a result of the accident, nor was he entitled to NEBs. Adjudicator Hines went on to find that a chronic pain program was reasonable and necessary as there was some exacerbation of his pre-existing chronic pain as a result of the accident. She also found an occupational therapy assessment to be reasonable and necessary to investigate the degree that the claimant required attendant care, if any, as a result of his accident-related impairments.

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.