Category: Catastrophic Impairment

Powell v. Aviva Insurance Company of Canada (19-012928)

The claimant sought a catastrophic impairment designation, entitlement to ACBs, and medical benefits for occupational therapy and vision therapy. Adjudicator Grieves found that the claimant suffered a Class 4 Marked Impairment in adaptation, and therefore met the catastrophic impairment definition. The accident was a relatively minor rear-end collision, but resulted in the claimant suffering from a mild TBI, and psychological injuries. She continued to work after the accident, but only on a part-time basis. She lacked motivation to engage in daily routines, showered only once per week, had trouble preparing meals, and the claimant’s home was scattered with garbage and cat feces. The claimant experienced multiple periods where she needed to live with her mother because she could not manage independent living. Adjudicator Grieves found the claimant was entitled to ACBs of $644.63 per month for assistance with meal preparation and bathroom and bedroom hygiene. She was critical of the insurer’s assessor, who considered only the claimant’s physical abilities and failed to consider the claimant’s psychological barriers. Medical benefits for aquatherapy was dismissed as it was duplicative, and the claimant already had access to a pool and personal trainer. A treatment plan for a professional organizer and a treatment plan for vision therapy was awarded.

S.V. v. Wawanesa Insurance (18-009702 and 20-001009)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment, IRBs, ACBs, and various medical benefits. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment as a result of the accident. While the claimant did sustain a psychological impairment in the accident, he sustained only Class 2 Mild Impairments or Class 3 Moderate Impairments due to the accident. The claimant maintained his social contacts, and he communicated with assessors in an effective and pleasant manner; there was no evidence linking the claimant’s psychological impairments with his ability to perform activities of daily living; and the claimant remained independent with sustaining an ordinary routine without supervision, and used his judgment to make simple decisions. Adjudicator Hines was critical of the claimant’s experts, as they did not review the claimant’s pre-accident medical records which showed significant pre-accident health issues, and relied mainly on the claimant’s self-reporting. The claim was IRBs was denied, as the claimant failed to prove how his psychological impairments affected his ability to work. He also failed to submit financial records in support of a loss of income. The claim for ACBs was denied as the claimant’s Form 1 assessor relied upon the claimant’s self-reporting and she did not review the pre-accident medical records, nor did she understand the extent of the claimant’s pre-accident health issues. The medical benefits were denied because the claimant failed to prove the connection between the proposed treatment and the accident.

Teutloff v. Wawanesa Mutual Insurance Company (19-010851)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment. Adjudicator Grieves held that the claimant suffered from Class 4 Marked Impairments in both concentration, and adaptation, and therefor met the pre-2016 catastrophic impairment definition. The claimant suffered from Adjustment Disorder with Mixed Anxiety and Depression, and Somatic Symptom Disorder due to the accident. Prior to the accident, the claimant operated a cleaning business 13 hours per day. She had not returned to work following the accident, and her husband was required to take over all household financial responsibilities post-accident. The claimant did not attend church as often, or volunteer or socialize with friends post-accident. She began abusing alcohol following the accident, and obtained a prescription for morphine in Costa Rica (her birth country). During assessments, the claimant was unable to persist, and she fell asleep in one assessment, and vomited twice in another. Although validity testing showed poor scores, Adjudicator Grieves accepted that the results likely related to diminished engagement due to somatic focus and somatic distress.

Kellerman-Bernard v. Unica Insurance Inc. (20-002064)

In 2016, the claimant’s child was involved in a motor vehicle accident. The claimant, who was not involved in the accident and did not witness the accident, sought accident benefits in 2016 based on alleged psychological and mental injuries as a result of her child’s accident. In 2018, the claimant submitted an application for determination of catastrophic impairment. A preliminary issues hearing was held on the following issue: Can an applicant not involved in an accident meet the criteria for CAT impairment as defined by the SABS? The insurer did not dispute that the claimant was an insured person under the policy and was eligible to claim accident benefits, but submitted that the claimant was not entitled to apply for CAT because she was not involved in the accident, and thus her injuries were not caused by an accident as defined in the SABS and she did not meet the criteria for CAT impairment. The claimant submitted that she was an insured person under the SABS who sustained psychological and mental injuries caused by the accident for which she was eligible to apply for CAT designation and CAT benefits. The claimant submitted that there was no difference in her injuries being “caused by an accident” or “as a result of an accident” and that there is no requirement in the SABS for an insured person to have been involved directly in an accident to apply for CAT impairment designation. Vice-Chair Farlam found that the claimant did not meet the criteria for CAT in the SABS because her alleged injuries were not “caused by an accident.” Vice-Chair Farlam held that the phrase “caused by an accident” was purposely used in the SABS to restrict entitlement to CAT to persons who directly suffer injuries caused by an accident because the legislature has chosen to treat access to enhanced CAT benefits more restrictively. Vice-Chair Farlam found that because the claimant did not witness the accident and was not directly involved in the accident, she was unable to meet the threshold test for CAT designation required by section 3(2). The claim for CAT designation was dismissed.

Lockyear v. Wawanesa Mutual Insurance Company (2022 ONSC 94)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment due to a GCS score less than 9. The primary grounds for appeal were the Tribunal’s refusal to admit video evidence of the accident and treatment by EMS, and the Tribunal’s decision to allow an IE expert to comment on matters outside of the written report. The Court held that the Tribunal breached the claimant’s right to procedural fairness on both grounds. First, the Tribunal ought to have allowed the video evidence to be submitted as it was relevant and could be probative of the claimant’s GCS score immediately after the accident. Second, the Tribunal ought to have allowed the claimant relief after the IE expert gave opinion evidence not contained in his written report. The Tribunal could have adjourned for a short period to allow counsel to prepare for cross-examination. The Tribunal also could have allowed the claimant to recall his own expert to give reply evidence. The Tribunal’s refusal to allow either was procedurally unfair to the claimant because it denied him an equal opportunity to address the new evidence. The matter was returned to the Tribunal for a new hearing before a new adjudicator.

Patchett v. Optimum Insurance Company (2021 ONSC 8466)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment under the Spinal Cord Independence Measure III (“SCIM”), also known as Criteria 2(iii). The Court upheld the Tribunal’s decision, concluding that Adjudicator Boyce was correct in law to dismiss the catastrophic impairment application because the claimant did not suffer a permanent alteration of function in her leg. The Court agreed that a temporary alteration in leg function did not satisfy the section 2(iii) catastrophic impairment definition. The Court also noted that the Tribunal’s decision was based on an agreed statement of fact that the claimant’s SCIM score had improved above 5, which necessarily implied that the claimant’s leg impairment (measured 10 months earlier as a 4 under the SCIM) was not permanent.

Abdi v. TD General Insurance Company (19-008845)

The claimant sought a determination that he suffered a catastrophic impairment under the Extended Glasgow Outcome Scale (GOS-E). The parties agreed that the claimant sustained a mild traumatic brain injury and a fractured pelvis as a result of the accident, and agreed that the brain injury was evidenced on medical imaging. To receive a catastrophic impairment designation, the claimant had to prove either: (1) an Upper Severe Disability or Lower Severe Disability six months or more after the accident; or (2) a Lower Moderate Disability one year or more after the accident. The parties disagreed on the appropriate timing of the GOS-E assessment, and whether non-brain injury disabilities were to be included in the GOS-E assessment. Adjudicator Neilson accepted the insurer’s arguments that the GOS-E could be completed at any time after six months or one year (respectively), and did not need to be taken precisely at the six month or one year anniversary. Adjudicator Neilson also accepted the insurer’s argument that the GOS-E assessment required the completing physician to parse out the physical and psychological injuries and impairments not caused by the brain injury in order to properly complete the GOS-E rating. Adjudicator Neilson also found that the claimant’s experts did not completed the GOS-E assessment properly in that: (1) parts of the assessment were completed by an occupational therapist rather than a physician; and (2) the questionnaire that was administered was an abbreviated version rather than the full version. Adjudicator Neilson concluded that the claimant did not suffer a catastrophic impairment under the GOS-E criteria.

Howe v. The Commonwell Mutual Insurance Company (19-010824)

The claimant sought a determination that she suffered a catastrophic impairment as a result of a 2012 accident, due to psychological impairment, and claimed a special award. She was 15 years old at the time of the accident and had been diagnosed with Autism Spectrum Disorder prior to the accident. The insurer argued that the claimant’s post-accident psychological and emotional impairments were not caused by the accident, and were related to her pre-existing condition. Adjudicator Paluch agreed with the insurer and dismissed the application. He found that the accident was not the main cause of the claimant’s psychological impairments, and that the claimant had pervasive developmental issues, severe learning disability, memory problems, depression, anxiety, and social withdrawal well prior to the accident. These impairments would have continued regardless of the accident. He accepted the opinion of the insurer’s psychiatrist that the accident caused, at most, a Class 2 Mild Impairment in adaptation. He rejected the claimant’s expert’s opinion that the claimant suffered from a Class 4 Marked Impairment in adaptation. The claim for a special award was also dismissed because no benefits were in dispute.

Ratnam v. Primmum Insurance Company (19-006706)

The claimant sought a determination that he suffered a catastrophic impairment due to a 2014 accident. He had already been found to suffer a catastrophic impairment from a 2011 accident. The insurer argued that the 2014 accident did not cause an exacerbation of the claimant’s impairments, and argued that the claimant was not credible. Vice Chair Flude found that the claimant suffered a catastrophic impairment from the 2014 accident due to Class 4 Marked Impairments in social functioning; concentration, persistence, and pace; and deterioration or decompensation in work or work-like settings. Vice Chair Flude acknowledged that the claimant appeared to be tailoring evidence as a deliberate attempt to frustrate the insurer’s psychological assessor. Nevertheless, there was additional evidence that supported the claimant’s position. The claimant’s experts explained that the claimant had a severe deterioration in function after the 2014 accident, even though he was suffering impairments from the earlier accident. The claimant spent a large part of his day in bed and rarely interacted with his spouse or children. He gave up on attempting to find employment because he was overwhelmed by his mental health issues. Vice Chair Flude also addressed the insurer’s causation argument, holding that the 2014 accident was a necessary cause of the claimant’s decline in mental health.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment and that he was not entitled to IRBs. With regard to the catastrophic impairment, he argued that the Tribunal erred in not counting 3 percent WPI for medication and 18 percent WPI for a potential future operation. Adjudicator Flude rejected both grounds of reconsideration. As to the medications, the Tribunal reiterated that not all medications used by the claimant were related to the accident, and that the addition of 3 percent WPI was not for the possible future impact of extended drug use – it was for the manner in which the drugs may mask the person’s true impairment at the time of the assessment. As to the 18 percent for future surgery, the Adjudicator Flude found that the SABS and the AMA Guides did not allow for the counting of a potential future procedure. The person must be assessed at the time he or she is before the Tribunal. Finally, regarding the denial of IRBs, Adjudicator Flude found no error in the conclusion that the claimant failed to prove that he was self-employed at the time of the accident.