Category: Catastrophic Impairment

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.

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.