E.W. v. Primmum Insurance Company (16-003891)

The claimant sought a declaration of catastrophic impairment due to a GCS score less than 9. He was involved in a single vehicle accident and sustained serious physical injuries. His GCS at the scene of the accident was 13, and his GCS upon arrival at the hospital was 15. The only point at which the claimant’s GCS score fell below 9 was when he was intubated in preparation for surgery on his legs. Adjudicator Flude concluded that the sub-9 GCS score was not due to a brain injury or brain impairment, but was instead the result of anaesthesia used for the surgery to the claimant’s legs. He held that without the claimant demonstrating that he suffered a brain injury, he had not suffered a catastrophic impairment.

Applicant v. Jevco Insurance Company (16-002000)

The claimant was involved in a serious accident and had sustained ongoing physical, psychological, and cognitive impairments. He had returned to doing some work on a part-time basis, but was unable to engage in full time work or retraining. Adjudicator Truong held that the claimant was entitled to post 104-week IRBs based on a holistic analysis of the claimant’s post-accident abilities and impairments. It was also noted that the claimant had been approved for CPP Disability Benefits. In terms of the catastrophic impairment, Adjudicator Truong determined that the claimant suffered a combined 56 percent whole person impairment, which qualified as a catastrophic impairment. The difference of opinion between the parties had been based on whether it was appropriate to combine the impairment rating for mental status impairment rating under Chapter 4 of the AMA Guides with the mental and behavioural impairment rating from Chapter 14 of the AMA Guides, or whether doing so amounted to “overcounting”. Adjudicator Truong held that it was appropriate to combine the ratings from both Chapters 4 and 14 in this case, because the claimant had suffered a cerebral impairment (which was counted under Chapter 4), and a psychological impairment (which was counted under Chapter 14). In terms of the medical benefits claimed, Adjudicator Truong held that the claimant had not submitted sufficient evidence to prove that the claims were reasonable and necessary.

Applicant v. Wawanesa Mutual Insurance Company (16-000004)

The claimant sought a declaration of catastrophic impairment due to a Class 4 marked impairment. She had sustained soft tissue injuries and a mild concussion in the accident. Adjudicator Sapin concluded that the claimant suffered a Class 4 marked impairment in the functional category of “adaptation”. Adjudicator Sapin heard extensive evidence on the claimant’s pre-accident and post-accident life from the claimant, the claimant’s husband, and medical assessors. She concluded that the claimant suffered impairments in adaptation due to her inability to cope with household chores, leaving the home, and social situations. Although not necessary to address, Adjudicator Sapin was critical of the claimant’s and insurer’s assessors’ choice of whole person impairment related to the psychological impairment. She wrote that it was inappropriate for the claimant’s assessor to have simply picked the impairment rating at the highest end of the range in the AMA Guides, and that the insurer’s assessor had failed to consider the totality of testing when assigning an impairment rating.

Applicant v. Cumis General Insurance Company (16-003144)

The claimant sought a catastrophic designation. The insurer requested five IEs. The claimant agreed to attend three, and did not attend two because she felt the remaining assessments were excessive and unreasonable. On the basis of refusing to attend the remaining IEs, the insurer designated the applicant non-CAT. The claimant filed an application for arbitration. The insurer sought to preclude a hearing due to the claimant’s non-attendance at an IE. The Tribunal denied the insurer’s motion and determined the outstanding IEs were not reasonable; the matter was set down for a hearing. On reconsideration, Executive Chair Lamoureux ruled that although the insurer may want the remaining IE, it is not one it is entitled to have by virtue of the assessment being unreasonable. The appeal was dismissed.

Applicant v. Gore Mutual Insurance Company (16-001305)

The claimant applied for a CAT determination based on GCS. The insurer denied the determination based on a paper review of a neurologist. Adjudicator Bickley reviewed the medical evidence, which included two ambulance call reports both showing GCS scores of 15. However, during the course of hospitalization, the claimant scored GCS scores of 7, 8, and 9 at various hours. The insurer argued the sub-9 scores were due to medication and intubation and not a reflection of a brain injury. Adjudicator Bickley concluded the claimant’s diagnosed concussion constituted a brain impairment, which resulted in a subsequent intubation, which caused a sub-9 GCS. Relying on the Ontario Court of Appeal decision in Liu v 1226071 Ontario Inc., it was concluded the claimant sustained a catastrophic impairment, since scores of 9 or less were recorded in a reasonable time following the accident.

Applicant v. Peel Mutual Insurance Company (16-000013)

The claimant was involved in an MVA wherein she suffered, among other things, a mild traumatic brain injury. She had not returned to work following the MVA. The claimant sought a catastrophic designation asserting she met the 55% threshold whole person impairment rating. The insurer commissioned IE reports in which it was found she had a 40% WPI. Adjudicator Susan Sapin concluded that the claimant’s impairments equated to a 51% WPI and was therefore not CAT.

P.L.F.R. v. Intact Insurance Company (16-000145)

As a result of the accident, the claimant suffered GCS scores in the range of 12 to below 9 and sought an order that her impairment was catastrophic. The insurer argued that the GCS scores below 9 were not caused by a brain impairment. Adjudicator Flude concluded that the SABS did not require ongoing neurologic impairment to qualify for a catastrophic impairment. Adjudicator Flude accepted evidence that a GCS score from an intubated patient is reliable, and that the claimant’s blood loss would have resulted in decreased brain function, which was sufficient to meet the “brain impairment” requirement.