Category: Catastrophic Impairment

Z.R. v. Certas Direct Insurance Company (18-001468)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under section 3.1(1)(5)(i), which requires positive findings of a traumatic brain injury on a CAT scan, MRI, or other medically recognized brain diagnostic technology. Adjudicator Gosio rejected the reconsideration. The claimant did not make any arguments regarding the French version of the SABS at the original hearing, and was therefore barred from advancing such argument on reconsideration. Adjudicator Gosio also rejected the argument that updated records should be obtained on behalf of the claimant, and that a new hearing should be held regarding the dispute. Adjudicator Gosio agreed with the Tribunal’s decision that the use of the word “with” in section 3.1(1)(5)(i) denotes a temporal association between a person’s hospital admission and a positive finding on medical imaging.

J.T. v. Primmum Insurance Company (18-009043)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment, and that his injuries fell within the Minor Injury Guideline. He argued that the Tribunal acted outside of its jurisdiction or violated rules of procedural fairness. Vice Chair Maedel found no error on the part of the Tribunal. The adjudicator considered all the evidence before the Tribunal. There were no expert reports in support of the claimant’s position that he sustained a 55 percent Whole Person Impairment. The Tribunal was entitled to accept the position of the insurer’s assessors that the claimant did not suffer a catastrophic impairment, and that the claimant did not suffer from a pre-existing condition that would prevent maximal recovery under the MIG.

G.T. v. The Guarantee Company of North America (18-003334)

The insurer sought reconsideration of a decision in which the Tribunal found that the claimant had sustained a catastrophic impairment based on Criteria 7. The Tribunal concluded that the claimant had sustained 54% WPI. After rounding up, as permitted by the Guides, the claimant met the threshold of 55%. The insurer submitted that the Tribunal made errors of law and/or fact in assigning three of the WPI ratings (5% for the left leg disfigurement, 9% for the sleep disorder, and 3% for a discretionary increase). Adjudicator Grieves dismissed the insurer’s request for reconsideration, as the Tribunal carefully reviewed each sphere of possible impairment and provided sufficient explanations for accepting or rejecting evidence. She went on to note that while the insurer may disagree with the Tribunal’s assessment of the evidence, there was no basis to interfere with the decision.

Patchett v. Optimum Insurance Company (19-008902)

The claimant sought reconsideration of a LAT decision denying that she met the catastrophic impairment definition because her accident-related impairment did not result in a permanent mobility score on the Spinal Cord Independence Measure III (“SCIM”). Adjudicator Boyce dismissed the claimant’s request for reconsideration. The issue in this case was whether the claimant’s mobility impairment was temporary. Adjudicator Boyce held that the claimant’s mobility improved from requiring two crutches to a single leg crutch, and then progressed to using a cane. He held that the claimant did not meet the SCIM mobility score as her disability was not permanent, and that the legislative intent of SABS criteria 2 was to cover permanent injuries. Adjudicator Boyce noted that had the Legislature intended for the impairment to be measured by a specific moment in time and not permanent, it would have done so.

Z.R. v. Gore Mutual Insurance (18-000017)

The insurer sought reconsideration of the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. Adjudicator Hines dismissed the reconsideration. She accepted that the Tribunal ought not to have counted 3 percent WPI for medication use because the medication did not have the effect of cancelling out the claimant’s sleep issues, depression or chronic pain. The AMA Guides requires that medication mask an impairment that could not otherwise be rated in order to count 3 percent WPI for medication. Adjudicator Hines rejected the insurer’s arguments regarding 2 percent WPI for sleep disorder, 10 percent WPI for occipital neuralgia, and 29 percent WPI for mental and behavioural disorder. Adjudicator Hines also rejected the insurer’s arguments regarding NEBs, holding that the Tribunal applied the correct test and that the Tribunal provided sufficient reasons to allow the parties to understand why it arrived at its result.

H.V. v. Certas Direct Insurance Company (18-008349)

The claimant sought a catastrophic impairment based on a Class 4 Marked Impairment in adaptation. Vice Chair Marzinotto rejected the claimant’s position, and concluded that he did not suffer a catastrophic impairment. She began by noting that a comparison of the claimant pre-accident and post-accident over a long period should be considered, rather than the “”snap shot”” of the claimant’s functioning at the time of the OCF-19. At the time of the claimant’s catastrophic impairment assessments, he had been employed at a coffee shop for approximately six weeks. The occupational therapist completing the report in support of the OCF-19 required the claimant to perform an assessment that was confusing and not based in reality. The occupational therapist also did not use an interpreter when performing the simulated exercise. Vice Chair Marzinotto was critical of the lack of standard comparison between the simulation and the real work-life scenario. There was also no validity testing. The OT’s opinion regarding the claimant’s abilities was rejected. Vice Chair Marzinotto found it unrealistic that the claimant would have remained employed for 1.5 years at the coffee shop if his functioning was as poor as alleged. It was also noted that the claimant’s employer had no knowledge of the alleged impairments and the claimant was not being given modified tasks. No evidence was called from the employer or any co-workers about the claimant’s work performance. From the time of the accident to the date of the LAT hearing, the claimant’s employment followed an upward trajectory. Vice Chair Marzinotto accepted the opinion of the insurer’s psychologist that the claimant’s impairment was at most a Class 3 Moderate Impairment (and likely on the low end of that range). Aside from the claimant’s work status, he was independent with self-care, shared responsibility with his partner for groceries, shared laundry duties, performed housekeeping, and maintained a regular sleep schedule.

H.O. v. Aviva General Insurance (19-002362)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. In particular, he challenged the Tribunal’s conclusion regarding a 40 percent WPI for cauda equina-like syndrome, and argued that it should have applied. He argued that the Tribunal did not allow procedural fairness when it limited his expert’s answers on re-examination, and that the Tribunal erred in law regarding its conclusions. Vice Chair Flude rejected the reconsideration. In terms of the re-examination, he held that the claimant was improperly attempting to split its case by asking questions about matters that were not covered in direct examination. The claimant was obligated to adduce all evidence he intended to rely upon in the examination in chief. Additionally, the claimant’s expert was not entitled to expound upon answers in cross-examination where such answers were not responsive to the cross-examination. Regarding the alleged legal error, Vice Chair Flude concluded that his findings of fact and resulting legal conclusions were sound and based on the medical evidence before the Tribunal. He noted that neither the claimant’s expert nor the insurer’s expert found significant loss of bilateral function in the lower extremities. The request for reconsideration was dismissed.

Z.K. v. Allstate Insurance Company Canada (17-006929)

The claimant sought entitlement to a catastrophic impairment designation, further chiropractic treatment, and the cost of denied neuropsychological and triage CAT assessments. Adjudicator Johal accepted that the claimant suffered three Class 4 marked impairments in each of activities of daily living; concentration, persistence, and pace; and adaptation in work or work-like settings. Prior to the accident the claimant ran a business for about twelve years, and became a licenced mortgage agent two years before the accident. He was very outgoing and social, hosted parties, and visited friends. He was healthy both physically and mentally and had no pre-accident conditions. After the accident, which was relatively minor, the claimant developed back and neck pain, and headaches. His mental functioning declined. He lost over 30 pounds, had no appetite, had poor short term memory, and needed assistance with basic personal care tasks. The claimant’s family believed he was depressed, and he reported being in frequent pain. He no longer entertained or visited friends. He did not return to work, and he rarely drove. The claimant’s neuropsychological assessor diagnosed the claimant with a severe pain disorder and moderate depressive disorder. She concluded that the claimant suffered Class 4 marked impairments in the above-noted spheres. The claimant’s psychological assessor made similar conclusions and conducted various testing to rule out malingering and feigning. Adjudicator Johal preferred the evidence of the claimant’s assessors over the IE assessors, who approached their role as a “detective” rather than neuropsychologist. The IE assessor also used testing methods that were not well peer-reviewed or had no validity measures. Adjudicator Johal denied the disputed chiropractic treatment because it was completed by a chiropractor, but largely proposed counselling and educational services, which were outside of the chiropractor’s scope of practice. The neuropsychological CAT assessment was approved, despite no evidence of head injury. Adjudicator Johal wrote that the request for an assessment was to show that there is a reasonable possibility that the claimant has the condition that is being investigated. The claimant did not need to show or prove that he had the condition in order for an assessment to be deemed reasonable and necessary. Finally, the triage CAT assessment was denied as there was no evidence presented why it would be required and what assessment of the claimant it would provide.

Patchett v. Optimum Insurance Company (19-008902)

The claimant applied for a catastrophic impairment under Criterion 2(iii) of the new definitions, requiring a SCIM score of five or less on an indoor mobility test. The claimant’s score was below five shortly following the accident when she was recovering from fractures in her extremities. However, the score was above five after a number of months when the IE took place. The claimant argued that the temporary score below five was sufficient for a catastrophic impairment designation. The insurer argued that a permanent score below five was required. Adjudicator Boyce agreed with the insurer that the score below five had to be permanent. Use of a temporary score below five did not meet the Legislature’s intention of providing enhanced benefits only to persons with permanency of impairment.

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

The claimant sought a catastrophic impairment based on a 55 percent impairment, IRBs, housekeeping expenses, and medical benefits. The insurer argued that the claimant’s impairment arose from an earlier workplace accident, and that he was not entitled to any of the claimed benefits or a catastrophic impairment designation. Adjudicator Flude agreed with the insurer and dismissed the claims. He held that the claimant failed to prove that the accident was the cause of his impairments. The primary issue related to tears in the shoulder. Adjudicator Flude held that that tears were a result of the workplace injury, and not the accident. Further, he found that the claimant’s experts wrongly attributed 18 percent WPI for potential future surgery, holding that the SABS did not permit speculative future impairment in the WPI calculation. He also concluded that the three percent WPI for medication was not proper to include because it related to medications for conditions unrelated to the accident. Without those percentages, the claimant’s total WPI was below 55 percent. Adjudicator Flude also concluded that the claimant was not entitled to IRBs because he was not working at the time of the accident. The housekeeping expenses were denied as well. Only after the accident did he re-start his carpentry business. Finally, the claimed medical benefits were denied because they related to treatment for the shoulder, and the claimant also failed to prove that the treatment was providing relief.