Category: Catastrophic Impairment

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.

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.