Category: Catastrophic Impairment

P.S. v. Allstate Insurance (18-012633)

The claimant was seriously injured in a 2013 accident and sought a determination that he suffered a catastrophic impairment due to a combined WPI of 55 percent. He also sought entitlement to three treatment plans for further physiotherapy and psychotherapy. The claimant suffered from chronic pain and abused opioids as a result of his injuries. He also suffered cognitive issues from a traumatic brain injury. The claimant was unable to work as a result of these effects. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment. There was agreement between the parties that the claimant’s physical injuries had a total WPI of 17 percent. The disagreement focused on the neuropsychological impairment, psychological impairment, and equivalent WPI. Adjudicator Hines accepted the claimant’s expert’s opinion that impairment existed under Table 2 of Chapter 4 (neurocognitive), but did not agree with applying the high end of the range (14 percent). She was critical of the executive summary physician applying the WPI rather than the claimant’s neuropsychologist. She accepted the evidence from the neuropsychologist’s expert testimony that she would have given a rating of 12 percent WPI. With regard to psychological impairment, the claimant was diagnosed with major depressive disorder, and somatic symptom disorder. None of the claimant’s assessors or the insurer’s assessors found any Class 4 Marked Impairments. Both assessors agreed that there were Class 3 Moderate Impairments in Activities of Daily Living, and Adaptation. The differences of opinion existed with regard to Social Functioning, and Concentration, Persistence, and Pace. Adjudicator Hines accepted the opinions of the claimant’s expert who rated him Class 3 Moderate Impairment in both of these spheres of function. In order to convert the rating into a WPI, the claimant’s expert argued that a range of 30 to 40 percent WPI was appropriate by using a GAF score of 45 to 50. The insurer’s expert, who found slightly lower impairment in the two disputed spheres of function, opined that the claimant’s GAF was 54 to 56, which he converted into 21 to 24 percent WPI. Adjudicator Hines was critical of the range provided by the claimant’s expert, and noted that despite no findings of Class 4 Marked Impairments, the WPI range was equivalent to such. She was again critical of the claimant’s psychologist leaving it to the executive summary physician to provide the WPI range. She concluded that the appropriate WPI was 29 percent, based on the insurer’s expert’s testimony that all four Class 3 Moderate Impairments would not exceed that number. The total WPI was 48 percent, which was insufficient to be deemed a catastrophic impairment. However, Adjudicator Hines did award all three claimed treatment plans based on the claimant’s ongoing impairments and the coping and relief the treatment provided. The adjudicator noted that the insurer was only responsible for payment on the treatment plans up to the remaining medical benefits limits of $50,000.

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

The self-represented claimant argued that he suffered a catastrophic impairment following a collision in a parking lot. The insurer’s position was that the claimant suffered a minor injury. Adjudicator Manigat concluded that the claimant suffered a minor injury and dismissed the catastrophic impairment determination. No medical evidence was provided by the claimant in support of his position, nor was an expert opinion provided. While an OCF-19 was completed by the family physician, no referral was ever made for further investigation. The IE reports found that the claimant suffered soft tissue injuries and the claimant did not provide any evidence of a pre-existing condition.

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

The minor claimant sought a determination that he suffered a catastrophic impairment as a result of the accident due to traumatic brain injury under the post-2016 definitions. Section 3.1(1)5.i. of the SABS required that a person under 18 years of age be accepted for admission on an in-patient basis to a public hospital with positive findings on a computerized axial tomography scan, MRI, or other medically recognized brain diagnostic technology, indicating intracranial pathology resulting from the accident. The insurer denied that the claimant met the test because the hospital admission was due to a fractured femur rather than brain injury, and the imaging showing intracranial pathology a few months after the claimant was discharged from hospital. Adjudicator Gosio accepted the insurer’s position, holding that the definition required a temporal connection between the imaging and the person being in-patient at the hospital. He reasoned that the changes to the catastrophic impairment definitions were made to make the process more accurate, consistent, and objective, and speed up determinations and reduce dispute costs.

M.L. v. Primmum Insurance Company (17-002915)

The claimant sought a determination that she suffered a catastrophic impairment due to a Class 4 marked impairment due to somatic symptom disorder. The insurer argued that the claimant had made functional improvement and that the impairments described by her assessors were brought on by the stressful nature of assessments. Adjudicator Mazerolle concluded that the claimant suffered Class 4 marked impairments in activities of daily living and adaptation. He accepted that the claimant suffered from somatic symptom disorder as a result of the accident and a minor traumatic brain injury, and that the two resulted in a downward spiralling of her function. He also accepted that the claimant’s psychological condition was potentially permanent. The claimant relied upon the support of her mother to manage day-to-day responsibilities and that she required cueing to conduct many household tasks. Adjudicator Mazerolle concluded that the catastrophic impairment designation was effective as of the date that her OCF-19 was signed, rather than the two-year mark or the date of the accident.

A.L. v. Unica Insurance Inc. (18-008890)

The claimant sought a determination of a catastrophic impairment based on a WPI in excess of 55 percent. He also sought entitlement to ACBs, the denied portion of CAT assessments, and various medical benefits. Adjudicator Lake concluded that the claimant did not suffer a catastrophic impairment. She rejected the claimant’s experts opinions on WPI for mental or behavioural impairments because it relied on opinions from other experts which those experts later retracted. Even if all other WPI were accepted, the claimant would only have a 42 percent WPI. The ACBs claim was dismissed because it was for a period beyond the 104 week mark. Adjudicator Lake agreed with the claimant that CAT assessments were not paid out of the medical benefits limits, and found that six of proposed seven assessments were reasonable. Finally, Adjudicator Lake held that the treatment plans for further physiotherapy were reasonable and necessary, but that the claims for assistive devices, an attendant care assessment, and a two-part neuropsychological examination were not.

C.K. v. TD General Insurance Company (18-007496)

The claimant sought a determination that she suffered a catastrophic impairment. She suffered serious physical injuries as a pedestrian struck by a vehicle. Vice Chair Flude held that the claimant suffered a Class 4 marked impairment in adaptation and therefore had a catastrophic impairment. The claimant was largely housebound since the accident due to tiredness and lack of motivation, more than five years after the accident. He preferred the opinions of the claimant’s treating occupational therapist and expert neuropsychologist, as they had more interaction with the claimant and had a more fulsome picture of the claimant’s abilities. Vice Chair Flude found the insurer’s IE reports to be more conclusory and unsupported by evidence.

A.M. v. Wawanesa Mutual (18-008775)

The claimant sought a catastrophic impairment determination, as well as entitlement to NEBs, ACBs, various medical benefits, and the denied portion of catastrophic impairment assessments. The insurer argued that the claimant’s psychological injuries and epilepsy were not accident-related, but resulted from pre-existing conditions. Adjudicator Lake agreed with the insurer and dismissed all claims. She found that the claimant had suffered from various pre-accident impairments (epilepsy, migraines, major depressive episodes related to the death of the claimant’s daughter). Further, surveillance of the claimant showed that she was not credible in her self-reporting. Adjudicator Lake was also critical of the claimant’s experts assigning the maximum WPI when converting psychological impairment. With respect to psychological impairment caused by the accident, Adjudicator Lake found Class 1 and 2 impairments. The claims for NEBs and ACBs were similarly dismissed. The denied portions of the CAT assessments were not reasonable and necessary, and the claimed medical benefits were dismissed.

T.B. v. Echelon General Insurance Company (19-001347)

The claimant sought a determination that she suffered a catastrophic impairment due to a Class 4 Marked Impairment in either concentration, persistence, and pace, or adaptation. Adjudicator Ferguson held that the claimant did not satisfy the criteria to meet a Class 4 marked impairment in either category. While the claimant did suffer mental impairments as a result of the accident, her impairment was only sufficient to meet a Class 2 or Class 3 impairment. The claimant was able to live independently, travel on her own, she was not receiving psychiatric treatment any longer, and was not using psychiatric medications. The claimant’s subjective reporting in her assessments was of limited value because of factual errors and poor validity testing.

R.D. v. Pafco Insurance Company (18-004113)

The claimant sought a catastrophic impairment determination, attendant care benefits, and housekeeping expenses. The insurer argued that the claim for HK expenses was barred by the limitation period. Adjudicator Hines concluded that the claimant suffered a catastrophic impairment as a result of Class 4 Marked impairments in each of daily living, social functioning, and adaptation. While the claimant had been involved in an earlier accident which caused serious physical injuries, the subject accident caused a severe decline in his emotional functioning which satisfied the catastrophic impairment definition. Adjudicator Hines held that the limitation period did not apply to the HK expenses claim based on the Court of Appeal’s reasons in Tomec v. Economical, and that the claimant was entitled to HK expenses of $100 per week, but only if incurred. There was no basis on which to find expenses deemed incurred. The claim for ACBs was denied. Adjudicator Hines held that entitlement only began in December 2018 when Form 1s were submitted, but that the Form 1 submitted did not reflect the claimant’s current need for assistance. The claim for both past and ongoing ACBs was dismissed.

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

The claimant sought a catastrophic impairment determination and entitlement to NEBs. Adjudicators Hines and Punyarthi held that the claimant suffered a catastrophic impairment as a result of a 55 percent WPI as a result of the accident, and that he was entitled to NEBs. The Tribunal accepted that the claimant was entitled to 26 percent WPI for a cervical spine injury, 3 percent for medications, 2 percent for sleep disorder, 5 percent for occipital neuralgia on each of the left and right side, and 29 percent for four Class 3 Moderate Impairments. The Tribunal rejected any WPI for erectile dysfunction and urinary dysfunction, migraine headaches, and knee instability. The Tribunal also rejected 15 percent WPI for emotional or behavioural disturbances, on the basis that it would “double count” the WPI assigned under mental and behavioural disorder. The Tribunal also accepted that the claimant was entitled to NEBs due to the effect of the accident on his ability to work, his recreational activities, his ability to drive, his social life, his relationships, and his resilience.