Category: Catastrophic Impairment

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.

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.

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.

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.

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.