Category: Catastrophic Impairment

Applicant v. Aviva General Insurance (19-002362)

The claimant sought a catastrophic impairment determination. The insurer argued that the claimant’s impairment were a result of degenerative changes to the claimant’s spine rather than the accident. Vice Chair Flude agreed with the insurer, and found that the claimant’s accident-related impairments were not sufficient to meet a 55 percent WPI. He held that the claimant’s cauda equina like symptoms (which accounted for 40 percent WPI) were not a result of the accident.

Applicant v. Dominion of Canada General Insurance Company (18-004952)

The claimant sought a determination that he suffered a catastrophic impairment due to a Class 4 marked impairment. Adjudicator Lake accepted that the claimant sustained a mental or behavioural disorder as a result of the accident, but that he did not suffer a Class 4 marked impairment in any sphere of function (his impairments ranged from Class 2 to Class 3 in all four spheres). He was able to independently manage most aspects of his life (including self-care and housekeeping), maintained a social life, had positive relationships with his family, managed his own finances, and engage in work-like activities and tasks.

N.C. v. TD Insurance Meloche Monnex (18-003656)

The claimant sought a determination that he suffered a catastrophic impairment due to a Class 4 marked impairment or 55 percent WPI, ACBs, HK expenses, and various medical benefits. The insurer sought repayment of IRBs. Adjudicator Neilson concluded that the claimant did not suffer a catastrophic impairment. She first noted that the claimant would only be assessed on his current state – not potential future surgeries or deterioration that may occur. She also ruled out any WPI for hip issues, because the claimant could not prove that his hip impairments were causally related to the accident. In terms of psychological impairment, Adjudicator Neilson held that the claimant suffered Class 2 impairments in all spheres of function (the claimant’s occasional deterioration did not support a Class 4 impairment, which required the impairment to be stable or ongoing), which was equivalent to a 15 to 20 percent WPI. The total WPI was 36 percent. The insurer’s request for IRB repayment was dismissed because the insurer could not prove that payment of earlier IRBs was made as a result of material misrepresentation or fraud. Misreporting on his income tax returns was due to a T4 not being given to him by his employer.

Economical Mutual Insurance Company v. A.S. (19-001820)

The insurer applied to the LAT for repayment of IRBs, and also for a determination on the claimant’s entitlement to further IRBs, the application of a section 33 suspension, and whether the claimant sustained a catastrophic impairment. Adjudicator Boyce held that the insurer could not bring an application related to IRB entitlement, section 33 suspension, or a catastrophic impairment, but could proceed with the request for repayment. He reasoned that the Tribunal only had jurisdiction once there was a dispute between the parties. The insurer’s determination regarding IRBs, section 33, and a catastrophic impairment was not equivalent to a “dispute” or “disagreement.” The claimant could, potentially, agree with the determinations and abide by the decisions. The insurer was permitted to proceed with the request for repayment, but the remainder of the issues were dismissed.

Applicant v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought a catastrophic impairment determination, entitlement to attendant care benefits, and the cost of various assessments. The claimant suffered from chronic pain, had not worked in the 10 years since the accident, and had been diagnosed with major depressive disorder. Pain prevented the claimant’s participation in home-based activities, and she rarely left the house. Adjudicator Parish found that the claimant suffered a Class 4 marked impairment in activities of daily living (no other spheres of function were found to be Class 4). In terms of the WPI, Adjudicator Parish would have assigned 40 percent for the psychological impairment and 7 percent for physical impairment, meaning that the claimant did not have a 55 percent WPI. Adjudicator Parish awarded retroactive ACBs of $507.03 per month for assistance with meal preparation. She rejected the claims for grooming (the claimant was capable of independent hair care), bathroom cleaning (which was found to be housekeeping, not attendant care); and basic supervisory care (the Form 1 category was for emergency assistance, but the claimant did not lack the capacity to respond to an emergency; emotional care was not an appropriate attendant care service). Adjudicator Parish also awarded the cost of an OT situational assessment related to the catastrophic impairment application. She also awarded the cost of the in-home assessment to complete the Form 1. Adjudicator Parish also held that the claimant was not required to meet the strict “incurred” definition for payment of ACBs, because the accident occurred in 2009. Interest was awarded on ACBs, but only from the date the Form 1s were submitted.

Applicant v. RSA Insurance (19-000560)

The claimant sought a determination that he suffered a catastrophic impairment based on the impairment under the American Spinal Injury Associate (ASIA) Impairment Scale. The claimant’s injuries met the required level of impairment, but the insurer argued that the injury was not yet permanent, which is a requirement under section 3.1(1)1(ii)B of the SABS, because the assessment was less than one year after the accident and improvement could be seen in the initial 18 to 24 month period. Adjudicator Johal held that the claimant satisfied the definition, and that there was no evidence to suggest that the claimant’s level of function would improve to such a degree that would take her outside of the definition. It was noted that the claimant had not experienced any long-term improvements after 13 months, and that the “potential to improve” did not mean that a permanent impairment measurement could not be obtained at present.

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

The claimant sought a declaration that she was catastrophically impaired as result of the accident due to a 55 percent WPI. The claimant’s assessors opined that the claimant had a 67 percent WPI. The insurer’s assessors opined that she had a 39 percent WPI. Causation and interpretation of the AMA Guides were in dispute. Adjudicator Grieves found, inter alia, that the “California Method” was a suitable method for converting a GAF score into a WPI rating and the claimant’s headaches did not satisfy the test for a WPI rating. The appropriate WPI rating for sleep disorders and disfigurement were also addressed. Adjudicator Grieves concluded that the claimant was catastrophically impaired as result of the accident.

J.H. v. CUMIS General Insurance Company (18-012367)

The claimant sought a determination that she suffered a catastrophic impairment, entitlement to IRBs, and entitlement to various medical benefits. Adjudicator Gosio held that the claimant did not meet the criteria to suffer a catastrophic impairment. He agreed that the claimant suffered a psychological impairment, but that the maximum impairment was a Class 3 moderate impairment in each of the spheres of function. The claimant continued to care for her young child, was independent with personal care, and was able to exercise independently. She visited with family and friends on occasion. The claimant appeared well-groomed and there was no evidence of self-neglect. Adjudicator Gosio did award IRBs on an ongoing basis, holding that the claimant’s anxiety prevented her from returning to work. The claims for physical therapy were rejected, as the claimant was capable of independently exercising; the HST on an approved treatment plan was awarded.

A.K. v. Allstate Insurance (17-008646)

The claimant sought a determination that she suffered a catastrophic impairment. Adjudicator Gosio concluded that the claimant suffered a catastrophic impairment as a result of a Class 4 marked impairment in adaptation. The claimant suffered psychological injuries as a result of the accident, including pain disorder, major depressive disorder, and anxiety disorder with features of post-traumatic stress. The claimant had not returned to work in the nine years since the accident. While she remained independent with personal care, she was much slower with pacing. Her husband managed most of the grocery shopping. The claimant’s credibility went largely unchallenged in the hearing. Adjudicator Gosio was particularly critical of the IE assessor, whose draft report had indicated a Class 4 marked impairment in adaptation; the assessor explained that it was part of a “training exercise” for the 2016 changes to the CAT definition.

M.A. v Certas Home and Auto Insurance (19-002077)

The insurer raised a preliminary issue regarding whether the claimant was statute barred from proceeding with her claim for a catastrophic impairment pursuant to section 55 of the SABS, because she refused to attend a neuropsychological IE. Adjudicator Boyce concluded that the claimant was barred from proceeding with her claim until she attended the requested IE. In doing so, the adjudicator noted that the insurer’s request for the IE was timely and reasonable, made in good faith and appropriate given its rights under the SABS. Adjudicator Boyce further noted that without a complete CAT assessment, the insurer would be at a disadvantage from an adjusting standpoint and in the proceedings before the Tribunal.