Category: Catastrophic Impairment

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.

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.