Category: Catastrophic Impairment

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.

A.M.F. v. The Dominion of Canada General Insurance Company (17-006710)

The insurer sought reconsideration of the Tribunal’s decision that the claimant suffered a catastrophic impairment and that she was entitled to two medical benefits for physical therapy. Adjudicator Parish rejected the reconsideration. She found that all of the insurer’s arguments essentially amounted to re-argument of the case. The Tribunal was not required to make note of every finding of every expert in its decision, nor was it required to address all case law submitted by the parties. The Tribunal’s decision to accept the opinion of the claimant’s assessors over the insurer’s assessors was not an error of law. Nor was use of the California Method for converting a GAF into WPI.

Applicant v. Unica Insurance Company (17-007052)

The claimant sought reconsideration of the Tribunal’s order that she did not suffer a catastrophic impairment and that she was not entitled to a chronic pain assessment. Vice Chair Lester rejected the reconsideration, holding that the Tribunal had weighed the evidence before it and had good reason to give more weight to the insurer’s assessors. The Tribunal provided an adequate explanation for this decision.

Applicant v. Certas Direct Insurance Company (18-000563)

The minor claimant sought a catastrophic impairment determination following an accident in which he sustained a concussion and developed behavioural disorders, including post-traumatic stress disorder and obsessive-compulsive disorder. Adjudicator Daoud found that the claimant suffered a Class 4 Marked Impairment in adaptation as a result of his injuries. She accepted the evidence of the claimant’s special education teacher and the claimant’s neuropsychologist.

Applicant v. Toronto Transit Commission (18-009821)

The claimant sought a determination that he suffered a catastrophic impairment as a result of the accident. Adjudicator Boyce agreed with the claimant and concluded that he suffered a Class 4 marked impairment in adaptation, as well as a WPI in excess of 55 percent. Although the claimant presented with multiple credibility issues, Adjudicator Boyce was persuaded that the claimant’s brain injury resulted in significant changes in function, including the inability to work as a chef, having to sign over power of attorney to his wife, and several documented suicide attempts. He preferred the evidence of the medical experts testifying for the claimant, who provided more coherent opinions and withstood cross-examination.

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunal) (2019 ONCA 518)

The Tribunal and the insurer appealed the Divisional Court’s decision that there was a reasonable apprehension of lack of adjudicative independence. The Court of Appeal dismissed the appeal and held that the Divisional Court had correctly applied the case law regarding adjudicative independence. The dispute was remitted to the Tribunal for a new hearing on the catastrophic impairment.