The claimant was involved in a motor vehicle accident on June 22, 2016. The policy of insurance was in place on May 18, 2016. The SABS was revised June 1, 2016. The revised SABS raised the threshold for determining catastrophic impairment pursuant to criteria F, from 1 of 4 class IV findings to 3 of 4 class IV findings. The claimant argued that the original definition of catastrophic impairment was applicable to her claim. In this case the adjudicator followed a prior LAT decision “HS” 17-007264 v. Allstate Insurance, 2018 Can LII 132563 that also found the 2016 catastrophic definition applicable to accidents that took place after June 1, 2016. The adjudicator reasoned that if the 2016 SABS planned on including the catastrophic impairment definition in the 2010 Schedule, it would explicitly say so. The adjudicator noted there were transitional provisions, yet the catastrophic definition was not mentioned there. The adjudicator also was required to consider whether other claims were statute barred as the claimant’s application was filed after the limitation period prescribed by section 56 of the SABS. The adjudicator chose to exercise her discretion pursuant to section 7 of the LAT Act and to permit portions of the application disputing entitlement to treatment and assessment plans to proceed. She ruled that the claim for IRBs could not proceed. She considered the prejudice to the defendant too great compared to the prejudice involving the other appeals.
