August 14, 2018

ACCIDENT BENEFITS UPDATE

In E.E. and Aviva Insurance Company, a recent decision of the Licence Appeal Tribunal (LAT), the Applicant, E.E. claimed that he had suffered Catastrophic (CAT) Impairment under the Statutory Accident Benefits Schedule (SABS) following a serious single vehicle collision on January 28, 2012 in which he was a passenger.  His initial complaints included neck and back pain with loss of sensation in his right arm. No neurological defects were noted at the hospital. His condition deteriorated over time, and he required several emergency room visits culminating in significant spinal surgery. He continued to suffer from spasticity in his extremities with severely altered gait and very limited use of his dominant right hand, as well as ongoing psychological impairments.  

Based on these impairments, E.E. was unable to continue working on cars, and played only a limited role in the care of his children and home.  

E.E. submitted Treatment Plans to Aviva for Attendant Care (AC), provided by his wife, a registered practical nurse.  He also sought a Determination of Catastrophic Impairment to continue seeking treatment and AC beyond the standard policy limits.  Aviva denied both, claiming that E.E. had not suffered CAT injuries from the collision.  

Both parties scheduled a series of CAT assessments to determine the overall impact of the collision on E.E.’s function.  

Under the SABS, a claimant can be identified as CAT for a series of different impairments, including severe objective brain injury and paraplegia.  When a claimant’s impairments do not match one of the named categories, the assessors use a Whole Person Index (WPI) rating, which assigns percentages to the various impairments and calculates an overall Impairment rating.  If this overall rating exceeds 55%, the claimant is deemed CAT.

E.E.’s assessors determined that his combined physical and psychological impairments resulted in a 70% WPI rating, well above the CAT threshold.  On the other hand, Aviva’s assessors opined that E.E.’s overall WPI rating was 15-18%, and, moreover, that these impairments were not caused by the collision.

CAUSATION

Regarding causation, Aviva argued that E.E.’s impairments were largely caused in a 2006 workplace accident.  As well, it claimed that his neurological symptoms manifested too long after the collision to have been caused by it.  Finally, Aviva relied upon comments by E.E. to two assessors that his neck had returned to its pre-accident state.

Adjudicator Bickley rejected Aviva’s causation arguments.

It was true that E.E. fell from a scissor lift in 2006.  However, he and his wife both testified that he returned to his physically demanding work within several days.   The evidence showed that he was fully functional despite residual pain by the 2012 collision.

Dr. Oshidari, Aviva’s Orthopaedic assessor, argued that the neurological symptoms manifested too long post-collision to be considered causally connected.  On cross-examination, however, he admitted that he had not reviewed relevant contemporaneous medical documents, including the hospital ER report, that were indicative of neurological injury.  

E.E. denied that he had ever said his neck had returned to its pre-collision state.  Adjudicator Bickley found his evidence credible throughout the hearing. She also pointed out that he was not a medical practitioner, so any statements he might have made were not conclusive.

On the balance of probabilities, the Adjudicator found that the collision was the cause of the majority of E.E.’s ongoing impairment.  

WPI RATING

The was little dispute between the two CAT assessments concerning E.E.’s WPI for mental and behavioural impairment (18% vs. 15-18%).  Regarding physical impairments, Aviva assigned 0% based on its causation theory, or 29% in the alternative. E.E.’s assessors assigned 64% WPI for physical impairments.  

The difference in the physical WPI ratings arose because E.E.’s team considered his impairments as both musculoskeletal and neurological, while Dr. Oshidari viewed them only as Musculoskeletal.  Aviva argued that Dr. Becker (for E.E.) was “double-counting” the impairments to exceed CAT, and that this was not justified. Conversely, E.E. argued that Dr. Oshidari was lumping separate impairments together to minimize the WPI result.  

Adjudicator Bickley preferred Dr. Becker’s opinion.  She noted (as above) that Dr. Oshidari had failed to consider important medical information, and that he failed to modify his opinion based on that information.  He also failed to follow the Guides when establishing his ratings, and used extraneous material not authorized in CAT assessments. These factors made the Adjudicator call the reliability of his report and evidence at the hearing into question.   Therefore, she determined that E.E. had suffered a Catastrophic Impairment.

ATTENDANT CARE

E.E. first submitted Treatment Plans for AC on March 16, 2016 seeking retroactive and ongoing care. Under the SABs, an insurer may, but is not required to pay an expense that was incurred before it receives proper documentation (in this case, a Form 1). E.E. argued that Aviva had enough information to determine that he required AC in the absence of the Form 1.
Following T.K. v. Unica Insurance Inc., Adjudicator Bickley recognized that retroactive claims need to be determined on their particular facts. On these facts, she accepted Aviva’s position. She found that E.E. had provided information to Aviva that indicated he did not need AC. He claimed that he under-reported his needs based on embarrassment. This was considered irrelevant, especially because E.E. originally hired a lawyer by February 2013 at the latest, who could have corrected his client’s position. Therefore, no AC was payable before March 16, 2016.
E.E.’s wife provided care rather than returning to work. Adjudicator Bickley accepted that E.E. had promised to pay her for her services, and that they were performed in the course of her occupation, employment, or profession. Aviva was responsible to cover AC during this period.
Aviva argued that the amount of AC sought ($3,704.91/month) was excessive because it included 8 hours of overnight supervision. The evidence showed that E.E. was not capable of caring for himself in the event of an emergency because of disorientation, weakness and pain upon waking. As a result, the Adjudicator approved Attendant Care from March 16, 2016 and ongoing at $3,704.91 monthly.
If you have been seriously injured in a collision, and have questions concerning CAT, AC or other issues with your recovery, please reach out to us for a free consultation. At Campisi LLP, “Clients First, Excellence Always” is the foundation of our practice. Put us to work for you.

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