News Update – March 11, 2019

Would Have, Could Have, Should Have

In the first reported decision using the new June 1, 2016 CAT definition, the Applicant, who was seriously injured in a head-on collision on December 8, 2016, applied for a CAT determination 15 months after the accident. In response, the Respondent secured medical opinions to the effect that the Applicant had not yet reached MMR, and as such, the permanent impairment rating could not currently be determined.

Given that the request of the Applicant was prior to the two year mark, he was required to be (i) “assessed by a physician who determines that he has a whole person impairment of 55% or more”, and (ii) the physician determines that his condition is unlikely to improve to less than 55%.

The tribunal found the assessor’s “use of the word ‘probable’ in his report to describe the applicant’s WPI, coupled with his own admission in cross examination that he did not arrive at an absolute WPI rating and provided probable ratings, is problematic as it connotes uncertainty as to the present valuation of WPI.”

Is the Applicant’s WPI 55% or more?
The Tribunal found that no assessor has concluded that the Applicant “has a combination of a mental or behavioural impairment and a physical impairment determined that results in 55 per cent or more impairment of the whole person”. Statements from the various assessors that “only provided different scenarios of projections that may apply to the applicant at a future point in time but did not explicitly conclude that the applicant is presently catastrophically impaired” would not suffice.

Is the Applicant’s condition unlikely to improve?
The Tribunal in fact concluded that “the evidence established that [the Applicant] was still expected to improve and had further surgeries that need to be scheduled which could improve his mobility. Given the lack of certainty from the applicant’s medical experts, I am left wondering if the applicant’s condition could possibly improve towards a percentage less than 55 percent WPI which would not make him catastrophic under criteria 7.”

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