Volume. 6 Issue. 23 – June 15, 2022

This week, in ‘CAT Confirmed, Five + Years IRB, $45K Medical + 30% Award’, we take a deep dive into a multi-faceted case. The Applicant, 52 years old at the time of the accident and employed as a PSW, was determined by the Tribunal to be CAT, was awarded five years past IRB and ongoing, payment of $45K in medical plus a 30% award. The award alone would be well in excess of $40K.

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CAT Confirmed, Five + Years IRB, $45K Medical + 30% Award

Injured in a September 2015 accident, the Applicant Primo, in 18-010583 v Wawanesa sought a CAT determination, pre and post 104 IRB entitlement, and in excess of $50,000 in treatment and assessments, as well as an award. The Tribunal ultimately found Primo to have satisfied the CAT requirements, was entitled to IRB from January 2017 to date and ongoing, just under $45,000 in medical expenses plus an award of 30% on the denied IRB and medical expenses. With respect to the CAT determination, the Tribunal preferred the reports of Primo’s experts, finding as well that the reports of Wawanesa’s experts actually supported the conclusions reached by Primo’s assessors.

CAT Determination

Addressing the reports from Primo’s experts, they were found to contain numerous examples wherein “Primo failed to adapt, she attempted to withdraw from the situation or experienced an exacerbation in her symptoms. A clear indication of how she deteriorates or decompensates when faced with a stressful circumstance.” Throughout the IE reports “it is clear that Ms. Primo was decompensating, failed to adapt to the stress of the assessment, and experienced an exacerbation of her psychological symptoms.” Further, Primo “showed a failure to adapt to various stressful circumstances, which resulted in an exacerbation of her symptoms, an inability to complete tasks and a reaction to withdraw from the scenarios.”

One of Wawanesa’s experts “found Ms. Primo’s clinical presentation unusual and assumed it must have been a part of her normal characteristics, and lastly, he felt that her psychological symptoms did not coincide with what he believed as a “simple motor vehicle accident”. The Tribunal however found there to have been “no explanation of why Ms. Primo could not have the psychological reactions she did in the face of what Dr. Kirsch viewed as “a simple accident”. The Tribunal noted that Primo’s “physical injuries turned into chronic pain, the psychiatric injuries began to appear, then the symptoms began to amplify as time went on and the claim progressed.” Concluding, “Ms. Primo has shown repeated examples of a marked impairment concerning adaptation, and concentration, persistence, and pace. Ms. Primo is catastrophically impaired.”

IRB – Pre 104

With respect to IRB, Wawanesa had terminated same based upon a series of s.44 assessments in January 2017. It had been determined that Primo had no limitations or restrictions that prevented her from returning to work, demonstrated “several inconsistencies between the assessments and throughout the functional testing, that she either refused to take part in the testing or applied sub-maximal effort.” The neuropsychological expert for Wawanesa opined that “Primo’s depressive and somatic symptomology impair her ability to perform her activities of normal living but not at a level of a disability.” The Tribunal found this particular report “confusing as he opined that “symptomology impairs her ability to perform her activities of normal living” but then finds Ms. Primo could go back to work to perform activities of normal living for disabled or sickly individuals”.

The Tribunal found Primo entitled to pre-104 IRB as she “was not in a good state”. At that point in time “since Ms. Primo had not had any meaningful counseling, I find that she would not have been able to return to work considering her symptoms and lack of treatment.” It was further noted that the “s. 44 assessment did not have the complete records of Ms. Primo’s family doctor and did not conduct collateral interviews. If they had, it may have impacted their assessment of her and their impressions of the validity testing.” In terms of post 104 IRB. Wawanesa had not conducted any related assessments, given their premise that the pre 104 test had not been met. Primo was found to have reached post 104 in September 2017, same being “when it ought to have been determined whether she met a post-104 entitlement.”

IRB – Post 104

The Tribunal determined Primo met the post 104 test, finding it “abundantly clear Ms. Primo cannot work in any capacity, at any job, considering she was still receiving ongoing pain injections, she had a referral to a new pain clinic, was diagnosed with major depressive disorder, and suffering from physical and psychological symptoms that required pharmacological interventions.” Referencing Wawanesa’s CAT assessments, it was noted that these reports found a “moderate” impairment in concentration, persistence and pace as well as adaptation. These findings alone “combined would inhibit Ms. Primo to work effectively in a PSW and an office manager role.”

Medical Benefits & CAT Assessment Failure to Satisfy Requirements of s.38(8)

With respect to disputed medical benefits, the Tribunal found Wawanesa’s denial rationale for the CAT assessments, chronic pain assessment and treatment program and FAE all failed to satisfy the requirements of s.38(8), thereby rendering all payable in accordance with s.38(11)2. “Since the proper notice was never given and the treatment period described has elapsed, Wawanesa shall pay for the entirety of the treatment plans.”

Award

The Tribunal found it “clear that Wawanesa blindly followed the conclusions of its assessors without adjusting the claim and taking into account the totality of the medical records.” Wawanesa failed to submit the full clinical records to their IE assessors for an addendum report, nor did they review same themselves to determine potential entitlement to any disputed benefits. It was “clear Ms. Primo’s condition continued to deteriorate to the point where she was being assessed for catastrophic impairment and again no consideration was given to whether she could possibly meet the test for IRBs.”

Adjuster Review of the S44’s

Further “the adjuster did not objectively look at the s.44 assessor’s reports and determine whether the conclusions were in line with the complaints and medical information in the file. Also, the adjuster must look at the contrary opinions and determine how they may affect the accuracy of the s. 44 reports.”

Failure to Continuously Adjust File

The Tribunal elected to “award a value of 30% of the owed IRB’s, treatment plans, and interest for the mishandling of this file, blindly following the results of the s.44 assessors without considering the totality of the evidence and Wawanesa’s failure to continuously adjust the file.” It was found that Primo “suffered financial hardships as a result of benefits being terminated, including a need to apply to Ontario Works, borrowing money from family and having to “cut back on her diet and spending”, and the lack of treatment. She was also deemed catastrophically impaired, which puts her in a vulnerable class of society.”

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