Volume. 6 Issue. 30 – August 3, 2022

This week the Tribunal considers whether an Applicant can attain temporary CAT status, following the insurer’s reversal of an earlier CAT determination.

In the second case, the Tribunal considers whether an Applicant can be entitled to IRB when they were but two days short of the required 26 weeks employment in the prior 52 weeks.

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Applicant Found to be CAT Temporarily

Temporary CAT – Injured in a March 2016 accident, the Applicant H.Y.Z., in 18-003942 v Allstate, was ultimately deemed CAT following a series of s.44 IEs that found a marked impairment in the domains of adaptation and social functioning. However, after receiving the H.Y. Z.’s ODSP file Allstate’s IE assessor then opined that H.Y.Z.’s current level of functioning was consistent with her pre-accident functioning, thereby assigning a class 1-2 impairment across all domains. As a result, Allstate reversed its position and advised H.Y.Z. that she was no longer considered CAT.

For the purposes of the hearing, H.Y.Z. was not disputing the ultimate decision regarding CAT. Rather, she disputed whether she ought to be entitled to the enhanced CAT limits during the period in which she was considered CAT. This is to be understood in context of H.Y.Z. having submitted fourteen treatment plans during the period, whereas she had approximately $12,500 remaining non-CAT limits. Allstate argued that since H.Y.Z. was not contesting the CAT determination, she was not therefore entitled to the enhanced benefit levels, and further that the Tribunal lacked jurisdiction to order payment beyond the non-CAT limits under the circumstances.

The Tribunal framed the matter as to “whether an insurer is allowed to retroactively apply a decision” and determined that “In light of the SABS being consumer protection legislation, I find that an insurer is not allowed to apply a decision retroactively.” Therefore, the Tribunal found that H.Y.Z. was “entitled to apply for enhanced catastrophic policy coverage during the period she was considered catastrophically impaired by Allstate.” In this matter, H.Y.Z. “was told she was rendered catastrophically impaired. Therefore, she would be eligible to apply for enhanced policy limits and she did.” Further, “Allstate is entitled to make mistakes and rectify them. But to allow an insured to retroactively apply those decisions would be wholly unfair to an insured who makes choices based on communication with its insurance company.”

Accordingly, the Tribunal determined that the plans in question were to be adjudicated in context of the enhanced policy limits. The Tribunal found H.Y.Z. to be entitled to the submissions for psychological related issues, as the accident was currently the only stressor of psychological impairments. However “most of the treatment plans for physical therapy not reasonable and necessary”, in that H.Y.Z. had “received approximately 2 years’ worth of physical therapy and has likely reached maximum medical recovery…(with) no evidence to suggest [H.Y.Z.] is receiving any benefit from the treatment.”.

Applicant Misses IRB Entitlement by Two Days

Two Days Short of IRB – the Applicant Devi, in 20-011690 v Allstate, sought IRB entitlement, having worked a total of 180 days in the 52 weeks prior to the accident. Devi confirmed that this equated to 25.71 weeks, or 26 work weeks. To attain a full 26 weeks, an additional two days of employment during the qualification period would have been required. Devi submitted that when the “26/52” is read in the context of the consumer protection mandate of the Schedule, 25.71 weeks amounts to 26 weeks. Failing same, “in the alternative, the applicant submits that even if she was employed for only 25.71 weeks, this ought to be rounded up to 26 weeks to align with the consumer protection nature of the Schedule.”

The Tribunal however found that by “utilizing the wording “at least 26 weeks” the Legislature established the minimum threshold eligibility for income replacement benefits”. Further, the Schedule “does not include permissive language, such as “approximately 26 weeks” or “may be employed for 26 weeks”. While agreeing that the Schedule was to be interpreted as consumer protection legislation, the Tribunal “cannot impute statutory wording that does not exist. There is no provision of the Schedule that permits me to round up the weeks from 25.71 to 26 weeks” Nor was the Tribunal persuaded by the argument that it should consider “work weeks”. Accordingly, Devi was not employed for the minimum 26 weeks required to qualify for IRB.

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