Volume. 6 Issue. 37 – September 21, 2022

This week we delve into a CAT case, ‘Award Worthy, but Limits Exhausted’ that runs the gamut of a CAT designation, an award would have been granted were the medical limits not exhausted, whether procedural breaches override Statutory limits, and a finding that in-house counsel may well not be able to secure a costs award. The award worthy issue related to a most delayed securing of a CAT IE.

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Award Worthy, but Limits Exhausted

In Handy v Aviva (20-006124), Handy sought a CAT designation, in addition to various medical expenses and Attendant Care (ACB). Ultimately, the Tribunal found that “although the accident has had a profound effect on the applicant’s life, he did not sustain a catastrophic impairment.” Therefore, he was not entitled to post 104 ACB nor any further medical expenses, having exhausted the non-CAT limits.

Ranges to Determine WPI Not Helpful

The Tribunal took issue with aspects of the opinions of the assessors for both parties. It was noted that Handy’s expert added up the impairment ratings, “using the highest ratings where a range was provided, however the “report is silent on why.”

The providing of a range of WPI percentages “does not assist me in determining whether the applicant has a catastrophic impairment.” This practice was found to “ignore the many instructions in the AMA Guides that repeatedly emphasize that clinical observation, training, judgment, experience, skill, and thoroughness of evaluation should be used to derive as precise a rating for an impairment as possible. This contradicts both (Handy’s experts) testimony that the AMA Guides provide no guidance for what to do with a range of rates. Accordingly, I do not accept (the) explanation or reasons for choosing the highest rate without explanation when a range is given.”

The Tribunal found as well that Aviva’s expert “underrated the effect the accident has had on the applicant’s functional abilities,” For one thing, the suggestion of a mild class 2 impairment rating for concentration, persistence and pace was found to be “inconsistent with the reasons why the applicant is unable to adapt to the workplace.” Further, a determination of a GAF score of 65, “which is consistent with “some difficulty” in functioning, but “generally functioning pretty well, has some meaningful interpersonal relationships” was found not to be tenable. The Tribunal noted that “I do not find that relationships that require a party to walk on eggshells when there was no such need before is a sign of functioning pretty well.”

With respect to the ultimate WPI score, Handy’s experts had opined 44% to 55% (defaulted to 55%), whereas Aviva’s total score was 9% WPI. The Tribunal found that Handy has sustained a 41% WPI, well short of the required 55% for a CAT designation.

Section 38 (11) Does Not Override limits

Handy sought entitlement to a $8,495 OCF18 for the services of a rehabilitation support worker. The Tribunal found for a fact that Aviva’s denial of same was well outside of the prescribed obligation to reply within ten days of receipt. While the Tribunal did not have evidence as to what, if any, was incurred during the period in question, given that the limits were exhausted, “I find that if the amount of a medical or rehabilitation benefit is limited or capped elsewhere in the Schedule, that s.38(11) does not operate to override that limit.”

Award Worthy Behavior

The Tribunal then turned to Handy’s claim for an award, submitting that Aviva had unreasonably delayed his determination of catastrophic impairment and the payment of the medical, rehabilitation and attendant care benefits claimed. The Tribunal in response indicated that “As no further benefits are payable, the respondent did not unreasonably delay the payment of benefits. However, if he had been entitled to any benefits, I would have found he was entitled to a Reg.664 award”

The Tribunal was particularly troubled by an inordinate delay in Aviva completing CAT IEs, with Handy having submitted his OCF19 in early February 2020, with the corresponding IEs not released until mid June 2021. One issue was the fact that the CAT OT IE did not take place as planned in August 2020, with the assessor contending that she needed to schedule an additional day for her to complete the assessment because the applicant took 40 minutes to have a consent form approved and signed.” Further, that the earliest available rescheduled date was not until March 2021.

The Tribunal found that the OT “was evasive and would not answer questions directly but would provide long explanations that were not related to the question asked. She eventually testified that she could have assessed the applicant sooner if she had canceled one of her other appointments. I do not understand why she did not do so.” It was noted that the IE vendor “could have just re-booked that canceled appointment with a different occupational therapist. No insured person would have experienced the delay that the applicant did.” It was further noted that Aviva had “tried to schedule the remainder of the assessment as a virtual assessment for an earlier date, but (the OT) advised she needed to do a physical assessment of the applicant and that could only be done in person.” The OT’s “disregard of the importance of completing her assessment in a timely manner was callous.”

In addition, “it is not clear that her assessment was even reasonably required by the physician or neuropsychologist who was performing the catastrophic IE under s.45 of the Schedule”. To the Tribunal, “it appeared that someone from (IE Vendor) determined that a neuropsychologist, psychiatrist, orthopaedic specialist and occupational therapist should do the catastrophic IE without having input from the physician charged with conducting the catastrophic IE.” With the OT report finalized in April 2021, the physician in charge “was not asked until June 1, 2021 to write the executive summary, which was well after all of the other reports were completed”.

Aviva was found “responsible for the unreasonably delay as it chose (IE Vendor) to arrange the assessments and, through that choice, the assessments were not properly arranged in accordance with the Schedule or in a timely manner. However, given that there are no benefits owing since the policy limits appear to be exhausted, the claim for a Reg. 664 award is dismissed.”

No Costs for In House Counsel

Aviva also sought costs of $1000 for each motion brought by Handy. However, they “did not provide a breakdown of the legal fees incurred. Further, the respondent is in-house counsel and, accordingly, I would require some proof that the respondent actually incurred legal fees rather than paying an employee salary. Without proof that the respondent sustained any costs as a result of the motion, I am unable to award any costs.”

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