Volume. 3 Issue. 17 – May 29, 2019

Complimentary Notification

“Simply Unbelievable” That a CAT Assessment Would Consume 34% of Medical Limits

Simply Unbelievable – In 18-007227 v Unica, arguing that the costs associated with a CAT Assessment ought to be considered as included within the available medical limits, the Respondent urged the Tribunal “as a starting point” to adopt its interpretation of a guiding principle: the goal of further cost reduction in the auto insurance system. The Tribunal however was unpersuaded that “the cost reduction goal should carry decisive weight in determining this issue” as such a brief descriptor “cannot, in my view, be credibly extrapolated to provide an overarching statement of how to interpret the entire Schedule.”

The Respondent further argued that “while the designation of catastrophic impairment is not a benefit in and of itself, the designation does have a ‘connection’ with benefits and/or payments to or for the insured person.” The Tribunal however found that “the ‘connection’ that [the Respondent] urges me to make between CAT assessments and benefits in my view, stretches the wording of s.18(5) too far. My reading of s.18(5) is that it plainly refers to assessments in direct connection with any specific payment or benefit…”

The Respondent also argued that the Tribunal ought to “ignore or discount precedents cited by [the Applicant] to support her position that CAT assessments are excluded from the $50K cap…because the respondents in those cases have appealed or asked for reconsideration of the Tribunal’s decisions to exclude CAT assessments from the cap on non-CAT medical benefits.” In response, the Tribunal stated, “These decisions will remain persuasive to me until and unless they are reversed, and I find both decisions highly persuasive in this case.”

Lastly, the Tribunal commented, “The effect of deducting CAT assessment costs from the $50K available to ‘not-yet-CAT’ accident victims would be to force seriously injured people to plan to hold a significant percentage of entitlement – in this case 34% — in reserve, just in case they need a CAT assessment. This would represent a serious deterrent to seeking needed medical treatment, or alternatively act as a major barrier to seeking CAT determination.” Closing, it was found “simply unbelievable that such obvious effects are intended or supported by any reasonable interpretation of the Schedule and they are clearly inconsistent, as [the Applicant] notes, with the consumer protection objective of insurance law”.

Potential for Improvement Irrelevant in CAT Determination

Taken with a Grain of Salt – In 17-006372 v Allstate, the Tribunal noted that the Applicant and Respondent’s CAT assessors gave “almost identical diagnosis”, however differed in the applicable impairment ratings. The Applicant’s assessor, noting two marked impairments, made the point that the Guides stipulate that “a determination of impairment is not simply quantitative but rather a qualitative determination which takes into account the appropriateness, effectiveness, and independence of residual abilities in all the areas of functioning”. The Respondent’s assessor however opined that the level of activity shown was more in line with a moderate impairment, adding that “he has seen people with ‘marked’ impairments and they do not ‘look’ like the applicant”.

While finding no issues with the credibility of the Applicant, the assessor nonetheless testified that one reason for the moderate rating was “because with people who have a tendency to overstate their case, he tends to take it with a ‘with a grain of salt’”. Further, the assessor felt that “moderate” was appropriate, as the Applicant “has the potential to go into remission and improve functioning as depression is treatable.” The Tribunal however confirmed that “estimates given are to be based on current findings and evidence, not on future possibilities of the applicant’s condition. It is not appropriate to give a rating based on the potential that the applicant’s condition may improve in the future.”

Degrees of LATitude

The Tribunal Constructs Necessary Evidence for MIG Escape

Catch Your Breath – In 17-002565 v Aviva, the opinion of the IE assessor was that the Applicant’s pre-existing medical conditions may prolong her recovery. However, he then “concluded that a prolonged recovery is not a reason to exclude the applicant from the MIG. I find [the IE assessor]’s conclusion does not make sense.” In addition, “according to the respondent’s submissions, I am prohibited by the Schedule from considering the applicant’s pre-existing medical problems because neither [the IE assessor] nor any other physician provided an opinion on the effect they would have on the applicant’s recovery under the MIG.”

However, the Tribunal found that “although [the IE assessor] did not provide an opinion about the effect of the pre-existing lung condition, I find that his opinion that the applicant’s other pre-existing medical conditions may prolong her recovery combined with the medical opinions that diagnose the applicant with pre-existing lung problems contained in [the family doctor]’s clinical notes and records are compelling evidence as required under the Schedule…It is common sense that a person who has shortness of breath upon physical exertion will require a longer time to undergo physiotherapy.”

The Tribunal Fails to see the Frequency of Assessor Retention as Relevant

How Much Did They Pay You? – In 17-001941 v The Personal, the Applicant submitted that she is entitled to know the total number of reports two IE assessors provided to the Respondent in last three years and how much they were paid for each report. She further explained that because both doctors intend to provide expert evidence at the in person hearing, she wishes to assess their impartiality.

The Tribunal stated, “I fail to see how information about how many times a particular assessor has been retained by an insurer or how much each report cost are relevant at this stage to the issues and would assist the applicant in satisfying that his injuries are not minor or that the proposed treatments are reasonable and necessary…Without a clear connection between the requested document or information file and the issues in dispute, the proposed evidence lacks relevance…the applicant must provide some threshold evidence of assessor bias. Here none exist.” Further, “the issues here are clear and straightforward and compelling medical evidence will be required from the applicant…Therefore, in my view, the requested particulars regarding the business relationship between the doctors and the respondent is not permitted.”