Contact Us

Complimentary Issue Volume. 9 Issue. 38 – December 3, 2025

In The Spotlight

This week, the Tribunal conducts a court-ordered rehearing in which the Applicant seeks a CAT designation under Criterion 7. Notably, the only CAT related reports before the Tribunal were commissioned by the Respondent and each concluded that the Applicant met the Criterion 7 requirements. The Respondent, however, questioned whether those conclusions were supported by the broader evidence. The Tribunal’s reasons also include a curious discussion of one aspect of the Applicant’s impairments, which we describe at the end of this case summary.

Virtual Training – Upcoming Dates!

Secure your seat for inHEALTH’s 2025 upcoming Virtual Training session!

• SABS Expedited: December 8-12, 2025

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +

Insurer Not Obliged to Accept Conclusions of S.44 CAT Assessor

Respondent Does Not Accept the S.44 CAT Report – The Tribunal, in 23-011001 v Definity, conducted a rehearing as ordered by the court, following the Applicant Plante being unsuccessful in both a prior hearing as well as reconsideration. In the present matter, Plante sought a CAT designation as a result of injuries she sustained in a May 2019 MVA. This was based upon Criterion 7, requiring a 55% Whole Person Impairment (WPI). Reference was made to the one executive summary in evidence, prepared for Definity by Dr. James Stewart, general practitioner, dated June 9, 2023. The report confirmed that Plante satisfied the Criterion 7 requirements, with a 56% WPI.

The Tribunal disagreed with Plante’s assertion the Schedule requires the Tribunal to accept the WPI ratings by experts, with the only decision to be made by an adjudicator being whether to accept the rating of one expert over another. And in the present case, there was only the one expert report of record. She also submitted that the Tribunal cannot render independent WPI ratings separate from the ratings made by experts. To this, the Tribunal noted that “(r)esolving disputes primarily involves considering and weighing evidence within the legislative framework. This is an adjudicative function that does not require specialized medical training. Thus, the Tribunal can accept or reject the WPI ratings of experts, so long as sound reasons are provided. For the above noted reasons, I reject the applicant’s argument that I must accept the ratings of experts and cannot make my own independent WPI ratings.”

The WPI ratings were described as follows:

In the Catastrophic Impairment Neurology Evaluation, dated June 9, 2023, Definity’s expert, Dr. Dost, rated Plante as having a 5% WPI rating the under Table 17 of Chapter 4 of the Guides for urinary dysfunction and another 5% WPI rating for anorectal dysfunction the under Table 18 of Chapter 4. Plante contended that “Dr. Dost’s ratings for incontinence should be accepted at face value because he is the only expert to provide a WPI rating for this impairment. In the alternative, the applicant argues that incontinence should be rated according to Dr. Dost’s testimony where he opined that a post-accident exacerbation of both types incontinence would result in a combined 4% WPI rating.”

For their part, Definity submitted that “Dr. Dost’s rating for incontinence should be given no weight because it was based on the inaccurate information. The respondent further submits that there is no evidence to justify a 4% WPI rating for a post-accident exacerbation of incontinence.” The report confirmed that Plante had pre-existing incontinence issues that became worse after the accident. He indicated that “The claimant did have some urinary stress incontinence. However, post accident it has worsened to both with bladder and bowel. She now requires diapers. This was not an issue before the accident.”

The Tribunal found that Plante “had urinary and stool incontinence and also required diapers prior to the accident. Dr. Dost testified that there is no difference between the circumstances described above and the self reported post-accident incontinence. He further testified that he would give no rating for incontinence if these facts are correct because there was no post-accident change to this impairment.” The Tribunal gave “no weight to Dr. Dost’s combined 10% WPI rating for incontinence. An occupational therapist recorded the applicant’s pre-accident stool incontinence and use of diapers. There is no meaningful difference between this and the post accident description of incontinence in Dr. Dost’s report… As the impairment did not get worse after the accident, there is no basis to rate incontinence as an accident-related impairment.”

Not Subscribed to inHEALTH’s Free Mailing List?

Always Be In The Know! Get Instructive Tips, Insights and Analysis for free! Sign up and become an inHEALTH inSIDER.

With respect to headaches, the Tribunal noted that Plante “relies on the Executive Summary and the report of Dr. Dost for the 5% impairment rating for headaches. However, these documents do not identify what section of the Guides was used to make this rating. Consequently, this rating cannot be relied upon because it is not possible to understand how it was formulated.”

Concluding, “If the remaining ratings are accepted, the applicant receives a 48% WPI rating…Consequently, I find that the applicant is not catastrophically impaired under Criterion 7 as her WPI rating does not meet the necessary 55% threshold.”

As an aside, with respect to the findings regarding headaches, the same adjudicator (Adamidis) was subject of a rebuke by the court in an earlier rendering. On reconsideration, the Tribunal took the position that “It is not possible to understand a WPI rating without referencing the correct table used to make that rating. Consequently, I find that I did not fail to appreciate the evidence, and therefore, did not make an error of fact that would have resulted in a different outcome.”

Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Get an OAR – Available as a fee for service.