Applicant hit by motorcycle makes case for CAT impairment - 18-000169 KS v TD Home and Auto Insurance Company, 2019 CanLII 22189 (ON LAT)

June 10, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant hit by motorcycle makes case for CAT impairment - 18-000169 KS v TD Home and Auto Insurance Company, 2019 CanLII 22189 (ON LAT)

Date of Decision: February 25, 2019
Heard Before: Adjudicator Jesse A. Boyce

CAT IMPAIRMENT – applicant makes case for CAT impairment; applicant fails to make case for housekeeping, IRBs, or ACBs

OVERVIEW

KS was injured on October 28, 2014 while riding his bicycle. He was struck by a passing motorcyclist and flung from his bike, landing on the pavement and splitting his head open. As a result of the accident, KS sustained physical injuries to his head, upper body, knees and a fractured neck. He also claims he sustained psychological injuries as a result of the accident which have resulted in concentration issues, irritability, anxiety, stress and depression, as well as uncontrollable and sometimes violent outbursts. Over time, his impairments have compounded and he argues that he is now CAT impaired as a result of the accident. KS sought benefits from TD pursuant to the SABs.

TD paid numerous medical and rehabilitation benefits to KS up to the $50,000 limit for non-catastrophic impairments. After a series of multi-disciplinary IEs TD determined that KS’s impairments were not CAT and denied any treatment beyond the limits prescribed in the Schedule. TD also denied KS’s claim for IRBs on the basis that he did not have a substantial or complete inability to work in his pre-accident occupation. TD further denied KS’s claim for ACBs and housekeeping on the basis that his service provider, his father W.S., did not suffer an economic loss and that neither benefit was available to KS 104 weeks after the accident unless he was deemed CAT. Lastly, TD denied 11 treatment plans covering various medical and rehabilitation strategies, on the basis that these benefits were not reasonable and necessary and that the limit for treatment had been exhausted.

KS disagreed with TD’s CAT determination and its other denials and submitted an application to the LAT.

Issues

1. Did KS sustain a catastrophic impairment pursuant to the Schedule?
2. Is KS entitled to an income replacement benefit in the amount of $185.00 per week for the time period from October 28, 2014 to date and ongoing?
3. Is KS entitled to an attendant care benefit in the amount of $6,000.00 per month for the time period of October 28, 2014 to date and ongoing?
4. Is KS entitled to a housekeeping and home maintenance benefit in the amount of $100.00 per week for the time period from October 28, 2014 to present and ongoing?
5. Is KS entitled to a medical and rehabilitation benefit in the amount of $2,070.00 for occupational therapy services recommended in a treatment plan submitted on October 13, 2016, denied by TD on October 20, 2016?
6. Is KS entitled to a medical and rehabilitation benefit in the amount of $24,212.20 for assistive devices recommended in a treatment plan submitted on December 12, 2014, denied by TD on March 3, 2015?
7. is KS entitled to a medical and rehabilitation benefit in the amount of $1,345.11 for physiotherapy?
8. Is KS entitled to a medical and rehabilitation benefit in the amount of $1,902.48 for chiropractic services?
9. Is KS entitled to a medical and rehabilitation benefit in the amount of $1,397.00 for occupational therapy?
10. Is KS entitled to a medical and rehabilitation benefit in the amount of $1,541.60 for other goods and services of a medical nature recommended in a treatment plan?
11. Is KS entitled to a medical and rehabilitation benefit in the amount of $1,215.29 for chiropractic services?
12. Is KS entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for other goods and services of a medical nature recommended in a treatment plan submitted?
13. Is KS entitled to payment in the amount of $617.46 for an orthopaedic mattress?
14. Is KS entitled to interest on any overdue payments of benefits?
15. Is KS entitled to an award under Ontario Regulation 664, R.R.O. 1990?
16. Is KS entitled to a medical benefit in the amount of $2,090.00 for medical marijuana?
17. Is KS entitled to a medical benefit of $1,717.50 for personal training and gym membership?

The parties were able to settle some disputes before the hearing and thus although the Tribunal heard evidence on all of the issues, for the purposes of this hearing, the Tribunal was only left to determine issues (i) through (iv) and issues (xiv) and (xv).

RESULT

1. The Adjudicator found that KS sustained a catastrophic impairment as a result of the accident.
2. The Adjudicator found that KS is not entitled to a post-104 IRB as he does not suffer a complete inability to work in his pre-accident employment. While I find KS is entitled to an IRB for the post-accident period, no amount is payable. TD’s claim for repayment is denied.
3. The Adjudicator found that KS is not entitled to ACBs or housekeeping for the period in dispute as he has not demonstrated that his service provider suffered an economic loss.
4. The Adjudicator found that an award in this matter is not appropriate as TD did not unreasonably withhold or delay payment of benefits. Accordingly, as no benefits are overdue, no interest is payable.

ANALYSIS

Catastrophic Impairment

In order to be determined CAT under the Schedule, KS must prove, on a balance of probabilities, that the impairments he suffered as a result of the accident have resulted in at least one Class 4 (Marked) Impairment in any of the four domains outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment due to a mental or behavioural disorder.

The Adjudicator reviewed the medical evidence and the law. The Adjudicator found that on a balance of probabilities that KS has sustained at least one Marked Impairment due to mental or behavioural disorders he sustained as a result of the accident. Accordingly, KS has sustained a catastrophic impairment as defined by the Schedule and is therefore entitled to the extended policy limits. There is no doubt that getting hit by a motorcycle while riding his bike constituted a traumatic event for KS and for his father, WS who arrived at the scene to find his son unconscious and covered in blood. The Adjudicator found their testimony to be credible and consistent. The designation of CAT will open up KS’s treatment limits to ensure that he receives regular psychological treatment in order to assist him in his recovery.

Income Replacement Benefits and Repayment Claim

As a result of the accident, KS claims entitlement to an IRB for two periods of time: post-accident and up to 104 weeks, as well as post-104 weeks and ongoing. In order to receive an IRB, KS must meet two separate tests, outlined below. On the evidence, KS is entitled to an IRB for the initial period up to 104 weeks, however payment is not due as a result of the IRB already being paid by TD. KS is not entitled to an IRB for the post-104 week period.

Post-Accident and up to 104 weeks

In order to receive payment under s. 5(1) of the Schedule for the initial period of time post-accident and up to 104 weeks, KS must prove that he was employed and that, as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident employment. On the evidence, the Adjudicator found that KS would have had a substantial inability to perform the essential tasks of his pre-accident employment during this period.

However, while KS is entitled to the IRB for this period, no payment from TD is due. KS’s claim for an IRB for this period is frustrated by a repayment claim from TD. As mentioned, the evidence provided indicates that TD paid KS an IRB in the amount of $13,142.60 up to February 10, 2017, with additional payments to February 24, 2017. TD argues that this payment was made in error and claims repayment, providing evidence of correspondence requesting same.

Post-104 Weeks to date

In order to receive payment under s. 6(2) for the post-104 week period, KS must prove that he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

On review of the evidence the Adjudicator found that KS does not meet the test for eligibility for an IRB post-104 weeks. KS is now physically capable of doing many things and has been capable for some time. The surveillance evidence provided that he can drive safely, that he can look over both shoulders with uninhibited range of motion, he can squat and retrieve things, bend at his knees and waist and use both hands to wield tools. While his adaptation and social domain impairments may affect his ability to work in a group, as part of a team or with the public on a psychological basis, his pre-accident employment consisted largely of solitary, independent physical activities: driving around looking for scrap metal, selling it, fixing bikes and cars on his own, etc. and therefore there is no reason why he could not successfully return to these pursuits on a part-time or graduated basis, as he did prior to the accident.    For these reasons KS is not entitled to an IRB for the post-104 week period to date.

Attendant Care Benefits

In order to receive ACBs post-104 weeks after his accident, KS must be CAT and establish that the services provided by his father, W.S., were reasonable and necessary. Further, KS must establish that the expenses were incurred:

1. KS needs to have received the goods or services related to the expense;
2. KS has to have paid the expense or promised to pay the expense; and,
3. KS’s father must have provided the services in the course of his employment, occupation, or profession or sustained an economic loss as a result of providing the services.

While KS is CAT, the Adjudicator found on the evidence that KS has failed to prove that the services were incurred and that his father sustained an economic loss. Further, on these facts, the deemed incurred provision under s. 3(8) of the Schedule does not apply.

Housekeeping and Home Maintenance

KS is CAT impaired, however based on the evidence that KS is not entitled to payment in the amount of $100.00 per week for housekeeping and home maintenance, as it is not reasonable and necessary.

Section 23 of the Schedule limits payment of housekeeping and home maintenance to persons who are determined to be CAT impaired. In order for KS to receive payment for housekeeping and home maintenance, he must be CAT and also prove that the benefit is reasonable and necessary, pursuant to ss. 14-17 of the Schedule.

The same largely similar findings for housekeeping and home maintenance were made as for ACBs, above. KS makes only one claim for this benefit for the period May 28, 2017 to Nov 28, 2018, on the basis that his father, W.S., was completing the housework during this time. While KS’s impairments are CAT on the basis of his psychological impairments, the period of time contemplated by the OCF-6 is nearly four years removed from the accident, when KS no longer had the same physical restrictions he did post-accident. By all accounts, KS was mobile and helping with household chores by this time. In the OT Report of Ms. Munir, KS self-reports that he had resumed much of the housekeeping he did pre-accident. The surveillance evidence from 2018 revealed an agile young man capable of vehicle repairs. I do not find that the evidence suggests that W.S. was forced into extra housework as a result of KS’s inability to contribute. In addition, I find that W.S. has not provided proof of an economic loss during this period of time to support the reasonable payment of this benefit.

On this basis, KS is not entitled to the housekeeping and home maintenance benefit as it is not reasonable and necessary, despite his CAT designation.

Award

On the facts and evidence before the Adjudicator found that an award is not appropriate.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.