Applicant shows marked impairment in functional areas due to a mental or behavioural disorder - Applicant and TTC Insurance Company Limited, LAT 17-002561 2018 CanLII 8101

April 16, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and TTC Insurance Company Limited, LAT 17-002561 2018 CanLII 8101

Date of Decision: January 19, 2018
Heard Before: Adjudicator Catherine Bickley

CAT IMPAIRMENT: Applicant fails to show >55% WPI; applicant shows marked impairment in functional areas due to a mental or behavioural disorder; applicant is CAT impaired

The applicant was in an accident involving a bus on March 6, 2012 which fractured her left ankle and both knees. She was taken to the hospital by ambulance where she had surgery for her broken bones and stiches for a cut on her head. She stayed in the hospital for eight days before being sent home with casts on both legs.

At the time of the hearing, the applicant still complained of pain throughout her lower body, and she claims ongoing cognitive and memory impairments. She states that her psychological issues prevent her from doing the activities that she enjoyed before the accident.

The applicant has applied twice to the TTC for CAT impairment determination, once on a claim of WPI of 55% or more, and once on marked mental of behavioral impairments. TTC has denied both applications.

Issues:

1. Has the applicant sustained a catastrophic impairment because as a result of the March 6, 2012 accident she has a combination of impairments that results in 55% or more impairment of the whole person (“WPI”) when evaluated in accordance with the Guides as of November 13, 2014?
2. Has the applicant sustained a catastrophic impairment because as a result of the March 6, 2012 accident she has one or more class 4 (marked) impairments due to mental or behavioural disorder when evaluated in accordance with Chapter 14 of the Guides as of June 21, 2016?
3. Is the applicant entitled to the cost of a psychiatric paper review in the amount of $2,200.00 recommended by New Age Specialized Assessments in a treatment plan (OCF-18) submitted to TTC on March 16, 2016 and denied on April 4, 2016?
4. Is the applicant entitled to interest on any overdue payment of benefits?

Results:

1. The applicant is not catastrophically impaired under s.3(2)(e) of the Schedule as of November 13, 2014.
2. The applicant is catastrophically impaired under s.3.(2)(f) of the Schedule as of June 21, 2016.
3. The applicant is not entitled to the cost of the psychiatric paper review.
4. The applicant is not entitled to interest because the March 16, 2016 OCF-18 is not payable.

OVERVIEW OF THE GUIDES

The Adjudicator reviewed the Schedule and the criteria used to establish CAT designation, noting that the onus is on the applicant to prove they are CAT impaired as a result of the 2012 accident. The Adjudicator reviewed the extensive medical evidence and the law.

After reviewing all of the medical evidence the Adjudicator determined that the appropriate rating for physical impairment is 29% and for mental and behavioural impairment is 18 to 24%.  When these ratings are combined in accordance with the Guides, the total WPI is 42 to 46%.   This is lower than the 55% WPI required by s.3(2)(e) of the Schedule.   Accordingly, the applicant has not established that she is catastrophically impaired under s.3(2)(e) of the Schedule.

The Adjudicator then turned to the second claim, is the applicant CAT impaired as a result of a marked or extreme impairment in one of the four functional areas due to a mental or behavioural disorder?

On the basis of the evidence the Adjudicator found that the applicant has a marked impairment in two areas – social functioning and adaptation. As a result, she is catastrophically impaired under s.3(2)(f) of the Schedule as of June 21, 2016.     

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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.