Volume. 4 Issue. 21 – May 27, 2020

CAT Confirmed – Tomec Applies but No HKB

We’ve taken a 100+ paragraph CAT decision and distilled it down to its most salient features. This decision raised causation, credibility of the assessors, the application of Tomec and the ‘incurred’ requirements. The Tribunal found that the Applicant met the CAT definition due to the mental and behavioural impairments with the Applicant being found to have suffered a marked impairment in 3 of the 4 domains. An interesting observation, this case would have met the new post-June 2016 CAT definition.

CAT Confirmed – Tomec Applies but No HKB – Injured in a 2012 MVA, the Applicant in 18-004113 v Pafco, sought a CAT determination in July 2016 based upon Criterion 8 mental and behavioural impairments. In reply, the Respondent contended that the Applicant did not suffer a marked impairment in any of the required domains, and further that any issues facing the Applicant related to an earlier 2006 MVA.

The Tribunal, while agreeing that the Applicant suffered from a similar physical impairment and some symptoms of depression, noted that he was nonetheless able to function in his daily activities. Following the 2012 accident however, “the applicant is seriously limited in walking, sitting, standing and he cannot work seven years post-accident. In my view, this supports that the 2012 accident exacerbated the applicant’s pre-existing physical impairment and caused the resulting psychological impairment.”

Addressing the degree of impairment, the Tribunal firstly found that the Applicant had a marked impairment in activities of daily living. Agreeing with the Respondent that “on paper, its CAT assessors have more credentials”, the reports produced by the IE assessors “were not as thorough, were inconsistent and did not give a fulsome picture of the applicant’s post-accident functional limitations when compared to the rest of the evidence before me.” The Tribunal concluded that “when a comparison of the applicant’s pre and post-accident activities is undertaken, it is obvious that he is significantly impeded from carrying out the majority of his pre-accident activities of daily living in any meaningful way.” While not required, the Tribunal further considered and determined there to be marked impairments in the domains of social functioning and adaptation.

The Tribunal then considered the Applicant’s claim for a housekeeping benefit, denied by the Respondent in March 2012 on the basis that his policy did not include optional benefits and that he had not been deemed CAT. The Tribunal, finding the Court of Appeal decision in Tomec to be directly relevant to the case at hand, sought submissions in this regard. Agreeing with the Applicant, it was found that “the facts relating to the denial of the housekeeping benefit in Tomec are practically identical to this case”. In this matter, the Applicant “could not dispute the denial of his entitlement to the housekeeping benefit in March 2012 because he had not been deemed CAT and did not apply for CAT status until July 5, 2016, three years after the benefit was denied.”

The Tribunal found that “the evidence overwhelmingly supports that the applicant has a substantial inability to complete his housekeeping and home maintenance tasks.” He was therefore entitled to the housekeeping benefit of $100 per week, upon proof that the expense has been incurred. However, given there was no evidence satisfying the incurred criterion, the Applicant was not entitled to payment of past housekeeping benefits to date.

This Case Is Not Tomec

This Case is Not Tomec – In 18-012227 v Co-operators, the Tribunal considered whether a 2017 settlement regarding a November 2015 MVA, reached at a case conference, barred the Applicant from claiming ACB in the current 2018 Application. The Tribunal noted that the SDN clearly stipulated that the settlement was for “Any and all claims for attendant care benefits from July 5, 2016 to date and ongoing” and the Release “releases all aforesaid claims in respect of the following benefits: i) Attendant care benefits from July 5, 2016 and ongoing, as described in Licence Appeal Tribunal File No. 17-005144”. In addition, the SDN further indicated, “If you feel your injuries may be catastrophic, you should contact your medical and legal advisors.”

In response, the Applicant submitted that $0 was paid for ACBs and he would never have settled the ACBs for $0. The Respondent has indicated that the Applicant had acknowledged that ACBs had never been incurred by him and that he applied to the Tribunal to preserve a limitation period in the event that he was determined to be catastrophically impaired. The Tribunal however noted, “Before the Tomec decision, the applicant would have had to apply to the Tribunal to preserve the limitation period for benefits he may have been denied even prior to being deemed catastrophically impaired. However, this case is not Tomec.”

Further, despite the 2017 Application indicating that ACBs were being claimed from “July 5, 2016 and ongoing”, the Applicant submitted that he had not been found to have suffered a catastrophic impairment, had not sought such a designation and, accordingly, ACBs beyond November 19, 2017 were not claimed and therefore not at issue before the LAT.” The Tribunal found no merit to this submission, as “the Application clearly claims ACBs past two years from the date of the Accident. The applicant did not limit his claim for ACBs up until November 19, 2017.”

Statute Barred as Hours Become Days

Hours Become Days – In 19-005097 v Travelers, the Applicant filed an Application on Friday, May 10, 2019, between 6:18 p.m. and 6:20 p.m. for two Treatment Plans which were denied May 10, 2017. As a result, the application was deemed to have been received Monday, May 13, 2019, the next business day. The Applicant argued that he was only outside of the limitation by a matter of hours, however the Tribunal held the May 13, 2019 date as appropriate, thus outside of the limitation period. The only remedy would potentially be found under s.7 of the LAT Act. Referencing an earlier Tribunal decision that found the LAT did not have jurisdiction to extend limitation, that decision was found to be “an overly mechanical interpretation…(and) the distinction drawn in M.N. between the Act and the regulation too narrow an interpretation of the power granted to the Tribunal under the LAT Act, and fails to take into consideration the overall purpose and scheme of the Insurance Act, the Schedule and the LAT Act.”

Despite the actual filing being under 1.5 hours late, there was found to be no bona fide intention to apply in time, as there was no “explanation as to why he waited until the very last day of the two year limitation period to file his application, and only after 5:00 p.m. on that day.” As the length of delay – two days – was in favour of extending limitation, and prejudice considered a non-issue, the Tribunal then considered the merits. After a most detailed assessment of the medical evidence, the injuries sustained were found minor and subject to the MIG, therefore “there is no merit to his appeal”. Therefore, there was no extension of the limitation period further to the LAT Act.

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