Insurance Company’s medical experts support Plaintiff’s claim for CAT determination. Judge awards benefits retroactively, plus interest. DR v. Primmum Insurance, 2020 ONSC 3886
When proving the need for a Catastrophic Impairment Assessment, also known as a CAT determination, multiple types of assessments will be required. The case of DR v. Primmum Insurance, is a great example of how thorough and well documented assessments by qualified and experienced medical experts are important when the results are repeatedly questioned. In this case the Reasons for Judgment of Justice Sally Gomery were released on June 26, 2020. The case summary is as follows:
On April 24, 2004, DR was seriously injured when his motorcycle collided with an oncoming vehicle. Mr. R shattered his right tibia and fractured his neck and left ankle. He sustained multiple sprains and bruising. He also sustained a mild traumatic brain injury that gave rise to serious psychological and cognitive impairments and mood issues. In addition, Mr. R suffered from severe headaches, back and neck pain. In late 2004 he was diagnosed with post-concussion syndrome, headaches, major depression, post-traumatic stress disorder (PTSD) and an anxiety disorder. He was hostile to outsiders and was sometimes aggressive. Mr. R slept poorly and had flashbacks to the accident.
The Defendant, Primmum Insurance Co. (“TD”) paid both attendant care benefits and housekeeping and home maintenance benefits (“HKHM”) for the first 18 months after the accident. Attendant Care benefits were initially set at $1,163.00 per month and by late September 2005 they had been reduced to just under $70.00 per month.
On December 20, 2010 Mr. R applied to TD for a CAT determination.
TD responded with a letter to Mr. R denying that he had proved that he was CAT and advising that an assessment would be arranged by TD. TD retained Sibley and Associates (“Sibley’s”), who asked Dr. Howard Platnick to coordinate the CAT assessments. Dr. Platnick assembled a team of specialists, including psychiatric and neuropsychological assessments.
In his report Dr. Suddaby, Psychiatrist, retained by Sibley’s, stated that Mr. R has chronic pain experiences, he developed a major depressive episode, PTSD and panic disorder. He described how these conditions affected Mr. R’s everyday activities. He concluded that Mr. R had a marked impairment with respect to Adaptation to Work and Work-like Settings. Because he had a marked impairment in one realm of functioning, he met the criteria for CAT under subsection 2(2.1) clause (g) of the 1996 Statutory Accident Benefits Schedule.
Dr. Payne, the neuropsychologist retained by Sibley’s, also produced a report dated July 18, 2011, based on records reviewed and neuropsychological testing. She also concluded, like Dr. Suddaby, that Mr. R
had a marked impairment with respect to Adaptation to Work and Work-like Settings and was therefore CAT.
After receiving the reports of Drs. Payne and Suddaby, Dr. Platnick prepared a summary report to Sibley’s indicating that Dr. Payne and Dr. Suddaby had each concluded that Mr. R satisfied the criteria for CAT under clause (g). Although the handling adjuster, Ms. Palmer, recorded that Mr. R was “deemed catastrophic”, she neglected to share this information with Mr. R. In fact, on the contrary, she advised Mr. R’s wife, Mrs. BR, that she could not arrange for an assessment by an occupational therapist because Mr. R had not been deemed CAT. There was also a TD senior accident benefits analyst, Ms. Micor, in the Major Claims Unit (MCU), involved in Mr. R’s file. In an email to Sibley’s on August 16, 2011, Ms. Micor wrote that it did not appear that Dr. Suddaby had followed procedures mandated in the AMA Guides, as Mr. R’s main impairment seemed to be lack of motivation.
On August 19, 2011, Dr. Suddaby produced an addendum report and emphatically stood by his initial conclusion that Mr. R was CAT. Ms. Micor requested a further report from Dr. Platnick. Dr. Platnick testified that he received advice from Sibley’s that the criteria in clause (g) had changed due to a recent decision of the Divisional Court, Aviva Canada Inc. v. Pastore, that it was unreasonable for an assessor to conclude that a person was catastrophically impaired based on a marked impairment in only one of the four realms of functioning. Dr. Suddaby was aware of the Pastore decision when he drafted his supplementary report but noted, giving the conflicting caselaw, he had followed common practice when formulating his opinion. In his addendum report dated September 1, 2011, Dr. Platnick recast Dr. Suddaby’s conclusion to imply that Mr. R had a moderate impairment. Reading Dr. Platnick’s addendum as a stand-alone document, the reader might assume that Mr. R’s condition fell well short of the criteria for CAT. On September 5, 2011, Ms. Palmer wrote to Mr. R and advised that he did not meet the criteria of marked impairment.
In January 2012, Mr. R underwent further surgery to fuse his right ankle. Ms. Szydlik, adjuster for TD, was assigned conduct of the file as of October 2012. Justice Gomery found that Ms. Micor and Ms. Szydlik took no steps to revisit the question of Mr. R’s CAT status, even though he clearly met the criteria for CAT and further, that the Pastore case had been overturned in the Ontario Court of Appeal. “Instead, …they continued to seek opinions that might contradict or undermine the conclusion reached in 2011 by Drs. Suddaby and Payne.”
In November 2013, Ms. Szydlik sought further addendum reports from Drs. Suddaby and Payne based on updated medical records including Mr R’s ankle surgery. Both of the doctors responded that none of the records provided had any impact on their finding that Mr. R was CAT. TD asked the Sibley’s assessors at least one more time, in early 2014, to revisit their evaluation of Mr. R, recommending that the assessors watch video surveillance. Dr. Suddaby again declined to change his conclusion after watching the videos. Dr. Payne advised that she would only revisit her assessment if she were authorized to show the surveillance videos to Mr. R. TD did not follow up further with Dr. Payne. In a further addendum report dated January 21, 2014, Dr. Platnick noted that both Drs. Payne and Suddaby had each reiterated their finding that Mr. R had a marked impairment. He concluded that Mr. R “would achieve the threshold of catastrophic impairment as per the SABS…”
The medical evidence goes into extensive detail with respect to Mr. R’s cognitive and psychological impairments, anxiety and irritability as well as his functional limitations with respect to even the simplest of tasks.
In May 2015, Mr. R applied to TD for Attendant Care benefits and HKHM benefits retroactive to the date of his accident. The application was based on a January 2015 retrospective reassessment by Julie Cousineau, Occupational Therapist. TD accepted Ms. Cousineau’s calculation of allowable Attendant Care benefits as of November 8, 2014 and began paying Attendant Care benefits and HKHM expenses.
Therefore, the issues that remained at trial were:
- Should Mr. R be deemed CAT as of April 24, 2004;
- If so, is Mr. R entitled to Attendant Care benefits over and above the benefits already paid by TD from April 2004 to December 2010;
- If TD is required to pay these additional retroactive Attendant Care benefits, must it also pay interest on them.
The amounts that remain at issue at trial:
- Retroactive Attendant Care benefits claimed by Mr. R for the period April 24, 2004 to December 20, 2010, totalling roughly $106,000.00; and,
- Interest on these benefits for the same period, totaling approximately $2.1 million.
In summary Justice Gomery found that:
- As of April 24, 2004, Mr. R met the criteria for designation as CAT under clause (g) of s. 1(1.2) of the 1996 SABS, and that he has continued to be CAT ever since. [142]
- Based on Ms. Cousineau’s assessment and calculation of Mr. R’s attendant care and housekeeping needs, Mr. R was entitled to benefits as claimed, from April 24, 2004 to January 12, 2012, less any Attendant Care benefits previously paid by TD. [279] – [353]
- Mr. R is entitled to interest under s. 46(2) on all payments that TD has made to date for retroactive Attendant Care and HKHM expenses as well as interest on those additional benefits that it must pay as a result of this judgment. [379]