Written By: Brandon Pedersen, Associate, and Avery Kavanaugh, Articling Student
8 Minute Read
McLeish Orlando LLP was recently successful in obtaining a catastrophic designation for a client at the License Appeal Tribunal.
The recent decision at the Licence Appeal Tribunal (the “LAT”) provides a comprehensive ruling on the Applicant’s claim for statutory accident benefits. The decision highlights McLeish Orlando’s effective advocacy and commitment to securing fair outcomes for accident victims.
Facts
The Applicant was involved in a motor vehicle collision on January 29, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule (the “SABS”). The Applicant was denied benefits by Security National Insurance Company (“the Respondent”), and applied to the LAT for resolution of the dispute.
The Applicant sustained a small bowel injury, an inter-abdominal hemorrhage, a fractured right ulna, a dissection of the bilateral cervical internal carotid arteries, and a possible pulmonary contusion. He was also diagnosed with a possible concussion.
Issue
The issues before the LAT included:
- Has the Applicant sustained catastrophic impairment under Criterion 7 and/or 8?
- Is the Applicant entitled to post-104 Income Replacement Benefits?
Procedural Issues
There were several procedural issues that the Tribunal addressed, including the following:
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Applicant’s Attendance at an Insurer Examination (“IE”)
The Respondent asked the Tribunal to stay the proceedings and compel the applicant to attend another s.44 IE, arguing it was needed after receiving Dr. Shahmalak’s rebuttal report. The Applicant opposed, noting the request was unreasonable, tied to a previously denied adjournment, and not required under the SABS. The Tribunal dismissed the motion, finding it lacked jurisdiction under s.55 to compel attendance, that the request was unreasonably late, and that the Respondent’s assessors had already addressed the relevant issues in a previous Order. The LAT concluded that further delay would unfairly prejudice the Applicant.
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Respondent’s Supplementary Document Brief
The Respondent sought to file a late supplemental brief containing the Applicant’s LinkedIn excerpts, recent certificates, and updated employment records, arguing they were relevant and not prejudicial. The Applicant objected, claiming the late disclosure was akin to surveillance and procedurally unfair. The Tribunal allowed the documents, finding them relevant and already within the Applicant’s knowledge, but ruled that their late service would affect the weight given to them, with the parties free to address this in closing submissions.
Analysis
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The Applicant sustained a CAT impairment under Criterion 7
To qualify under Criterion 7, the Applicant had to prove that he had a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole-person impairment (“WPI”) threshold. The Applicant’s experts assessed him at 61% WPI, while the Respondent’s assessors assed him at 41-45%.
The Tribunal largely preferred the Applicant’s assessors where their findings were consistent with medical records and firsthand examinations, and rejected parts of the Respondent’s reports because ratings were improperly assigned by the author of the Insurer’s Executive Summary, who never examined the Applicant. Further, an Insurer’s Assessor admitted during cross-examination that the assessment company had changed his WPI % ratings without his knowledge or consent.
Combining the accepted physical (52%) and psychological (10%) impairments, the Tribunal concluded the Applicant has a total 57% WPI, surpassing the 55% threshold, and therefore meets the CAT designation under Criterion 7. The LAT declined to provide a decision on Criterion 8 considering the Applicant’s success on Criterion 7.
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The Applicant has established entitled to post-104 IRBs
To qualify for post-104 Income Replacement Benefits (IRBs), the Applicant had to prove he was completely unable to engage in any suitable employment. The Tribunal found that the combined effect of his physical and psychological impairments left him incapable of performing meaningful work, including the jobs suggested by the Insurer’s vocational expert. His current part-time work at IKEA was heavily accommodated, inconsistent with his education and pre-accident employment, and not meaningful employment. The Tribunal preferred the opinions of the Applicant’s assessors over that of the Insurer’s assessors, who offered inconsistent and incomplete analyses. The LAT therefore found the Applicant met the post-104 disability test for income replacement benefits.
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The Applicant established entitled to an ACB in the amount of $889.21 per month from May 9, 2022 to date and ongoing
The Tribunal reviewed the Applicant’s claim for monthly Attendant Care Benefits (ACBs), and partially accepted the recommendations, finding $889.21 per month reasonable for assistance with complex meal preparation, bathroom/bedroom hygiene, coordination of ACBs, exercise supervision, and medication management, but rejected recommendations for mobility and bedroom supervision.
Conclusion
In conclusion, the LAT confirmed that the Applicant has sustained catastrophic injuries with severe ongoing limitations. McLeish Orlando LLP will continue to fight for the rights of accident victims. If you or someone you know needs assistance with applying for catastrophic impairment or income replacement benefits, or if you have had your rights denied by your insurance company, please contact the team at McLeish Orlando LLP to assist with your claim.
