Catastrophic Impairment Decision at the License Appeal Tribunal
Singer Kwinter had recent success at the License Appeal Tribunal (“LAT”) with respect to a Catastrophic Impairment decision. Following a seven-day hearing held in-person over the months of October and December 2019, the LAT in Z.K. and Allstate Insurance Company Limited[1], determined that our client had sustained a Catastrophic Impairment as a result of his motor vehicle accident of June 6, 2014.
Our client sustained injuries and symptomatology from the June 2014 motor vehicle accident, which over time worsened and caused his condition to deteriorate. In 2017, he made an Application for Determination of Catastrophic Impairment and underwent a series of assessments with Omega Medical Associates, which concluded that he met the Catastrophic Impairment designation. Allstate Insurance Company (“Allstate”) disagreed with this finding. The matter proceeded to the LAT to determine if our client sustained a Catastrophic Impairment pursuant to the Statutory Accident Benefits Schedule[2].
Singer Kwinter presented evidence and testimony of our client, his wife, children, and expert evidence of two psychologists and an occupational therapist, who had all assessed our client and generated expert reports.
Allstate aggressively defended its position claiming that our client was not a credible witness, and that he was “malingering and feigning” his injuries. In doing so, Allstate relied on surveillance video of our client from 2014, and expert reports from their occupational therapist and psychologist. Allstate’s psychologist was also called to the hearing to given oral evidence.
In his “Reasons for Decision and Order”, Mr. Sandeep Johal, Vice Chair of LAT, found that the surveillance did not impeach our client’s credibility. Mr. Johal was of the view that the surveillance video depicted a moment in time and was not illustrative of the overall picture of the applicant’s true condition. It was noted that our client’s condition could have worsened over time.
What was most interesting about this case was that Allstate’s psychologist strongly believed our client was malingering because objective data from her assessment indicated to her that our client was over-reporting pain. To do so, Allstate’s psychologist used, what our experts stated were inappropriate tests to measure our client’s credibility and clinical status for pain, while also moving the “goal post” in an industry accepted test to interpret test scores. Notably, Allstate’s psychologist made these findings despite our client displaying similar functional difficulties in the spheres of Activities of Daily Living; Concentration, Persistence and Pace; and Adaptation in work or work like settings, during his assessments with both Allstate’s occupational therapist and Omega Medical Associate’s occupational therapist.
Singer Kwinter effectively litigated this matter on behalf of our client resulting in the LAT; (i) according less weight to Allstate’s psychologist’s reports/findings; (ii) determining our client does meet the Catastrophic Impairment threshold; and (iii) determining our client has a class 4-marked impairment in the domains of Activities of Daily Living; Concentration, Persistence and Pace; and Adaptation in work and work like settings. To read the full “Reasons for Decision and Order” please click on the link below.
Now that out client has been found to meet the Catastrophic Impairment threshold, thereby having access to significant more funding for treatment, Singer Kwinter will continue to advance his case and ensure he receives the compensation he very much deserves.
[1] 17-006929_AABS_Decision
[2] O. Reg. 34/10: STATUTORY ACCIDENT BENEFITS SCHEDULE – EFFECTIVE SEPTEMBER 1, 2010
