The Licence Appeal Tribunal’s recent decision in Dahi v. Certas Home and Auto Insurance Company 2023 ONLAT 21-010975/AABS – A (“Dahi v. Certas”), demonstrates that while the SABS offers consumer protections for individuals, the decisions of the Tribunal “must be supported by evidence.”
Motion
Dahi v. Certas relates to a motor vehicle collision on January 29, 2015, where the applicant, Ms. Dahi failed to stop for oncoming traffic, and struck the vehicle ahead of her in a rear-end style collision. Following the accident, Ms. Dahi filed an OCF-19 for a Catastrophic Impairment Determination pursuant to Criterion 7, which was subsequently denied by Certas Home and Auto Insurance Company (‘Certas’). A preliminary motion was raised by the Applicant following the commencement of the hearing, in which the Applicant attempted to amend the original OCF-19 so that it reflected a CAT determination under Criterion 8. In so doing, Ms. Dahi attempted to alter the parameters of the hearing such that it would include a determination for Catastrophic Impairment under both Criterions 7 and 8. As the Applicant moved to amend the OCF-19 after the commencement of the hearing, the Tribunal acknowledged it had no jurisdiction to adjudicate the issue under Criterion 8 as the Respondent had been deprived of sufficient time to respond and deny the claim pursuant to Criterion 8.
With the Applicant’s motion dismissed, Adjudicator Adamidis was asked whether Ms. Dahi had sustained a catastrophic impairment pursuant to Criterion 7, and whether the applicant was entitled to the cost of a CAT assessment and interest.
Has the applicant sustained a catastrophic impairment?
In considering whether Ms. Dahi was catastrophically impaired under Criterion 7, Adjudicator Adamidis relied upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the ‘Guides’). According to the Guides, an Applicant has sustained a catastrophic impairment when the accident causes impairment or a combination of impairments which results in “a 55% or more whole person impairment (‘WPI’) rating.”
Following the accident, Ms. Dahi’s family doctor, Dr. Marmor, ordered MRI investigations of the Applicant’s neck in an effort to determine the scope of her neck injuries flowing from the subject accident. This imaging found mild degenerative changes through Ms. Dahi’s neck, without any significant pressure on the spinal cord, thecal sac, or exiting nerve roots. However, Ms. Dahi continued to experience a degenerative condition around this time which had developed by October 12, 2018, into a significant spinal cord compression which required subsequent surgical decompression.
The cause of Ms. Dahi’s spinal cord compression therefore remained at issue before the Tribunal. Two contradictory interpretations were provided by two orthopedic surgeons: Dr. Joseph Kwok and Dr. Greg Jaroszynski. Dr. Kwok opined that both Ms. Dahi’s musculoskeletal complaints of back and neck pain had developed as a result of the accident, but only indicated reasoning for the latter. His reasoning was grounded on the premise that Ms. Dahi had not experienced neck and back pain prior to the accident.
Although Dr. Jaroszynski did not produce a responding Insurer’s CAT Report, he offered a differing opinion as to the cause of Ms. Dahi’s alleged injury complaints. He maintained that while Ms. Dahi had sustained strain and sprain injuries as a result of the accident, the physical impairments attributed to the spinal cord compression were a result of degenerative changes and were not due to the accident.
Unlike Dr. Kwok, Dr. Jaroszynski’s testimony and opinion on the musculoskeletal issues was supported by the further evidence beyond Ms. Dahi’s own representations, such as the MRI imaging finding. In his analysis, Dr. Jaroszynski raised the findings from diagnostic imaging completed two weeks after the accident, which showed no evidence of trauma. Dr. Jaroszynski furthered that most spinal stenosis is attributed to degenerative changes to the spine. Evidence that Ms. Dahi continued to work until her surgery in 2018 corroborated Dr. Jaroszynski’s testimony and findings. It was evident from the medical record that Ms. Dahi’s physical impairments increased following her surgery, and thereby prevented her return to work.
Following a review of the evidence Adjudicator Adamidis concluded that Ms. Dahi’s complaints of spinal cord compression were musculoskeletal impairments were caused by degenerative changes and were therefore unrelated to the accident.
Is the applicant entitled to a CAT assessment and interest?
As the musculoskeletal issues were not attributable to the accident, Adjudicator Adamidis determined that Ms. Dahi was not entitled to the cost of a CAT Assessment.
Given the lack of benefits, the applicant was also not owed interest.
In the alternative, Applicant’s counsel attempted to argue that the Tribunal should fulfill its consumer protection mandate and allocate extraordinary weight to Ms. Dahi’s hearing testimony. While Adjudicator Adamidis agreed that the SABS endorsed a consumer protection mandate, he maintained that the determinations of the Tribunal must continue to be supported by the evidence.
Takeaways
Dahi stands to affirm the principle that an assessment of catastrophic impairment requires an Applicant to provide evidence to substantiate that any alleged impairments were in fact caused by the accident. It was apparent that in the circumstances of Dahi v. Certas, the causal evidence which might have tied Ms. Dahi’s injuries to the subject accident were conspicuously absent.
If you have a a question about this decision, please contact the co-author and one of the lawyers on the file, Joshua Edmunds ([email protected]).
