In the recent decision of Tenuta v BelairDirect Insurance Company (2024 CanLII 123343), Adjudicator Adamidis determined that the applicant did not meet the criteria for catastrophic impairment under either of Criterion 7 and Criterion 8 of section 3.1(1) of the SABs.
Adjudicator Adamidis took issue with the impairment ratings provided by two assessors. In relation to Criterion 7, Dr. Patrick Quaid’s vision testing for diplopia was found to be inconsistent with the instructions in the Guides to the Evaluation of Permanent Impairment. Notably, Dr. Quaid’s method of testing failed to follow the prescribed arc perimeter, which would have shown no evidence of diplopia if applied correctly. Furthermore, Adjudicator Adamidis noted that the applicant’s diplopia was not a constant issue, as suggested by Dr. Quaid’s report, but rather an intermittent condition. Based on these discrepancies, Dr. Quaid’s 24% Whole Person Impairment rating for diplopia was rejected.
In his analysis of the psychiatric impairments, Adjudicator Adamidis also found flaws in the impairment ratings provided by Dr. Shahzad Shahmalak in the applicant’s Catastrophic Psychiatric Assessment Report. Dr. Shahmalak had concluded that the applicant was unable to live independently, but this was contradicted by evidence of the applicant’s ability to perform a number of daily activities. While it was acknowledged that the applicant’s self-care habits had changed post-accident, she was still able to manage basic daily living tasks. Furthermore, Dr. Shahmalak’s ratings regarding the applicant’s role functioning and social and recreational activities were deemed inconsistent with evidence showing that the applicant continued to maintain a thriving social life. Adjudicator Adamidis adjusted these ratings based on his own analysis, ultimately concluding that the applicant did not meet the criteria for catastrophic impairment under Criterion 7.
As for Criterion 8, Adjudicator Adamidis disagreed with certain aspects of Dr. Shahmalak’s assessment of the applicant’s social functioning. In contrast to Dr. Shahmalak’s assessment, which concluded that the applicant’s social functioning as a Class 4 Marked impairment, Adjudicator Adamidis found that Dr. Natasha Williams’ report, which was relied upon by the respondent insurer, provided a more accurate picture of the applicant’s abilities. Dr. Williams had assessed the applicant’s social functioning as a Class 3 Moderate impairment, based on the applicant’s ability to maintain friendships and familial relationships. Having found that the applicant only had two Class 3 moderate impairments , and no extreme impairments, it was found that she was not catastrophically impaired under Criterion 8. As a result, the applicant’s claim of accident-related Catastrophic impairment was denied.
The decision in Tenuta v BelairDirect Insurance Company reinforces that the determination of catastrophic impairment requires a comprehensive and consistent evaluation of how the condition impacts an individual’s daily life. This decision also highlights the importance of following the prescribed guidelines when assessing Catastrophic Impairment.
Duha Sikander is the author of this blog and an associate at the firm. If you have a question about this decision or you have a similar file, please contact Duha at 647-390-0175.
