Decision supports scrapping cat designations completely: Thomson Rogers' Matthew Sutton
This article was produced in partnership with Thomson Rogers Lawyers.
Mallory Hendry of Canadian Lawyer sat down with Matthew Sutton, associate at Thomson Rogers Lawyers, to discuss the implications of a recent case.
A recent decision out of the Ontario Licence Appeal Tribunal is evidence that insurance companies can’t use validity testing scores to successfully avoid a catastrophic designation – and also lends support to the idea that there shouldn’t be catastrophic designations at all, says Matthew Sutton, associate at Thomson Rogers Lawyers.
“It was one of those cases where both sides could agree we needed to have an adjudicator come to findings of fact,” Sutton says of Ratnam v. Primmum Insurance Company. “It was a tough case from a factual perspective in terms of connections and causation.”
The applicant, Jaganathan Ratnam, came to Thomson Rogers after a 2014 motor vehicle accident, having already been found catastrophically impaired from a previous accident in 2011 that left him barely conscious at the scene. He had received benefits from his insurer and had “fully and finally settled his benefit entitlement with respect to that accident,” the decision states. Ratnam was now seeking a determination that he has suffered a catastrophic impairment as a result of the most recent accident on the grounds that it had a major impact on his mental health. His psychiatrist had diagnosed him with severe depression, and Ratnam was let go from his place of employment shortly after the accident though it was unclear the termination was directly related to issues he experienced because of it.
Primmum Insurance Company’s position was that the applicant didn’t meet the test for catastrophic impairment set out in the June 2014 version of the Statutory Accident Benefits Schedule, or that if he did his condition flowed from the 2011 accident not the 2014 accident. Primmum further asserted that both the 2014 accident and Ratnam’s injuries flowing from it were minor.
“From our position, we have a client whose life has deteriorated from a mental and behavioural perspective and it’s absolutely clear that decline happened after the 2014 accident – but on paper, it was hard to understand where the lines of connection were,” Sutton says. “The adjudicator has to answer based on the way the case law is today: ‘but for’ the subject accident is this client catastrophically impaired?”
While it’s rare for someone to be found catastrophic multiple times, Sutton argues it shouldn’t be. From over a decade of insurance defence work before moving to plaintiff, Sutton knows that some insurance companies – and certainly some lawyers – take the position you can only be catastrophic once. But he points to a paragraph in the Ratnam decision where the adjudicator explains that a “finding of catastrophic impairment is a designation. Its effect is to make higher coverage limits available for treatment where necessary. For instance, a person found to be in a coma at the accident scene may make a speedy recovery with little or no lingering impairment and not need to access the increased funding. Equally the person may suffer severe debilitating impairments and need extensive treatment and care.”
That’s an important paragraph for the whole industry to see, Sutton says, because insurance companies need a completely different approach on finding applicants catastrophic: instead of chopping off their hand, so to speak, at the front door, they should give them the designation they deserve so they don’t have to spend time, money and effort fighting for access to increased funding.
“They deny right off the bat to prevent having to pay more funding when they should approve in the appropriate circumstances – even when there’s some lack of clarity – and focus on the treatment or services requested by the applicant, because there absolutely will be both times when it is needed and times when it is not needed,” Sutton says.
Thomson Rogers does a lot of brain injury work and concussions are a perfect example: some people are fine the next day or within a few weeks, while for other people it completely destroys their life cognitively and psychologically. Insurance companies might argue why have a catastrophic designation at all and Sutton’s answer to that is: exactly.
“Everyone should have accessibility up to $1M if they need it. There shouldn’t be a scenario where someone’s blocked off from obtaining the treatment they need to recover fully or reach maximum medical recovery.”
The use of psychometric validity testing to discredit an applicant’s evidence was another point of interest in the case. The applicant submitted that his psychological impairment fell within the definition of catastrophic impairment set out in s. 3(f) of the Schedule (as it was written at the time of the subject accident), which is an impairment resulting in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder. Ratnam had to be determined to suffer from impairment levels that “significantly impede useful functioning” in at least one sphere: 1) activities of daily living, 2) social functioning, 3) concentration, persistence and pace, and 4) deterioration or decompensation in work or work-like settings.
“A lot of times we review the assessments in support of a catastrophic impairment as a chair that stands on four legs,” Sutton says. “But our neuropsychiatrist, Dr. Anthony Feinstein, didn’t just find psychometric validity testing was one of many, he questioned whether it should be one of the legs of the chair at all in TBI cases.”
Dr. Karen Wiseman, neuropsychologist for the insurer, saw validity testing as the only leg of the chair: she felt it was critical to a determination, whether she expressly said it or not, because in her reports and in her evidence she said it completely prevented her from providing an opinion on whether or not the applicant was catastrophically impaired. In Sutton’s opinion, “that was her way of avoiding for her client providing a diagnosis or impairment reading that would be detrimental to their case.”
Though the adjudicator did find that the psychometric validity testing showed the applicant was exacerbating his injuries, they went on to accept Dr. Feinstein’s opinion and evidence because the doctor had seen Ratnam on two different occasions and documented a marked decline post-accident.
“That’s something I’d recommend to any plaintiff-side lawyer: have your client assessed at two-year intervals so if there is deterioration it will be captured by the same assessor,” Sutton advises.
Ultimately, the adjudicator sided with Sutton, finding Ratnam was catastrophically impaired in accordance with s. 3(2)(f) of the Schedule and that but for the 2014 accident he would not have sustained a catastrophic impairment. It was clear, the adjudicator wrote, that Ratnam was “a shadow of his former self.”
Sutton is happy with the outcome, noting both sides were being reasonable. He clearly saw the severity of his client’s mental and behavioural issues as connected to the subsequent accident, whereas the insurer understandably needed a more fulsome story to understand why being catastrophic in a separate accident and having validity test score issues were not definitive in denying him cat.
“Some would argue this was a case where the adjudicator recognized the strengths and weaknesses of both sides and come to a decision that was appropriate in the circumstances.”
Before joining Thomson Rogers in 2019, Matt exclusively in the area of insurance defence litigation for over a decade. Matt’s change in focus stems from his desire to help people receive the compensation they need to aide in their recovery. His practice focuses on personal injury litigation including motor vehicle accidents, slip & falls, fire loss and injury, product liability, and commercial host and occupier’s liability claims involving all levels of injury including catastrophic claims.
