February 03, 2021, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Z.K. v. Allstate Insurance Company Canada, 2020 CanLII 106429 (ON LAT)
Date of Decision: December 8, 2020
Heard Before: Sandeep Johal, Vice Chair
CATASTROPHIC INJURY: surveillance evidence captures but a moment in time; applicant’s assessors critical of Allstate’s examination methods and conclusions
ZK was injured in a car accident on June 6, 2014, and sought benefits pursuant to the SABS from Allstate who denied the claim. ZK appealed the decision to the LAT for resolution.
ISSUE IN DISPUTE
- Has Z.K. sustained a catastrophic impairment pursuant to the Schedule?
- Is Z.K. entitled to payment for a medical benefits recommended for chiropractic treatment and denied by Allstate on January 18, 2017?
- Is Z.K. entitled to payment of a cost of examination n the amount of $4,520.00 in a treatment plan for a catastrophic neuropsychological and triage assessment recommended by Omega Medical Associates denied by Allstate on June 7, 2016?
- Is Z.K. entitled to interest on any overdue payment of benefits?
- Z.K. sustained a catastrophic impairment as a result of the accident.
- The chiropractic treatment plan is not reasonable and necessary, therefore Z.K. is not entitled to payment.
- Z.K. is entitled to the cost of examination for a neuropsychological assessment.
- The triage assessment is not reasonable and necessary, therefore the applicant is not entitled to payment.
- Z.K. is entitled to interest in accordance with s. 51 of the Schedule on the overdue payment of benefits for the neuropsychological assessment.
In order to be considered CAT impaired pursuant to the Schedule Z.K. must prove on a balance of probabilities that the impairments he suffers from as a result of the accident have a combination of physical and psychological impairment ratings that result in a whole person impairment (WPI) of 55% or more when rated in accordance with the American Medical Association’s Guides; or in at least one Marked or Class 4 impairment, in any of the four domains as outlined in the Guides due to a mental or behavioural disorder.
The test to determine whether Z.K. has sustained a catastrophic impairment is a legal test and not a medical one.
Z.K. argues they sustained injuries and symptoms from the car accident that worsened and caused his condition to deteriorate. He applied for a Determination of CAT impairment undergoing a series of medical assessments which concluded that he indeed met the CAT Impairment designation. Z.K. relies on evidence of two psychologists, and OT, his wife and children. During his cross-examination, Z.K. testified that his back pain in 2014 after the accident was about a 7/10 in intensity and sometimes 10/10 in intensity and there are often times where he is disengaged from his family and walking off on his own. He testified that he tends to walk gingerly and on his own at times rather than together with the family.
Allstate disagrees with this determination and denied benefits. They defend their position claiming Z.K. is not a credible witness. Allstate relied on surveillance video and expert medical assessments from their psychologist and OT. Their psychologist attended the tribunal to give evidence.
Allstate relies heavily on the surveillance videos where Z.K. is seen driving a vehicle, attending a grocery store, taking items out of the shopping cart and placing them in the trunk of the car, as well as attending a park with his family where he was observed to ascend and descend stairs (with both hands on each side of the railings for support). He was further observed to bend at the waist, kneel and crouch and assist his grandchild down a slide.
Vice Chair Johal indicated that in his view, surveillance is at a moment in time and not illustrative of the overall picture of how Z.K. may really be. Although on days the surveillance took place he did not appear to be in distress as a result of his back pain or headaches Z.K.’s evidence of his self-report of pain intensity of 7/10 or 10/10 did not mean that he is unable to leave his home or is unable to walk. The surveillance evidence was taken three months after the accident and five years later, during the time of the treatment plans and his request for a catastrophic designation, his condition could have worsened.
Vice Chair Johal did not find the surveillance to be of assistance or indicative of whether Z.K.’s injuries rise or do not rise to the level of a catastrophic impairment as described in the Schedule. As a result he did not find the surveillance significantly impeached Z.K.’s credibility.
Allstate relied heavily on the evidence of their psychologist who believed Z.K. was malingering and over reporting pain. Allstate’s psychologist used what J.K.’s psychologists claimed to be inappropriate tests to measure credibility and interpret test scores. There was no consideration given to the fact that J.K. displayed similar functional difficulties across all other tests with both OTs.
On the basis of the evidence and testimony Vice Chair Johal preferred the evidence of J.K. and accorded less weight to Allstate’s psychologist. Vice Chair Johal determined J.K. meets the CAT impairment threshold.