May 11, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Were the CAT impairments due to the accident and were costs ‘incurred’ - Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706
Date of Decision: March 15, 2019
Heard Before: Madam Justice H.M. Pierce
ENTITLEMENT TO BENEFITS - was applicant CAT impaired due to car accident; is applicant entitled to CAT benefits; did insurer unreasonably withhold benefits; did insurer take unreasonably long to deliver CAT assessment; applicant makes case for CAT impairment
Ms. Pucci was in a car accident in June 2013 in Thunder Bay. She sought a declaration of CAT impairment due to a mental or behavioral disorder and continued entitlement to IRBs after the Post 104-week mark of the accident. Wawanesa paid the non-catastrophic limits but denied that Ms. Pucci suffered a CAT impairment as defined by the SABS. Ms. Pucci has a history of illness and anxiety and depression.
Wawanesa did not initially contest the causation of the injuries as they had paid the non-catastrophic benefits under the policy but went on to challenge the causation for the first time when Ms. Pucci applied for CAT benefits. While Wawanesa’s experts concluded that Ms. Pucci suffered a marked impairment in all four domains of functioning they argue that the impairments are not a result of the car accident.
At issue in the trial was whether Ms. Pucci was CAT impaired as a direct result of the accident, and if so did Wawanesa deny or withhold the benefits unreasonably. Ms. Pucci and Wawanesa agreed at the beginning of trial that if Ms. Pucci was CAT impaired due to the accident then Ms. Pucci meets the test for Post 104 IRB.
Ms. Pucci was entirely successful at trial. The Honourable Justice Pierce, held that
- Ms. Pucci is CAT impaired
- Ms. Pucci was entitled to IRBs as a result of the CAT finding
- Ms. Pucci is entitled to housekeeping and home maintenance benefits
- Ms. Pucci is entitled to ACB of $6,000 month
Justice Pierce also found that Wawanesa unreasonably withheld/denied benefits. Her Honour notably stated that the 9 months Wawanesa took to deliver its CAT reports was excessive. The trial judge found that in this case taking 9 months to deliver CAT reports all while expecting Ms. Pucci to fund her own care during that time was unjust.
Justice Pierce was particularly clear in her decision with respect to the rejection of Wawnesa’s definition of “incurred” and Wawanesa’s unreasonable withholding of benefits,
Justice Pierce stated at para 108 of her decision
“… such an interpretation would encourage insurers to delay payments to insured in order to make the argument that expenses covered by a policy had not actually been incurred. Justice Pierce exercised her discretion under subsection (3)(8) of the SABS, as they then were, and held that Wawanesa had unreasonably denied Ms. Pucci’s benefits and deemed all outstanding expenses to have been incurred, even though it was agreed that Ms. Pucci had not actually incurred all of the expenses claimed.
Ms. Pucci also submitted that Wawanesa’s argument on causation should be Estopped by conduct, and that Wawanesa had waived it’s right to dispute causation. However, because Her Honour found that Ms. Pucci met the “but for” test, it was unnecessary to consider the arguments of Estoppel and Waiver.
Wawanesa appealed the “unreasonable delay” provision. You can read the full decision here.