Executive Summary: Key Legal and Evidentiary Issues

• The reasonableness of the Adjudicator’s findings under Criterion 6, particularly regarding double vision, peripheral neuropathy, and medication-related impairments, was challenged and found wanting.

• The sufficiency and fairness of the Adjudicator’s reasons, including whether all relevant expert evidence was properly considered, were central to the appeal.

• The rigid application of the AMA Guides by the Adjudicator was scrutinized, with the court finding the approach unduly strict and inconsistent with the Guides’ remedial purpose.

• The court assessed whether procedural fairness was breached during the LAT proceedings and found no such breach.

• The appropriateness of the Adjudicator’s factual findings under Criteria 6 and 8, and their impact on the catastrophic impairment determination, was a key issue.

• The outcome included quashing the LAT decision and ordering a new hearing before a different adjudicator, with costs awarded to the applicant.

Facts of the case

Nadine Wilson was seriously injured in a motor vehicle accident on August 17, 2016. She sought catastrophic impairment benefits from her insurer, Intact Insurance Company, under the Statutory Accident Benefits Schedule (O. Reg. 34/10), claiming significant physical and psychological impairments. After Intact denied her claim, Ms. Wilson applied to the Licence Appeal Tribunal (LAT) for a determination of catastrophic impairment. The LAT, following an extensive 11-day hearing, dismissed her claim, finding she did not meet the criteria for catastrophic impairment. Ms. Wilson’s subsequent reconsideration request was also denied by the same adjudicator.

Policy terms and criteria at issue

Ms. Wilson’s application was based on Criteria 6, 7, and 8 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Criterion 6 concerns physical impairments resulting in 55% or more whole person impairment (WPI). Criterion 7 involves mental and behavioural impairments combined with physical impairments to reach the 55% WPI threshold. Criterion 8 assesses marked or extreme impairments in specified areas of daily functioning. Ms. Wilson’s experts opined that she met or exceeded the thresholds under all three criteria, but the Adjudicator disagreed, assigning significantly lower impairment ratings.

Proceedings before the LAT and the main findings

The LAT Adjudicator found Ms. Wilson’s impairments did not reach the catastrophic threshold under any of the criteria. Notably, the Adjudicator assigned 0% impairment for double vision, peripheral neuropathy, and medication-related impairments under Criterion 6, and found only one marked impairment under Criterion 8. The Adjudicator’s approach was rigid, particularly in the application of the AMA Guides, and he failed to provide adequate reasons for preferring certain expert evidence over others, especially where objective testing supported Ms. Wilson’s claims.

Appeal and review before the Divisional Court

Ms. Wilson appealed to the Ontario Divisional Court, alleging errors of law, breaches of procedural fairness, and unreasonable findings by the LAT Adjudicator. The court found no breach of procedural fairness but identified unreasonable findings in the Adjudicator’s handling of double vision, peripheral neuropathy, and medication-related impairments. The court criticized the Adjudicator’s rigid interpretation of the AMA Guides and his failure to consider the entirety of the expert evidence, particularly when the evidence overwhelmingly supported Ms. Wilson’s claims in certain areas.

Outcome and ruling

The Divisional Court quashed the LAT’s decision and the reconsideration decision, ordering a new hearing before a different adjudicator. The court declined to make its own finding of catastrophic impairment, emphasizing the specialized and fact-intensive nature of such determinations, which are best left to the tribunal. The court also awarded Ms. Wilson fixed costs in the amount of $7,500, payable by Intact Insurance Company, as the successful party. The precise amount of benefits or monetary award to which Ms. Wilson may ultimately be entitled will depend on the outcome of the new hearing before the LAT.