[43] I find Omega’s catastrophic assessment conducted on behalf of the applicant more compelling than the respondent’s because they take into account pre-accident medical records, the mother’s reported changes in her son, and generally provide a good analysis of GOS rating and its applicability to this applicant.

[44] Omega’s assessment thoroughly takes into consideration the applicant’s pre and post-accident abilities, changes in rendered care and changes in medical needs and treatments. Those are determining factors for analyzing the GOS ratings which are largely based on dependencies for daily support. The entire assessment takes a comprehensive approach to both the applicant’s mental and physical limitations, the changes that occurred post-accident and how they relate to his dependencies. The report compares the findings and current symptomology to the GOS ratings and takes into account dependencies for someone of his age.

[45] Dynamic Functional Solutions’ assessment failed to address the mother’s concerns and reports of the post-accident changes in her son. They failed to analyze or comment whether those concerns and changes were as a result of the accident. The assessors failed to analyze how a GOS rating is applicable to a minor and whether the applicant meets that rating.

[46] It is also unclear whether the assessors understood which catastrophic determination the applicant was applying for. The occupational therapist organizes her report as if she was providing feedback on a catastrophic impairment under criterion 8 marked impairment and the paediatric assessor concludes that he cannot assign the applicant an absolute percentage as if he is commenting on criterion 7 whole person impairment. Neither of which are the basis for the applicant’s application for catastrophic determination. Significantly, none of the in- person assessors explicitly state that the applicant does not meet the catastrophic definition under the GOS ratings.

[47] Many of the respondent’s assessors acknowledge medical changes in the applicant, both observed and in review of the medical records, but fail to address whether they are caused by the accident or not. The paediatric and neuropsychological assessors conclude that the accident may have exacerbated the applicant’s impairments but it was difficult for assessors to qualify them.

[48] Also the medical documents reviewed by the insurer’s assessors did not take into account the medical records from [the local clinic] These medical records cover a large amount of the pre-accident history recorded by the applicant’s treating physicians from June 2012 until February 2015. Without these records it would be very difficult for the respondent’s assessors to have a complete picture of the applicant’s pre-accident medical history.

[49] The respondent also argues a causation issue. They claim because their assessors were not able to conclude the accident had exacerbated the applicant’s pre-existing condition then the applicant should have to meet the “but for” test for causation. But I note that their initial assessors concluded that the accident did exacerbate the previous impairments and in fact, the respondent paid out the non- catastrophic benefit limits.

[50] As stated previously, the evidence established that applicant’s condition worsened after the accident to a significant degree relative to his pre accident impairments. Both the applicant and respondent presented case law to support their position on whether the applicant needs to meet a “material contribution” or “but for” test regarding causation. In my opinion, as the applicant’s condition worsened to a degree that rendered him catastrophically impaired, he meets either causation test, whether a ‘but for’ or ‘material contribution’.


[51] Overall, the applicant provided sufficient evidence that his pre-accident impairment, abilities and limitations were worsened by the accident and that the brain injury caused by the accident contributed significantly to his medical and behavioural changes and his needs. Although he had many challenges prior to the accident he seemed to be coping at school and improving. The evidence showed that his injuries as a resulted of the car accident caused dramatic changes in his life. This caused an increase of daily supports and dependencies to a degree that meets the definition of catastrophic impairment. .


[52] I order that the applicant be deemed catastrophically impaired.

Released: January 12, 2018