Heather Pickin

The applicant sought a determination that he sustained a catastrophic impairment following a motor vehicle accident, along with entitlement to treatment plans for assistive devices and a mental/behavioural assessment.

The Tribunal assessed the applicant's whole person impairment (WPI) rating, weighing competing expert evidence on psychological impairment, neurogenic bladder, sexual dysfunction, and upper extremity impairment.

The Tribunal found a total WPI rating of 52%, falling short of the 55% threshold required for catastrophic impairment.

The Tribunal partially approved the treatment plan for assistive devices, granting funding for a bed, mattress, pillow, and related occupational therapy services, but denied the mental/behavioural assessment and a claim for a special award.

Interest was awarded on the overdue benefits.

This endorsement addresses the determination of reasonable legal fees for counsel representing a person under disability in an accident benefits claim.

The court had previously approved a global settlement of $1.3 million for the catastrophically injured applicant, Robert Jones, after initially declining a lower proposed settlement due to concerns about its adequacy and the absence of a proper management plan.

The primary issue in this endorsement was the reasonableness of the applicant's counsel's proposed contingency fee of 23% (or 26.57% by the court's calculation) of the settlement.

Applying the principles from Henricks-Hunter, the court found the contingency agreement was not fair when made and the proposed fees were not reasonable, considering the minimal risk assumed by counsel due to the undeniable catastrophic injuries, and the fact that the settlement achieved was at the low end of entitlement.

The insurer appealed the Arbitrator's finding that the insured sustained a catastrophic impairment, arguing the Arbitrator applied the wrong causation test.

The insured cross-appealed the denial of Non-Earner Benefits, Housekeeping, and Attendant Care Benefits.

The Director's Delegate held that the 'but for' test, not the 'material contribution' test, is the correct causation test in accident benefits cases.

The Delegate found the Arbitrator misapprehended critical evidence regarding both the catastrophic impairment and Non-Earner Benefits claims, and remitted those issues for re-hearing.

The denial of Housekeeping and Attendant Care Benefits was upheld as the Arbitrator reasonably found the expenses were not incurred.

The applicant sought statutory accident benefits following a 2010 motor vehicle accident, claiming catastrophic impairment, attendant care, housekeeping, and non-earner benefits.

The insurer argued the applicant's impairments were solely due to pre-existing rheumatoid arthritis.

The arbitrator found the accident was a material contributing factor to the applicant's catastrophic impairment, relying on expert medical and psychological evidence.

However, the claims for attendant care and housekeeping benefits were dismissed because the applicant failed to provide documentary evidence that her service providers suffered an economic loss.

The claim for non-earner benefits was also dismissed due to insufficient evidence comparing pre- and post-accident activities.

The applicant was awarded $3,100 for the cost of examinations.