Volume. 9 Issue. 15 – April 30, 2025
Tribunal Confirms Four Class 4 Marked Impairments
The Tribunal this week weighs in on an Applicant’s claim for a CAT designation. Ultimately, the Tribunal preferred the approach and reasoning of the Applicant’s experts, with added emphasis on the flaws demonstrated by the Respondent’s team of experts.
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Respondent’s Experts Lose the Day – The Applicant Ortaugurlu, in 22-013392 v Aviva, sought a CAT designation as a result of injuries he sustained in an April 2021 MVA. It was his contention that he had sustained marked impairments in all four domains as measured in Criterion 8. For their part, Pembridge determined that he had in fact suffered but one marked impairment in Adaptation. Ortaugurlu had been determined to qualify for post 104 IRB and had consumed the entirety of the available non – CAT limits. Given the agreement as to a marked impairment under Adaptation, the Tribunal considered whether there were marked impairments in the remaining three realms, Activities of Daily Living (ADL), Concentration, Persistence and Pace (CPP) and Social Functioning.
ADL
Ortaugurlu’s Expert
The Tribunal agreed with Ortaugurlu’s expert, Dr. Steiner that Ortaugurlu suffers from a Class 4 marked impairment of his ADL function. It was found that “the testimony of the applicant was corroborated by his roommate… who testified the applicant is awkward, housebound and requires a great deal of cuing and support across numerous ADL functions. I find that the applicant was clear, specific, and reliable in his testimony regarding his pre- and post-accident ADL abilities.” The Tribunal was “persuaded by the evidence of the applicant’s psychological assessor Dr. Steiner because he provides information on an extensive range of ADL, incorporates the findings of his co-assessor, and provides reasoning and examples to illustrate his findings within each sphere of function.”
The Tribunal placed “significant weight on the assessments by Dr. Steiner because he provides extensive evidence in support of each of his ratings, met with the applicant multiple times, utilized a wide range of the applicant’s subjective reports, his co-assessor reports, the medical documentation, objective testing and demonstrated a non-defensive, balanced, and objective perspective under extensive cross-examination.” The Tribunal was not persuaded by Pembridge’s inference that errors in the criterion 7 report of Dr. Steiner carried over into the criterion 8 report. The Tribunal agreed with Pembridge and Dr. Steiner (on cross) that it appears some over-rating did occur in the criterion 7 report. However, there was no evidence that there was carry over into the criterion 8 report as no actual issues or errors were identified in the criterion 8 report.
Pembridge’s Expert
With respect to Pembridge’s expert, the Tribunal was “not persuaded by the evidence of Dr. Sharma. Dr. Sharma does not demonstrate the inclusion of input from multiple sources, in particular he does not draw on the report of co-assessor Mr. Kaplun when outlining reasoning for the ratings provided. In addition, Dr. Sharma does not review the component parts of the spheres of function and demonstrate analysis of the component’s independence, appropriateness, effectiveness, or sustainability. Finally, Dr. Sharma does not appear to incorporate his own mental health status exam and diagnosis into the review of the spheres of function and only provides the applicant’s reports and his physical capability observations as evidence of his reasoning for the rating in this domain.”
CPP
For Ortaugurlu
The Tribunal agreed with the evidence of Ortaugurlu’s assessors “because they draw on each other’s reports to paint a full picture of the applicant and the challenges he faces in CPP. Dr. Steiner opines that the applicant has trouble with his ability to attend, focus and concentrate which can be seen in his difficulty reading, having a conversation, watching television, and filling out paperwork… Ms. Rogozinsky, OT, in her collaborative report, highlighted frequency of errors as an area of concern in CPP… also highlighted the time to complete tasks due to reduced tolerance for activity and cognitive and emotional deficits, stating that everyday tasks now take longer.”
Pembridge’s Experts Again Fall Well Short
The Tribunal was “not persuaded by the evidence of Dr. Sharma who rated the applicant with a Class 3 Moderate impairment in the area of CPP. Within this domain, Dr. Sharma acknowledges his diagnosis of Chronic Pain Disorder with both psychological factors, and adjustment disorder with depressed mood and anxiety as he concludes on his rating. It is not clear how Dr. Sharma arrived at the rating of moderate impairment because he does not provide any examples to demonstrate his reasoning that the impairment is moderate opposed to mild or marked.”
Further, the Tribunal gave “minimal weight to the evidence of Mr. Kaplun, OT because he provided very little in the way of information regarding the applicant’s function in relation to CPP. I also note that while it was not in his report, he testified that the applicant is not functionally impaired, which is outside his scope of practice. Finally, throughout his testimony, I was left with the impression that Mr. Kaplun was attempting to undermine the credibility of the applicant while not making any direct findings or providing evidence for the credibility concerns being intimated.”
Social Functioning
“Marked” Confirmed
Once again, the Tribunal “agree(d) with the evidence of Dr. Steiner with regard to social function because he clearly contrasts pre and post accident social function with examples. Dr. Steiner opines that the applicant has experienced negative changes in his mood and temperament; feels distant from family, has lost touch with most friends; declines invitations; and has been affected by his inability to go out dancing at clubs… Ms. Rogozinsky in her assessment, cited by Dr. Steiner, highlights that the applicant was a social person pre-accident but that currently he avoids social interactions, does not go out as often and no longer leaves his home to socialize.”
Strike Three for Pembridge’s Experts
The Tribunal was “not persuaded by the respondent’s psychiatric assessor Dr. Sharma because the evidence cited for his rating of a Class 2 Mild impairment in this domain is that the applicant lives with two roommates whom he gets along well with; was polite, made eye contact and was not irritable during the assessment. Dr. Sharma testified that he did not probe further as to why the applicant does not go out or socialize and did not probe further as to why the applicant has become awkward socially; all of which left me with the impression that Dr. Sharma’s finding understated the applicant’s impairment in this sphere, lacked corroboration and seemed to overlook contrary evidence. In particular, the documentation review by Dr. Sharma includes reports by Miranda Mo and Associates and Dr. Steiner which indicate low mood, depression, and isolation which in my opinion should have drawn the assessor to explore more in this sphere with the applicant.”
The Tribunal also “place(d) less weight on the report of Mr. Kaplun. Mr. Kaplun reported that the applicant demonstrated good results in his community outing task to a local Shoppers Drug Mart. However, under cross-examination Mr. Kaplun conceded that the applicant did not engage with any clerks, cashiers, or shoppers during the visit to the pharmacy. I believe this directly speaks to social function and I find that its absence from Mr. Kaplan’s report to impact the reliability of his findings in this sphere.”
Conclusion
Accordingly, given a finding that Ortaugurlu sustained Class 4 Marked Impairments across all four domains, he was confirmed as satisfying the Criterion 8 CAT definition.
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