News Update – March 4, 2019

CAT at the LAT

Jonathan Batty, Associate Chair at the LAT presented the current statistics on CAT matters at the LAT:

• 2,705 active CAT cases; representing approximately 10% of the overall caseload
• Of which, 272 involve post-June 1, 2016 definition
• 872 CAT cases received last fiscal year; again representing approximately 10% of total intake
• Over 250 Pre-Hearing Settlement Conferences in 2018 with a 90+% success rate
• Average time from application filed to to initial case conference 17 weeks

Diversion…
Mr. Batty stated that the LAT actively encourages parties to make use of private mediation, as the LAT does not consider mediation services to be within their mandate. With 17 weeks from application to initial case conference, he suggested that this to be the ideal time frame for parties to make efforts to attempt resolution

The LAT will be conducting more case conferences via teleconference, with in-person consideration to be on a case by case basis. He reiterated that there was no need for the LAT to be involved for parties to meet face to face.

Caucusing…
Although caucusing is at times a central feature in early resolution initiative, Mr. Batty indicated that this is not to be considered the norm within this model. In an earlier panel discussion, all four practitioners referenced on numerous occasions that caucuses were in fact most helpful in achieving resolution.

Top Five (or Six) CAT Cases

Adam Little, Partner at Oatley Vigmond reviewed important reported cases from last year, highlighting what one needs to understand from each decision.

• 16-003415: the need for multi-disciplinary assessments for complicated cases, especially those involving chronic pain
• 16-001226: the overriding need to fully assess pre- and post-functional abilities
• 16-004281: the danger of relying solely upon causation in defending a CAT claim and the LAT had jurisdiction to hear an appeal on a CAT determination in the absence of any associated substantive benefits, in dispute
• 17-007962: approaches CAT assessments in at least a somewhat different manner, confirming that the associated costs for same were not deductible from available medical limits, as the assessment was not a determination of entitlement to any specific benefit(s)

But For…Correctness

A recently released Judicial Review of FSCO case Sabadash v. State Farm et al., deals with the appropriate test for causation in an AB matter, “but for” or “material contribution”.

On appeal, the Director’s Delegate determined that the Arbitrator had misdirected himself as to the proper test of causation and should have applied the “but for” test. The Divisional Court confirmed the appeal decision was made by applying common law principles. Given that the Director’s Delegate focused on the law as developed by the courts in determining the test for causation, “his decision is reviewable on a correctness standard”.

The Court found that the Director’s Delegate was in fact correct in finding that the test to be applied to establish causation is the ‘but for’ test”. However, the suggestion that the plaintiff must prove on a balance of probabilities that the accident alone could have caused the impairment is incorrect. The Court also disagreed with the suggestion that ‘but for” needs be proven in a “material contribution to risk” case.

Although he identified the correct “but for” test, the Director’s Delegate did not correctly explain how the test works. Therefore, the Court concluded that it is appropriate to remit the issue of causation to a different arbitrator to apply the correct test, with the application for judicial review dismissed. There were no costs awarded given the “divided success”.

Post-Concussion Syndrome – A Troubling Clinical Concept?

Dr. Mark Dowhaniuk, neuropsychologist, presented what turned out to be (at least in the eyes of a number of attendees) a somewhat controversial perspective on this topic.

Referencing Mild Traumatic Brain Injury (MTBI), he indicated that leading literature confirmed the following:

• No objective indicators of cognitive impairment more than three months post incident
• If symptoms present, these were likely related to co-morbid issues such as depression, PTSD or litigation
• Consider these as being cognitive symptoms, rather than cognitive impairments.
• Post-Concussion Syndrome a “troubled clinical concept” or “misnomer”
• Better to consider this to be “post-concussion symptoms”
• Concussion a transient disruption of brain function
• Constellation if symptoms nothing more that somatoform presentation
• Involves numerous factors none of which relate to brain compromise
• Best to be considered a mental impairment

Numerous attendees took exception to this characterization, including Dr. Becker who disagreed with the suggestion that MTBI does not lead to long term impairments. We will no doubt hear much more on this topic when the MLST holds their conference dealing specifically with concussions, slated for the Fall of this year.