MIG Update – July 19, 2021

Scrutiny of Psych Evidence

In this edition, we highlight two decisions that turned on psychological evidence. In both cases, the opposing assessments were in proximity to one another with differing conclusions. Ultimately, the Tribunal’s review and scrutiny of the evidence led to decidedly different decisions. What are the considerations for advancing the best case involving psychological impairments?

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Factor: Scrutiny of Psych Evidence

In Sidhu v. Dominion (19-008008), Sidhu relied on an undated psychological report following an October 2018 assessment where he was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder. In response, the Respondent conducted a psychological IE in December 2018 which found no psychological impairment.

‘MIG hold’ – The Tribunal’s findings:

• No indication that an interpreter was present despite Sidhu’s “limited ability to speak and understand English” in both s.25 and s.44 assessments
  
• Both reports were unclear on which components of the assessment were completed by the psychometrist and which were completed by the supervising psychologist
• The Tribunal could not conclude that Sidhu was able to accurately complete the self-reporting questionnaires on his own
• Sidhu ultimately failed in his burden of proof, as evidence from his family doctor does not support a finding of psychological impairment

In coming to a contrasting conclusion, the Tribunal in J.R. v. Aviva (18-003444), again commented on the importance of having an interpreter’s presence during an assessment. In a psychological IE conducted in April 2016, the psychologist found that J.R.’s psychological testing was inconsistent between measures and “may have reflected cultural/linguistic confounds.” It was concluded by the assessor that J.R. did not suffer a psychological impairment as a result of the accident.

The Tribunal’s finding:

• The discrepancies in J.R.’s testing with the IE assessor would have been resolved with the involvement of an interpreter.
• The IE assessor “attempts to downplay J.R.’s scores simply because she reported that she does not need psychological services”; J.R. is not an expert in psychology and the assessor’s overall opinion should not rest on J.R.’s opinion
• J.R.’s expert report dated March 2016 was preferred in which the scores indicated that J.R. suffered from severe anxiety and severe depression

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