Volume. 6 Issue. 41 – October 19, 2022

Two CAT determination cases this week, both confirming the applicant as CAT. ‘Find the Off Switch’ considers the implications of the applicant’s functional ability with and without a surgically embedded pain relief device. The Tribunal found it appropriate to assess the applicant without benefit of the device, contrary to the respondent’s suggestion that the device ought to be turned on as it was the majority of the time.

‘No Marked Impairment for Volunteer’ considers a scenario whereby there was in fact consensus opinion that the applicant sustained a marked impairment in Adaptation, however the respondent suggesting that this was the same as the pre accident functional abilities.

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Pain Relieving Device Must be Turned Off for Assessment

Find the Off Switch – The Applicant Ferlisi, in 21-000013 v Allstate, sought a CAT determination based upon her assessor opining that he suffered from a 65% WPI. Allstate’s expert however had arrived at a WPI rating of 41%, with the main point of contention being the appropriate rating for gait derangement, with Ferlisi indicating a 40% WPI, Allstate only 20% WPI. Further to this issue, the parties disagreed as to whether Ferlisi ought to be assessed with or without her spinal cord stimulator (SCS) being turned on.

The SCS was surgically implanted and serves to provide an electrical impulse that disrupts the signal of pain from the applicant’s foot to her brain. The AMA Guides “state that if an individual’s prosthesis or assistive device can be removed or its use eliminated relatively easily, the organ system should be tested and evaluated without the device.”

Allstate contended that the appropriate methodology for assessing the applicant’s gait was with the SCS turned on. Queried as to the AMA Guides recommending that the evaluation should be done without the prosthesis if it can be removed easily, Allstate’s expert indicated “that it cannot be removed because it is surgically implanted.” Further queried about simply turning the SCS off, the expert indicated “the AMA Guides say nothing about the prosthesis being stopped, only removed… the AMA Guides do not say the prostheses should be turned off.” Allstate also contended that Ferlisi “should be assessed in the state she is in most of the time (e.g., with the SCS on) because the AMA Guides requires assessors to conduct the assessment when the patient’s impairments are permanent and stable.”

The Tribunal found that Allstate’s “interpretation of the “elimination of use” in the AMA Guides is too narrow. Short of surgical removal, the first thought for eliminating the use of a device is to turn it off. Further, “I find the plain and ordinary meaning of the wording in the AMA Guides, “removed or its use eliminated relatively easily,” includes the stoppage of the use of the device. Eliminating the use of a device can be done by turning it off.” Therefore, “the meaning of the direction in the AMA Guides to assess a person without the prosthesis when its use can be easily eliminated is plain and clear. The use of the SCS is easily eliminated when it is turned off. According to the AMA Guides, this means the applicant should have been assessed with the SCS turned off.”

Ferlisi’s expert indicated having asked her to turn off the SCS, and that once it was off, Ferlisi was not able to put her left foot on the ground. As a result, it was concluded that it would be impossible for Ferlisi to walk any distance with just the use of one cane. Allstate’s expert testified having not assessed Ferlisi with the SCS off, “as he thought it would be unethical to ask her to turn it off because it would cause her a great deal of pain.” Therefore, he relied upon Ferlisi’s report of requiring a cane when the SCS was off, which resulted in a finding of a 20% WPI for gait derangement.

The Tribunal found that Allstate’s expert “did not assess the applicant’s gait derangement with her SCS off but assigned a gait derangement for the applicant as if her SCS was off.” As a result, the Tribunal found that Ferlisi “would require the use of more than one cane to routinely walk… she could not routinely use one cane if her SCS is off.” The Tribunal agreed with Ferlisi that there was a 40% WPI for gait derangement, which when combined with Allstate’s other WPI scores, resulted in a 56% WPI and accordingly she met the criterion for CAT.

Capable of Volunteer Work Despite Marked Impairment?

No Marked Impairment for Volunteer – Injured in an April 2016 accident, the Applicant Day, in 20-005063 v Belairdirect, sought a CAT determination based upon having sustained marked impairments in both Adaptation to the workplace, as well as in Activities of Daily Living. Interestingly, the expert for Belair concurred in the assigning of a marked impairment in Adaptation, however further opined that said impairment existed as well before the accident.

It was noted that Day’s expert had recommended on March 11, 2016, that Day should obtain a volunteer position. The Tribunal therefore reasoned that to accept Belair’s submission that the Day was the same pre-accident as she was post-accident with respect to adaption to the workplace there would need to be a finding that she “is presently capable of working as a volunteer despite having a class 4 marked impairment, an impairment level that significantly impedes useful functioning.” As he was treating Day, her expert was said to be in the best position to understand the pre accident functional capability. The Tribunal found a number of flaws in the approach taken by Belair’s expert, including the failure to “provide an analysis of why he found she had a marked 4 impairment but claimed that it was the same pre-accident as it was post accident because the applicant was doing the same things pre-accident that she was post accident.”

Assuming a volunteer position as recommended by Day’s expert, “requires an ability to commit to attending the workplace, completing tasks and interacting with others.” Belair’s determination thusly was said to “ignore her level of function pre-accident compared to post-accident.” Therefore, based upon the consensus of both experts, Day was found to exhibit a marked impairment in Adaptation, satisfying the criteria for a CAT determination.

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