Volume. 7 Issue. 11 – March 29, 2023
Two CAT cases this week, with ‘Confirmed CAT on Causation’, dealing with a case wherein both parties agreed that there were at least three marked impairments, however the respondent contending same not to be as a result of the accident in question.
In ‘Symptom Magnification a Symptom’, we take a brief look at a case in which the Tribunal ultimately was satisfied that symptom amplification and magnification in a clinical setting was in fact a symptom of the applicant’s mental health condition.
LAT Update – What Difference Did A Year Make?
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
Both Parties Agree Three Marked Impairments but Query Causation
Confirmed CAT on Causation – In the year prior to his September 2017 accident, the Applicant Boni, experienced anxiety and depression, while also treating for various physical health issues. In July 2017, he sustained a hand fracture, following which he returned to work on modified duties shortly thereafter. In 20-007645 v CAA Insurance,, Boni sought a CAT determination, contending that he suffered from three marked impairments, thus satisfying the Criterion 8 requirements. Boni’s expert concluded that Boni suffered from three marked impairments in the areas of activities of daily living, social functioning, and adaptation, being of the opinion that “but for the accident, the applicant would not have his psychological impairments.”
CAA’s expert in fact concluded that Boni suffered marked impairments in all four functional domains. However, he further opined that “the applicant likely had marked impairments in those four functional domains before the accident, so the impairments were not a result of the accident.” It was the position of CAA that Boni “has been suffering from longstanding pain and mental health issues that pre-date the accident… that his physical condition was deteriorating rapidly before the accident, and he could not have continued doing his job even if the accident had not occurred.” CAA pointed to the fact of Boni’s doctor, in September 2017, just prior to the accident, recommending that Boni go on LTD, therefore “there was real concern over whether he could return to regular duties, which he had been medically cleared to do starting the Monday after the accident.”
CAA’s expert testified that he was “under the impression that the applicant was not working at the time of the accident.” This, despite clear evidence that Boni was in fact working full-time modified duties until the accident. The Tribunal indicated that “I don’t see how this discrepancy would not impact any assessment of the applicant’s mental and behavioural pre-accident function.” Further, testimony from Boni as well as a number of collateral sources “was persuasive that from a mental or behavioural perspective the applicant was not suffering from any marked impairment before the accident.”
Boni’s doctor first completed a disability tax credit in October 2019, testifying that she had not completed same prior to the accident “because she did not feel it was applicable to the applicant at that time. He was working full-time despite his physical complaints, and what Dr. Walters described as transient depression and anxiety.” In addition, the initial CPP Disability medical report was completed in December 2018, not before the accident, “because she did not believe that he met the test for entitlement.” His doctor testified that based upon pre and post MVA interactions, “there was a progressive and significant worsening of his mental health functioning after the accident. That is why she completed the disability tax credit form and the CPP disability applications when she did.”
The doctor further opined that “the accident itself was the event that caused a significant deterioration in the applicant’s overall level of functioning, both physically and mentally/behaviourally. Any functional restrictions prior to the accident were of a physical nature only.” Another doctor testifying on behalf of Boni was found to be “particularly persuasive”, in determining that the “accident was the trigger that amplified his pre-existing conditions and activated vulnerabilities that he already had.”
The doctor indicated that “the fact that the applicant was able to work full-time leading up to the accident is indicative of a pre-accident ability to concentrate and focus in an environment like construction jobsites where safety was a real concern. The applicant was also able to persist at tasks to the point of completion…(that) would not be indicative of an individual who had class four marked impairments related to a mental or behavioural disorder prior to the accident.”
Concluding, the Tribunal was “ satisfied that there was a significant decline in the applicant’s function and tolerances that would not have occurred but for the accident.” With the experts for Boni and CAA agreeing that there were at least three marked impairments, the Tribunal agreed that there were in fact “at least three”, and therefore Boni “sustained a catastrophic impairment under criterion 8 as defined by the Schedule as a result of the accident.”
Consistent Symptom Magnification Related to Health Condition
Symptom Magnification a Symptom – In 20-014858 v Wawanesa,, the Tribunal found that “The parties are essentially describing the applicant (Mbarek) as two different people. Mbarek asserted that “the over exaggeration of her reported functional limitations is actually a symptom of her multiple mental health conditions” suffered as a direct result of her February 2016 accident. Wawanesa on the other hand submitted that Mbarek “has magnified her symptoms, she has malingering symptomatology, and there is a significant disconnect between her reported level of impairment and her actual level of functionality.”
The Tribunal noted that it was not disputed that there had been “consistent reporting of symptom magnification and amplification by the applicant’s assessors.” However, the Tribunal was “more persuaded by the evidence that the amplification and magnification in a clinical setting is actually a symptom of the applicant’s mental health condition.” The Tribunal found persuasive, Mbarek’s expert’s testimony that “her somatic symptom disorder was a pathological emotional response to pain. As a result, she was overfocused on pain and impairment, particularly her functional impairment.” Ultimately, given this finding, the Tribunal determined that Mbarek’s “impairment level significantly impedes useful functioning with respect to adaptation”, thereby satisfying the Criterion 8 CAT requirements for pre June 1, 2016 accidents.
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