Volume. 7 Issue. 25 – July 5, 2023
This week, the Tribunal considers a CAT determination matter, wherein causation was the threshold issue. Ultimately, the Tribunal found that the Applicant suffered two Class 4 Marked impairments, satisfying the pre June 1, 2016, CAT requirements. One being Adaptation, despite evidence of two years employment post MVA.
A somewhat similar fact situation was discussed in an earlier issue. The Tribunal was also less than impressed with the evidence and testimony of the respondent’s expert, found to have apparently developed a theory and then making the facts fit his theory.
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?
Facts Don’t Fit “Theory” in CAT Determination
Domino Effect – Injured in a February 2016 MVA, the applicant Natkunaseelan, in 21-005850 v Definity, sought a CAT determination. She relied upon the opinion of her expert neuropsychologist, who opined there to be Class 4 Marked impairments, attributing the cause and severity of the impairments to the 2016 MVA.
Definity however, relied upon their expert psychiatrist, who in fact did not rate Natkunaseelan, opining that her past medical history indicates that her current condition is not accident-related but is the inevitable outcome of a pre-existing psychological condition. Specifically, that Natkunaseelan “suffered from selective mutism as a child and that the developmental pathway for children with selective mutism leads exactly to the applicant’s current condition. The 2016 accident…had no lasting impact on the applicant’s current state.”
The Tribunal noted that it would not suffice to determine solely that Natkunaseelan’s impairments met the test for a CAT determination. It must as well be determined whether “but for the accident, would the applicant have progressed from a shy child to a normally functioning young adult, albeit a shy and somewhat socially withdrawn young adult.” However, while causation was identified as the “threshold issue”, the Tribunal firstly considered CAT impairment. It was confirmed that there were occupational therapy (O.T.) reports for both parties that were “generally in agreement that the applicant suffered significant impairments in at least one area…social functioning.”
The Tribunal confirmed that Natkunaseelan’s “current reclusive lifestyle does not mean that she is incapable of any action. She did go to Paris, France, with her family to visit a much-loved aunt and her aunt’s new family”. The Tribunal agreed with Definity that this was “a major undertaking”. However, the Tribunal did “not find this trip undermines the applicant’s position to any great extent. The respondent’s submission incorporates the concept that mental health conditions and their resulting impairments are static: either you are sick and cannot function or you are well and can function perfectly. The evidence in this case suggests that the condition is progressive and variable and, while the applicant may rouse herself from time to time, there is a cost.” Therefore “In the absence of an expert opinion to the contrary, and in the face of overwhelming corroborative evidence from OTs, the applicant, and her mother, I accept…that the applicant suffers from a Class 4 impairment in at least one of the four spheres, social functioning.”
The expert for Definity however, did not find a Class 4 impairment in the domain of Adaptation, the ability to function in a work-like setting. This was premised upon the fact of Natkunaseelan having worked for two years at a Tim Horton’s franchise and had tutored another student while attending a special needs school. The Tribunal herein found that the evidence was “less clear cut”, given the employment, and the successful completion of Grade 12 and first year university, therefore “she has some capacity for work.” It was however noted that Natkunaseelan, “hated the counterwork at Tim Horton’s and was moved to the back of the store, and that the tutoring was of a much younger boy while on the school bus.” Concluding, the Tribunal was “persuaded by her reported inability to respond to stressors in everyday life, that she suffers a Class 4 impairment in that sphere as well.”
Causation
The expert for Natkunaseelan opined that “given the absence of pre-accident psychological impairment, the applicant would not suffer the breadth and severity of symptoms without having been involved in the accident. Her exact wording is “the February 1, 2016, motor vehicle accident has materially contributed to [the applicant’s] psychological symptomology.” In contrast, the expert for Definity concluded there to be “no psychiatric diagnosis or impairment attributable to the subject motor vehicle accident,” thusly declining to assign a rating in any of the four spheres set out in the Guides. Definity further argued that Natkunaseelan continued to do well in school post MVA, and maintained the same, albeit small, circle of friends.
This argument however, “fails to account for the fact that the applicant’s first interaction with mental health professionals was very shortly post-accident, with difficulties obviously appearing earlier than that and leading to a referral to a psychiatrist…(and) also discounts (Natkunaseelan’s expert’s) evidence about the accident making the applicant more vulnerable to stressors, a vulnerability that developed over time overlain as it was with Somatic Symptom Disorder – Predominant Pain.” Definity’s contention was that “the applicant’s mental health issues were not caused by the accident and, thus, fail the “but for” test.” It was noted that the Court in Chisholm described “but for” thusly: “When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.”
Ultimately, the Tribunal found that Definity’s expert’s opinion regarding causation was “conjectural”. He was determined to have apparently “developed a theory and then made the facts fit the theory. He takes the possibility that childhood selective mutism will lead to adult depression and anxiety and elevates it to a certainty.” The expert also “places great weight on the fact that the applicant’s treating mental health practitioners…do not specifically tie the applicant’s condition to the accident.” However, “I do not accept that the failure of treating professionals to specifically refer to a possible cause negates the cause. The focus is on treatment and, is thus, forward looking.”
Concluding, the Tribunal was satisfied that the “transition from mild pre-accident anxiety… with no active mental health treatment, to active and extensive mental health treatment within several months of the accident, indicates that but for the accident the applicant would not suffer her current mental and behavioural impairments…her pre-existing anxiety may have made her vulnerable, but it was the accident that triggered the subsequent decline. It started the blocks falling.”
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