Volume. 7 Issue. 26 – July 12, 2023
This week the Tribunal, in ‘Previous Disability Significantly Worsened’, considers whether the applicant, despite a 20 year history of disability, nevertheless suffered from a complete inability to carry on a normal life post MVA.
We then briefly touch on an unsuccessful CAT case, ‘That Was My Dead Brother, Not Me’, wherein the applicant seems to have overlooked rather essential aspects of his family history.
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?
Demeanor Under Cross Determinative
Previous Disability Significantly Worsened – Injured in a May 2019 MVA, the applicant Afkhamizadeh, in 21-005115 v Aviva, sought entitlement to Non-earner Benefits (NEB), despite having been disabled from employment for 20 years prior to the accident. In the preceding years, Afkhamizadeh underwent discectomy surgery in 2010, and back surgery in 2017.
It was the position of Afkhamizadeh however, that despite his extensive pre-MVA health issues, his “pain was managed with injections and his condition was reported by his treatment providers to be stable. Following the subject MVA, he submitted that he has lost his independence and is no longer able to engage in his pre-accident activities.” Aviva countered that Afkhamizadeh’s pre MVA health was already significantly limited, and that there was essentially “is no difference between his pre-and post-accident abilities.”
After having weighed the evidence, the Tribunal agreed with Afkhamizadeh that the “medical documentation supports that he has a significantly reduced ability to carry on a normal life as a result of the accident, having already been very limited and now having to excessively rely on treatment providers and family.” Further, it was “well documented in the family physician records and the records of North Woodlands that he suffered pre-accident chronic pain, which was managed by injections, and that the accident has exacerbated his chronic condition.” In addition, “the increase in falls, pain, leg weakness, ambulation issues, the requirement now of using a cane, and remaining in bed most days all speak to A.A.’s post-accident condition that has also been reported to various treating practitioners.”
The Tribunal had to “question the thoroughness of the s. 44 assessors, as none of them reviewed any of A.A.’s treatment records. Basing their opinions solely on the results of their assessments and the OCF documents does not allow for a fulsome consideration of A.A.’s pre- and post-accident health status to allow for a well-informed conclusion.” Further, “considering the ability to engage in activities of daily living requiring pain-free and uninhibited mobility, I find that A.A. is not able to do so for any substantial period of time.” Accordingly, the exacerbation of the pre MVA health issues, including the need for two further surgeries post MVA contributed to a worsening of an already compromised back. Therefore, Afkhamizadeh satisfied the onus of demonstrating a complete inability to carry on a normal life.
CAT’s Lack of Credibility Determinative
That Was My Dead Brother, Not Me – The insurer’s assessor, in 20-000264 v Dominion, confirmed that the applicant Khalaf, injured in an October 2016 MVA suffered from two marked impairments. However, after having reviewed surveillance and additional medical records, he recanted this opinion, indicating that at most, Khalaf had a mild impairment under all spheres. Further working against Khalaf was the fact that his testimony regarding his pre-accident health and function was completely undermined by the medical record. Answering “I don’t know” or “I don’t remember” to almost every question, the timing and selection of his lack of recall was found disconcerting.
The credibility of Khalaf and his daughter was further compromised with their response to the aforementioned surveillance. He denied that it was him, suggesting rather that it was his brother, with his daughter suggesting it was perhaps her uncle. Unfortunately, neither Khalaf nor his daughter accounted for the fact that the available records confirmed that all three of his brothers were dead, and that all of his family members lived in the Middle East. Accordingly, the Tribunal was convinced that the subject in the surveillance was in fact the applicant Khalaf. Ultimately Khalaf was found to have failed to evidence that “but for” the accident he would have sustained a psychological impairment and resulting functional limitations. Further, his CAT reports were determined not to support a CAT impairment, largely due to reliance upon his inconsistent reporting.
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