Volume. 7 Issue. 32 – August 30, 2023
This week, the Tribunal considers a post June 1 CAT matter, wherein the central issue of pain is considered in context of Criterion 8 domains of Activities of Daily Living (ADL), Concentration, Persistence and Pace (CPP) and Adaptation. The Tribunal also references the importance of relying upon the detailed assessments carried out by Occupational Therapists (OTs).
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?
Pain and Essential Role of OT in CAT Determination
Pain the Determining Factor in CAT – Injured in a November 2018 MVA, the applicant Islamovic, in 21-006080 v Co-operators, sought a CAT determination in accordance with Criterion 8, contending that the applicant had a marked impairment in three of four domains of function under Criterion 8: activities of daily living. concentration, persistence and pace; and adaptation. In contrast, it was the position of Co-operators that Islamovic has moderate impairments in the domains of social functioning and adaptation; and mild impairments in the domains of activities of daily living and concentration, persistence and pace.
Pain
The Tribunal noted that the main difference between the respective psychological experts relied upon was the extent to which pain was considered in the course of the Criterion 8 assessment. This was seen as being important, as pain played a significant role in Islamovic’s limitations, and in the event an impairment was not related to a mental or behavioural disorder, it is not included under Criterion 8. The expert for Co-operators “testified that limitation caused by pain would have been covered by his diagnosis of adjustment disorder, he expressly stated in his report that he did not rate impairment caused by pain”, whereas the expert for Islamovic included pain-based impairment.
The Tribunal preferred the approach taken by Islamovic’s expert, noting that numerous assessors had opined as to the impact of pain on Islamovic’s mental and behavioural condition, including Co-operator’s expert, who had opined that the Applicant demonstrated low frustration tolerance that was affected by pain. In addition, the treating psychiatrist observed that the “applicant’s symptoms of persistent depressive disorder and PTSD were going on “side by side” and worsened by pain.” As confirmed in Pastore, “where an individual’s diagnosed mental disorder includes pain associated with a general medical condition, then it is reasonable to include such pain when determining an individual’s impairment level under Criterion 8.”
Role of OT
It was noted that there were detailed assessments and reports from Occupational Therapists (OTs) for both parties. While not proffering ratings under Criterion 8 (which they are not authorized to do), the OTs did provide relevant professional observations and evaluations of Islamovic’s function, and her psychological expert “relied significantly on the occupational therapy assessment report…and transparently included as part of her analysis, relevant observational information of the applicant in functional assessment settings”. As the “scope of practice for occupational therapists includes the assessment of function and adaptive behaviour in the areas of self-care, productivity and leisure… occupational therapy functional assessments provide information directly relevant to determining factors under Criterion 8.”
ADL
The Tribunal then considered the relevant domains, commencing with ADLs. The Tribunal reiterated the position that it was appropriate in this case to include pain-related restriction under Criterion 8. Islamovic’s expert “stated in her analysis and testimony that the applicant avoids activities because of pain, worries about activity or pain causing damage, fears re-injury, and ruminates about pain/somatic symptoms.” The expert’s “appreciation of the applicant’s circumstances is more consistent with other evidence of the applicant’s experience in this domain, and is thus preferred. Ultimately, the “preponderance of evidence” supports a finding of a marked impairment in ADLs.
In contrast, Co-operator’s expert had “stated in his report that limitation due to pain was not rated. He expressly excluded pain-related impairment in determining that the applicant was capable of living independently and performing almost all of the activities of daily living.” However, it was determined that the expert’s “appreciation of the applicant’s limits in this regard appeared to be primarily based on interview data. It did not address features observed during both occupational therapy assessments. Both occupational therapists reported a need for significant breaks and observed compromised functional performance because of pain and fatigue.”
CPP
Turning next to CPP, Islamovic’s expert was again preferred, considering the pain related issues, and having “specifically encompassed data from the functional assessment of (Islamovic OT). The contrary opinion of Co-operator’s expert “primarily relied upon his evaluation of the applicant’s mental functioning as presented in the interview setting and the information provided during this meeting with her.” In addition, while the assessor “listed both the (OT) reports in his available documentation, he did not reference data from the functional assessments in his report’s analysis.” On this point, Islamovic’s expert noted that the opinion regarding CPP “would have been different had she not included the functional data, particularly given that the applicant had completed the interview in under two hours with only one break.” Once again, the “preponderance of evidence” supports a finding of marked impairment in CPP.
Adaptation
Continuing the theme, again Islamovic’s expert’s finding of a marked impairment was much preferred. Co-operator’s expert “did not reference the observations of the applicant in functional assessment settings, and (Islamovic’s expert) found that functional data about the applicant provided important information not otherwise available to her. I agree that information relevant to assessing adaptation would not necessarily be available in an interview setting alone.”
Conclusion
With the finding of marked impairments in the domains of ADL, CPP and Adaptation, the Tribunal concluded that Islamovic satisfied the test for a CAT designation under Criterion 8.
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