Print
 

 Volume. 7 Issue. 35 – September 27, 2023


This week, another review of a CAT Determination further to Criterion 8 for a post June 1 MVA. Ultimately, the applicant’s expert’s conclusions were determined to represent a more fulsome account of the medical evidence.



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?

Continue Reading >



Three Marked Impairments

No Conflation Here – Injured in a November 2018 accident, the Applicant Tokan, in 21-007794 v Co-operators, sought a CAT determination in accordance with Criterion 8 of the Schedule. Tokan’s assessors opined there to be marked impairment in the domains of activities of daily living, concentration, persistence and pace, and adaptation.

For their part, Co-operators submitted that Tokan exhibited moderate impairments across the same three domains. Co-operators further submitted that the subject accident was not serious, with a number of Tokan’s reported symptoms, especially a seriously injured arm, were caused by his pre-existing conditions and prior motor vehicle accidents.

Causation

While acknowledging the prior health matters, Tokan submitted that same did not prevent him from working full-time as an Uber driver prior to the subject accident or lead to functional limitations. The Tribunal agreed with Tokan, noting that he was for a fact able to work full time and function independently as contended. In addition, symptoms involving the arm were not identified as having contributed to his somatic symptom disorder. Rather, the overarching physical issue was with respect to his low back, which had not been identified as an issue in the years preceding the accident. As a result, the Tribunal was satisfied that but for the accident, he would not have sustained the impairments that form the basis of his CAT application. The accident had “aggravated these vulnerabilities and triggered the development of chronic pain and somatic symptom disorder in addition to other psychological impairments.”

Tokan’s psychological assessor diagnosed him with somatic symptom disorder, with predominant pain, persistent, severe, and major depressive disorder. The psychological assessor for Co-operators concurred with the diagnoses, however disagreed with the impairment ratings, suggesting that the assessor “may be conflating the applicant’s physical impairments with his psychological ones.”

ADL

Co-operators assessor concluded there to be a moderate impairment in this sphere, “noting that the applicant continues to attend his mosque on Fridays, still interacts with some family and friends, is still primarily responsible for his personal care and medications and is able to pay bills online, drive independently and shop.” However, the Tribunal found that while the evidence did support an ability to perform some ADLs, “I find that he does not do them consistently or as efficiently in the same way he did pre-accident.” Co-operators expert opined that Tokan “appeared to be primarily limited by physical pain, which is amplified by his somatic symptom disorder”, and that his assessor “may be conflating the applicant’s physical impairments, with his psychological ones.”

The Tribunal concurred with Tokan that the “degree of suffering and impairment secondary to pain is disproportionate to the physical injuries sustained, but rather, had a psychological contribution… displayed somatic features of fear avoidant behaviours, and psycho-emotional factors.” Therefore, Tokan’s “psychological impairments, including somatic symptom disorder, serve to significantly impede useful functioning in his daily activities.”

CPP

Tokan’s OT found that the “capacity to concentrate, persist and pace with even the simplest of functional demands was impeded by the fact that he was extremely pain-focused, fearful of symptom exacerbation and avoidant of any task that could cause additional discomfort. She reported that no task was completed in its entirety.” Co-operator’s expert however found there to be “no evidence of gross thought disorder or word finding difficulty…the applicant still drove independently, managed his medications and attempted to read the Koran.” Co-operator’s OT, consistent with Tokan’s OT, noted “that the applicant did not answer questions or demonstrate the majority of tasks, due to pain and low mood…(and) could not determine how the applicant would perform in the sphere of concentration.”

The Tribunal concluded that the evidence establishes that while the applicant can complete some activities of daily living, he does so inconsistently and does not complete tasks in a timely manner.” Accordingly, “I find that the applicant’s residual level of functioning with respect to concentration, persistence, and pace is significantly impeded and therefore he has a marked impairment in this sphere.”

Adaptation

Co-operators expert opined that Tokan had not returned to work “primarily because of physical pain”, The Tribunal however noted that while the expert agreed that the applicant’s physical pain is amplified by his somatic symptom disorder, he “does not address the applicant’s fear avoidant behaviours and maladaptive thoughts relating to pain’. In contrast, Tokan’s expert “considers the full scope of the applicant’s psychological and somatic symptoms in determining that the applicant’s ability to manage stresses common to the work environment would be substantially impaired.”

Criterion 8 Satisfied

Concluding, Tokan established a marked impairment in this sphere, thereby satisfying the Criterion 8 CAT requirement of three marked impairments in three areas of function that precluded useful functioning.



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

Contact Sales

416.364.6688

Contact Support

Contact Us

InHealth

11 Allstate Parkway Suite 203
Markham, Ontario
L3R 9T8

Follow Us On