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?
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.
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