Volume. 7 Issue. 44 – December 6, 2023

This week a CAT Determination on 2010 MVA. The Tribunal was struck by the disparate experiential background of the competing experts, ultimately finding that the expert for the insurer did not appear to provide an assessment proportional to the complexity of a case regarding CAT determination.

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Four Marked Impairments for 2010 MVA

Four Marked Impairments – Injured in a November 2010 MVA, the Applicant (S.B.), in 21-006832 v Certas, submitted an OCF-19, applying for a CAT determination in June 2020. Following the MVA, S.B. was diagnosed with whiplash and Post Traumatic Stress Disorder (PTSD). She had previously been diagnosed with Major Depressive Disorder (MDD) in February 2008 when she was completing her first university degree however she was in remission at the time of the accident. She took one month off from university and she deferred her midterms. In 2012, S.B. “applied and was accepted to law school in 2012 school under the Access Program due to her hardships. She started seeing a psychiatrist one month after starting law school. While in law school, she received accommodations such as a note taker, extra time between and during exams, a special room to write exams, opting out of presentations and paper extensions.”

Scholastic and Employment

S.B stated that she completed 100 applications for an articling position but did not get hired as an articling student and completed the law practice program instead, ultimately writing and passing the bar exam, with accommodations. She did not work for six months after she passed the bar exam, however she was eventually hired at a small family law firm in January 2017. She was given the ability to work remotely and she moved in with her mom because she needed her support. She moved out on her own in 2019, however ultimately wound down her law practice in March 2020, claiming it was due to her accident-related injuries.

Evidence of Treating Psychotherapist

S.B. ‘s treating psychotherapist, in an August 2016 report noted that “Six years after the accident, the applicant continues to experience a myriad of symptoms at a distressing level. In fact, the applicant’s symptoms at this time are more prevalent than they were in July 2011. She has a high degree of anxiety and multiple symptoms that are disabling to her quality of life… she has had academic success, and yet her anxiety and feelings of inadequacy and vulnerability feel insurmountable to her on a continuous basis”.

Applicant’s Expert

S.B.’s CAT assessor opined that S.B. suffered a marked level of impairment in all four aspects of functioning. The assessor specifically testified that “it is possible for someone who is suffering from either a major depressive episode or a persistent depressive disorder to be able to complete full-time undergraduate courses or a full-time professional program such as law school successfully.” Further, the assessor opined that “the accident occurred at a young developmental stage, in her early 20s, and therefore at a formative stage with respect to her personality, social, romantic, and career development. He opined that the accident has interfered with her capacity for normal development, including her career, and particularly the development of normal romantic relationships.”

Respondent’s Expert

In contrast, the expert for Certas opined that S.B. suffered moderate impairments in all four areas of functioning. In support of this finding, Certas’ expert submitted that “she has a high level of functioning, and she has never been able to deal with stress since 2006…she did not receive any accommodation to complete her LSAT and obtained employment after law school… She travelled internationally for 2 to 4 weeks since her accident and the mere fact that she travelled cannot be minimized.” In addition, it was contended that she “diminished the fact that she has major accomplishments that should not be ignored… she was able to attend the 7-day hearing during usual business hours and her claims are not supported and are not credible.” The assessor also suggested that the divorce of her parents in her childhood is a vital consideration regarding potential predisposing factors related to the currently observed symptom profile”. The Tribunal found that “it was not entirely clear to me what (Certas’ expert) meant though I suspect he is suggesting the applicant’s parent’s divorce predisposed her to experiencing depression in her life.”

Preference for Applicant’s Expert

Ultimately, the Tribunal preferred the evidence of the Applicant’s expert, placing little weight on the opinions of Certas’ expert, finding same not persuasive, with no “comment on how the applicant’s personal care varies significantly depending on her motivation, which I considered to be an important factor.” The Tribunal commented that Certas’ expert’s report “lacked thoroughness that one would expect from a CAT assessment and the report seemed to be rushed. His assessment of the applicant took 1 hour and 20 minutes and when queried, he said it took him 4 or 5 hours to complete his initial report. This amount of time spent completing this CAT report does not seem proportional to the complexity of the issue in dispute and required to analyze the four areas of functioning.”

Experts’ Disparate Experience

The Tribunal further noted that as part of his qualifications, Certas’ expert “stated that he attended a 3-day course in Las Vegas in 2016 through the American Board of Independent Medical Examiners that went through all the chapters of the Guides but that it was not specific to psychiatry. He completed an exam at the end of the conference and started conducting medical legal assessments in 2018. He could not recall how many CAT assessments he has completed as he has never counted them.” In contrast, the Applicant’s expert “has a Certification in Medicolegal Expertise (CMLE) and a Certification in Catastrophic Impairment Evaluation, Mental Behavioural (C-CAT (MB)) from the Canadian Society of Medical Evaluators. Dr. Suddaby testified that he has been doing CAT assessments for 20 years and has completed over 1,000 CAT reports.”

Marked Impairment All Four Domains of Functioning

Ultimately upon the evidence, the Tribunal found that S.B. suffered from a Class 4 marked impairment with respect to ADL, thereby satisfying the CAT definition. For the sake of completeness, the remaining three domains were considered, concluding that she indeed suffered from Class 4 marked impairments across all domains of functioning. The Tribunal agreed with S.B. that Certas’ psychiatric assessment “was superficial, focusing mainly on the fact that she finished law school to mean that she may have moderate impairments but not a marked impairment…seems to base his conclusions on his perceptions of law school and the legal profession without anything to support his conclusions.”

With respect “to social functioning, the applicant reported having very limited social interactions, she did not make any new friends since the accident. When it comes to concentration, pace, and persistence the evidence suggests that the applicant was not able to attend work or participate in work activities on a regular basis, she had trouble with her workday, trouble with decisions and winding down her practice took a long time. With respect to adaptation, (her expert) stated that the applicant’s inability to manage stress, along with the added burden of pain and PTSD affect her ability to manage stress.”

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