Volume. 8 Issue. 8 – February 28, 2024

This week the Tribunal assesses the claim for a CAT designation and NEB, as the result of a 2018 MVA. Complicating the matter was the Applicant’s significant past medical history. The Tribunal was required to consider the implications of the past history on the present claim. The Tribunal also addressed whether the Applicant was entitled to lost educational expenses.

Prior Health Concerns Complicate Claim for CAT

Retroactive Diagnosis Required for CAT Determination – The Applicant Taleb, in 21-002993 v Co-operators, relating to a December 2018 MVA presented with a most significant and complicated past medical history. She had been a recipient of the Ontario Disability Support Program (ODSP) since 2012. She sustained psychological injuries and claimed benefits as a result of her husband’s injuries in a 2014 MVA. In a June 2016 IE report she was diagnosed with post-traumatic stress disorder, major depressive disorder, and adjustment disorder with anxiety and depressed mood. She advanced a further AB claim for psychological impairments following the death of her 17 year old son in a 2017 MVA. Two related disability certificates July 2017 and May 2018 confirmed that she had a substantial inability to perform her pre-accident employment, caregiving and housekeeping and that she suffers a complete inability to carry on a normal life.

Despite the foregoing, Taleb suggested that at the time of the subject August 2018 MVA she was “well recovered from my previous psychological distress and was the happiest time of my life”. As a result of this MVA, she sought a CAT designation, based upon her experts’ conclusion that she suffered from class 4 marked impairments in three spheres, Activities of Daily Living, Concentration, Persistence, and Pace and Adaptation. In contrast, experts for Co-operators found only class 2 mild impairments in ADL,CPP and Adaptation, and a class 1 (no impairment) in Social Functioning.

The psychologist for Taleb, confirming some validity issues with some of the testing performed, indicated however that this was “likely due to language or interpretation issues or cultural factors.” The assessor, noting the history of psychological stressors, opined that “she appeared to have been functioning relatively well prior to the subject accident… the applicant would not be experiencing the breadth and severity of her current psychological symptoms and associated impairments if not for the accident.” The Tribunal was however not persuaded that the assessor “sufficiently considered the applicant’s pre-accident impairments in coming to her impairment ratings.” In addition, Taleb appeared to have “downplayed her pre-accident psychological impairment”, and accordingly the Tribunal found that the assessor’s report “did not accurately capture the level of pre- or post-accident psychological impairment.”

The opinion from the expert psychiatrist for Co-operators was preferred, as he confirmed that Taleb had “a longstanding history of significant mental health concerns” and that “she had been diagnosed with major depressive disorder in the past, and the medical evidence showed that her mental health had been deteriorating.” The assessor noted that Taleb continued to struggle with violent and destructive behaviour from her surviving son, such that she was ultimately forced to move into a shelter. The assessor opined that “but for the accident, he felt that her current level of impairment of function would largely still exist.”

Taleb’s assessor was critical of Co-operator’s assessor, suggesting that “in retroactively diagnosing the applicant, he appears to have placed undue emphasis on her pre-accident trauma”. However, the Tribunal noted that this approach was in fact consistent with the AMA Guides, whereby assessors “are directed to estimate pre-existing impairments and subtract same from present impairments in their analysis.” As a result, the Tribunal was “not persuaded that, as a result of the accident, the applicant sustained a class 4 (marked impairment) in all spheres of activities of daily living, concentration, and adaptation. At most, I find that the applicant was experiencing a Class 3 (moderate impairment), with respect to activities of daily living and adaptation. Her impairment levels are compatible with some, but not all useful functioning.” Therefore, Taleb did not meet the threshold for a CAT designation.

Taleb also sought entitlement to Non-Earner Benefits (NEB), relying upon her own affidavit and of her two daughters, and two disability certificates. The Tribunal noted as referenced earlier that in May 2018 prior to the MVA an OCF3 indicated entitlement to NEB. Further, the first OCF3 post MVA did not endorse the complete inability required for NEB. In addition, the 2nd OCF3 that did endorse NEB entitlement was more than two years post MVA, outside of the eligibility period. Finally, Taleb’s affidavit was found to be self-serving and unsupported by the evidence. The Tribunal could not “reconcile the affidavits with the evidence that shows she had significant impairments prior to the accident, such that only three months prior to the subject accident, her family doctor already found that she had a complete inability.” Accordingly, the Tribunal could not be persuaded that the subject MVA had occasioned a complete inability”.

The Tribunal did however find that Taleb was entitled to $2097.08 in lost educational expenses. The Tribunal was satisfied that Taleb was unable to continue with the program as a result of the accident. Reference was made to the October 2018 OCF3 that confirmed Taleb had not returned to school post MVA, and that it was too late to withdraw.

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