Special Edition – September 21, 2021
In this “CAT” Special Edition LAT inFORMER the Tribunal answers the following CAT determination questions:
1. Post June 1 2016 decision involving an incomplete motor functional paraplegia initially of a Scale C which later improved to a Scale D. Is or will be permanent?
2. The Tribunal took aspects of both the Applicant’s and Respondent’s reports and came to their own independent conclusion and WPI%?
3. Real world employment trumps a less than “real world” simulation in assessing functional abilities?
Is or Will Be Permanent
Is or Will Be Permanent – In the first case dealing with the revised CAT definition 19-000560 v RSA, the parties’ central disagreement concerned the “permanency” of the Applicant’s functional limitations.
Following a November 2016 accident, the Applicant was assessed in December 2016, with a diagnosis that her neurological classification was T7 ASIA Impairment Scale C (motor incomplete non-functional paraplegia). Subsequently in January 2017, a further assessment noted that the Applicant’s condition had improved to Scale D (motor incomplete), which still meets criteria 1 under s.3.1(1) of the Schedule for a catastrophic designation. The Respondent’s IE in June 2017 made a similar diagnosis, also confirming that the Applicant met criteria 1 under section 3.1(1).
The IE however then concluded “the applicant does not satisfy the definition of permanency” and further stated that it “is less than 1 year post accident and spinal cord injuries of this nature have the potential to improve, particularly over the initial 18-24 month period.” The assessor recommended that the Applicant’s catastrophic eligibility be reassessed at 24 months post accident.
The Tribunal confirmed, “The disagreement between the parties centers on the meaning of the words that have been underlined from section 3.1(1)1(ii): The insured person’s permanent grade on the ASIA Impairment Scale is or will be…” The Tribunal further noted that “I have not been pointed to any evidence to suggest the applicant’s score is or will improve from a ‘D’ to take her outside of the definition of a catastrophic impairment. [The IE assessor]’s opinion does not state that the applicant’s improvement will be of such a degree so as to remove her from the ‘D’ classification into an ‘E’ which is considered normal on the ASIA Impairment Scale.”
Concluding, the Tribunal found that “[IE assessor]’s opinion of the applicant having the ‘potential to improve’ does not mean the applicant’s permanent grade on the ASIA Impairment Scale cannot be determined. Furthermore, I find that there is no requirement to wait 24 months before conducting an assessment under paragraph 1 of sect
67% and 39% = 55% WPI
Middle Ground for CAT – In 18-003334 v Guarantee, the Tribunal considered the expert opinions of both the Applicant and the Respondent in finding that the Applicant had sustained a catastrophic impairment. For this 2010 accident, the Applicant sustained both psychological and physical impairments. She has been assessed a 67% Whole Person Impairment (WPI) by her assessor and 39% by the Respondent’s assessors.
Dealing firstly with the Applicant’s mental/behavioural impairments, the Tribunal did not find the Applicant’s report either “compelling or reliable.” The Tribunal noted there to have been “significant” differences between a draft and final report, especially a deletion of numerous functional abilities that did not reconcile with the overall assessor’s ultimate opinion. The Tribunal had “difficulty with” explanations provided for the differences between the two reports and found that the evidence of the report writer in this regard was “in direct opposition to” evidence of the overall assessor. Despite these issues, the Tribunal nonetheless relied upon other aspects of the Applicant’s report in making their own independent determination with respect to the physical impairments.
Numerous aspects of the Respondent’s assessors were also incorporated. In addition to the mental/behavioural impairment, the Tribunal considered eight physical impairments, six of which were rated positive. Ultimately, it was found that the Applicant has sustained 54% WPI. “After rounding, as permitted by the Guides, the applicant meets the threshold of 55% and therefore has sustained a catastrophic impairment.”
Real World Trumps Simulation
Simulation Not Real World – The Applicant, in Villareal v Certas (18-008349), sought a CAT determination based upon a marked impairment in the sphere of adaptation. This, despite Villareal having worked on a regular part time basis at a gift shop and various retailers for a considerable period of time. He contended that the relevant time period to consider was as at the filing of the CAT application. The Respondent countered, and the Tribunal agreed that it “cannot look at the applicant’s condition in a vacuum but need to look at it as a whole. Pre-accident functioning in comparison to post-accident functioning is required in the CAT determination analysis. How the applicant is functioning and how he is able to adapt in situations cannot be looked at in a snapshot period.”
Villareal’s assessor had initially determined there to be a “more moderate than marked impairment.” However, after reviewing the results of an OT simulation exercise, said assessment was “so real world” and put him over the edge for a marked impairment. While Villareal was at the time employed at a coffee shop, the OT opted to put Villareal through a barista work simulation, which the Tribunal found to have been “confusing.”
The Tribunal took issue with the premise of a situational work assessment when Villareal was in fact employed as a coffee barista and had been employed in that role for quite some time. There was no validity testing nor anything to compare the simulation to a “real-life work situation”. With the results noted to be poor, the Tribunal commented that was his performance indicative of his ability to perform in his current employment, he “would not have been employed at his barista job for as long as he was.” Even the Applicant’s assessor offered that “as an employer, she would probably not keep the applicant employed.”
Finding that the simulated test could not have been so “real world”, it was noted that Villareal had demonstrated an “upward trajectory in employment”. He was described as having “succeeded and progressed in his employment since the Accident and since applying for a CAT determination.” Villareal had “learned coping mechanisms which have allowed him to progress in employment and functioning. It cannot be said that the applicant’s impairment level “significantly impedes useful functioning’ in adaptation.”
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