Volume. 4 Issue. 14 – April 8, 2020

CAT Determination Turns on Expert’s Understanding or Lack Thereof?

In what was described as “a relatively minor” July 2010 accident, the Tribunal found on the issue of causation that the Applicant’s susceptibility to pain and vulnerability from a neurocognitive perspective due to her brain stem injury and combination of her pre-existing conditions caused the pain and depressive disorders. “The timing and progression of the pain and injuries supported a direct link to the accident.”

Turning to the medical evidence, the Tribunal found the Applicant’s assessor’s interpretation and application of the Guides more reliable, as opposed to the Respondent’s assessor whose ratings were “based on a fundamental misunderstanding about the precise meaning of what constitutes a ‘marked impairment’ under the Guides.”

Tainted, Compromised and Unreliable – In 17-005314 v Security National, the Tribunal much preferred the evidence of the Applicant’s assessor, finding the same to be “more reliable, balanced and comprehensive..(with) a better understanding of what a ‘marked impairment’ means and therefore conducted her assessment ‘in accordance with the Guides’, as required by the Schedule. The Respondent’s assessor, for his part, incorrectly described or mischaracterized a Class 4 Marked Impairment as “persistent, permanent, and impedes useful function.” The Tribunal noted that neither “permanent” nor “persistent” were found in the word descriptors in the Guides.

As a result, the “conclusion that [the Applicant]’s impairment could not be ‘Marked’ because her impairment levels were not ‘persistent, permanent, and impedes useful function’, applied the wrong test and is not in accordance with the Guides.” Therefore, the “entire assigned ratings regarding [the Applicant]’s level of impairment appear to be tainted, compromised and ultimately unreliable based on a fundamental misunderstanding about the precise meaning of what constitutes a ‘marked impairment’ under the Guides.”

The Tribunal further took exception to the Respondent’s assessor’s use of qualifiers such as “no more than” and “provisionally, as the former “leads to uncertainty and ambiguity for an adjudicator and denies the adjudicator the aid of the word descriptors in the Guides”, the latter suggestive of “an inherent level of uncertainty”. The Tribunal also found the testimony of the assessor “vague, somewhat confusing, inconsistent and less persuasive and therefore gave it less weight.”

This is the fourth straight week where we have led with CAT decisions and this LAT inFORMER is an all CAT issue. The Compendium has now grown to 41 decisions specifically on CAT determination that we have curated and indexed to inFORM you on the merits of the evidence considered by the LAT. These recent decisions serve to emphasize the insight and expertise required of experts by the Tribunal in coming to CAT determinations.

In Trending – Sufficiency of Notice

In the following three cases, the Tribunal considers the sufficiency of notice, the first where it was found that the Applicant has frustrated the right to an IE due to her non-attendance, a second where the Respondent contended that “the medical and other reasons for the examinations is so obvious that it cannot be stated in any clearer way” and a third where reasons were said to be “devoid of any details”.

Unfettered Discretion – In 18-008443 v Economical, the Applicant refused to attend a number of IE’s that were to address whether she had sustained a catastrophic impairment. One argument raised was the fact that the assessments were not arranged until two months after the filing at the Tribunal. However, it was in fact confirmed that the notice of in-person assessments being required, but not yet scheduled, was provided several months prior to the filing.

Referencing the psychiatric component, the Respondent had removed the assessor who had earlier assessed the Applicant from its roster, as a result of allegations of professional misconduct sometime after the initial assessment. The Applicant advised that they would attend a psychiatric assessment only if it was arranged with the same assessor. The Tribunal however confirmed that the Respondent had “unfettered discretion to choose its assessor.” Further, were one to allow concerns over the potential for privacy concerns and personal well being to be assigned more weight, this “would unfairly allow an insured to dictate the identity of those performing an IE, which is the purview of the insurer.”

Concluding, “[the Respondent] has a right to a full answer and defence where a CAT claim has been made and to be on equal evidentiary footing. To date, I find [the applicant] has frustrated that right due to her non-attendance at properly scheduled s. 44 IEs.”

A Live Question – In 18-006654 v Royal & Sun Alliance Insurance, the Tribunal considered whether the Respondent’s reason for requesting a CAT assessment – “Based on medical documentation, we do not agree that you have sustained a catastrophic impairment as defined by the legislation” – satisfied the requirements under s.45(3) of the Schedule. Finding this not to be the case, the reason provided “offers no meaningful explanation why it has determined that the applicant was not catastrophically impaired.” The Respondent contended that “the medical and other reasons for the examinations” is so obvious that it cannot be stated in any clearer way: “based on the medical documents submitted by the applicant showing a WPI of 57%, responding CAT insurer’s examinations are required.”

The Respondent had communicated regarding the intended assessments on multiple occasions. In one such instance they indicated that “there is a live question as to whether the WPI impairment rating of 57% as put forward by his assessors was accurate. The respondent further indicated that its assessors may disagree with this rating and, therefore, its own assessments are required.” The Tribunal found that “correspondences referred to by the respondent may articulate one reason for its decision…That is certainly clear. But simply expressing that an insurer wants an IE is not enough…For example, what in the ‘medical documentation’ did it take issue with? Why?”

Devoid of Details – In 19-002413 v Aviva, the Applicant attended an OT assessment regarding entitlement to ACB however did not attend a related Otolaryngologist IE. The assessment was requested on the basis that “We have insufficient information to evaluate your needs and qualification and your attendance is required at an insurer’s examination for the purpose of evaluating the same. Further details regarding the assessment details will follow.” This was found by the Tribunal to be “devoid of any details”, agreeing with the Applicant that they were in fact “boilerplate” reasons.

The Tribunal further considered the Respondent’s two alternative reasons, noting that the impairment needed to be “addressed and diagnosed” and that “an occupational therapist is unable to diagnose impairment”. However, the Tribunal found these two (considered separately and not in combination), remained “boilerplate”, with the second reason “completing a full circle”, being a restatement of the first, with “nothing meaningful by way (of) a rationale.”

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