*Complimentary Issue* Volume. 4 Issue. 29 – July 29, 2020

In this week’s issue of the LAT inFORMER, we report on 6 CAT assessment cases, 5 of which involve the same assessment facility. We highlight the salient points, including perhaps the single most glaring example of the LAT’s findings of an expert’s venturing well beyond the scope of their qualifications, or lack thereof.

Here are some of the salient points:

1. • Qualification of assessors in interpretation of the Guides
   • Substantive Right – An insurer shall pay for reasonable fees charged? versus
   • Qualified Right – where each component of the assessment is considered a “medical benefit” subject to the well-established ‘reasonable and necessary’ test
   • Causation
   • Importance of addressing and accounting for all available medical evidence

6 No’s By the LAT on CAT Assessments

Over the past two months alone, we have come across six instances whereby the Applicant was unsuccessful in seeking either a CAT assessment in its entirety, or the balance of a partially approved one.

“Zero” Certification – In 18-008775 v Wawanesa, an April 2016 loss, the Applicant sought entitlement to a number of benefits, including $12,979.50 ($25,659.25 less $12,6479.75 approved) for a CAT assessment, as well as a CAT determination. In seeking a CAT determination, the Applicant’s case for a 55% WPI was largely predicated upon a 49% WPI for mental/behavioural disorders, leading to an overall WPI of 62%, as compared to the overall 10% WPI determined by the Respondent’s assessors. Both of the Applicant’s psychologists, confirming “marked” impairments had failed to address the Applicant’s significant pre-accident psychological issues, and neither was available to testify at the hearing to provide any rationale or explanation for this “very apparent oversight.”

Most tellingly, the Tribunal found that the assessor “lacks expertise to assign a percentage for Mental or Behavioural Disorders in accordance with the Guides.” Further, he agreed with the Respondent that “he had ‘zero’ certification in the use of the Guides. [His] only training on the application and use of the Guides was a one-time 3-day course and he is not certified by the Canadian Society of Medical Evaluators for use of the Guides. Moreover, [the assessor]…was not certified by the Canadian Academy of Psychologists in disability assessments for the use of the Guides. While I do not find it necessary to disqualify [the assessor] outright as an expert in CAT impairment assessments, I do find that he failed to provide evidence to support his qualifications to assign [the Applicant] a 49% WPI for Mental or Behavioural Disorders.”

Ultimately, the Tribunal found that the Applicant’s WPI was at best “well below” the required 55% threshold. Further, the impairment ratings across all four domains ranged from “no” impairment to “mild”. The Applicant was found not to be entitled to the six denied components of the partially approved CAT assessment, none of which were found to have been necessary in coming to the conclusions reached by the assessors involved.

$26,400 CAT Assessment – In 18-003066 v Certas, a January 2015 loss, the Applicant sought a CAT assessment totalling $26,400. In denying entitlement, the Tribunal noted, “An OCF-19 for determination of catastrophic impairment has not been submitted. There is no indication on the evidence before me that a physician or neurologist, for example, has recommended proceeding with such an assessment in the intervening period.” Further, “taken as a whole, the evidence presented does not satisfy the ‘but for’ test of causation, but rather, is more consistent with a progressive degenerative condition.”

$24,400 CAT Assessment – In 18-007207 v Certas, a December 2015 loss, the Applicant sought a CAT assessment totalling $24,400. The Tribunal, denying entitlement, quoted an earlier Tribunal decision wherein it was noted that “By their nature, assessments are speculative…there is a likelihood that the assessment will prove negative.” However, it was further noted that “there must be some suggestion that the specified condition exists, and that further investigation is reasonable and necessary.” In the instant case, the Tribunal could “see no reasonable basis to conduct assessments to determine if the applicant is catastrophically impaired under Criterion 8.”

Qualified, Not Substantive Right – In 18-009077 v The Personal, an October 2013 loss, the Tribunal considered the request for a CAT assessment totalling $25,779.25. The Applicant argued that access to same was a “substantive” right, such that the Respondent “must pay”, as long as the fees were reasonable whereas the Respondent argued same to be a “qualified” right, subject to being both reasonable and necessary. The Tribunal noted that accepting the Applicant’s reasoning would have “significant policy implications” were the threshold only to be the reasonableness of the fees contemplated. Rather, “the correct test for entitlement to a catastrophic impairment determination assessment is reasonable and necessary.”

Continuing this thought, the Tribunal noted that “each of the modalities is a request for a medical benefit and the test for determining entitlement to a medical benefit is well-established as ‘reasonable and necessary’.” Considering the evidence provided, it was noted that there had been no therapeutic interventions for a considerable period of time, and that the OCF-18 in question was not helpful. The assessor of record also indicated as “unknown” certain key variables, also indicating that there were barriers to recovery, yet at the same time indicating barriers would be identified after all of the assessments. Concluding, the Applicant was not entitled to any of the 12 constituent assessment plans submitted.

Unknow(n) – In 18-006633 v Certas, a May 2015 loss, the Applicant sought a CAT assessment, consisting of 14 separate components, totalling $26,400. The Tribunal noted that the assessors of record failed to consult any of the health care practitioners actively involved in the Applicant’s case. The records of these practitioners provided “insufficient compelling evidence that any of these treating professionals believed that it was reasonably possible that [the Applicant] could be catastrophically impaired or that he should explore the possibility of CAT assessments.”

As was the case in the matter above, the assessor again indicated as “unknow” (sic) regarding numerous key factors. Denying the request for CAT assessment, the Treatment Plan itself was noted as “vague, minimal”, with no apparent review of any of the Applicant’s medical records on the part of the lead assessors.

Accident a Non Factor – In 18-011952 v Aviva, a December 2016 loss, the Applicant sought the balance of a partially approved CAT assessment of $16,000 ($27,158.40 less the partially approved amount of $11,158.40). The Tribunal denied the request, finding as a fact that “on a balance of probabilities, the accident was not a necessary cause of the impairments from which the applicant is suffering.”

Further, the Tribunal was “not presented with or directed to any evidence that the pre-existing injuries of the applicant were necessarily caused by or worsened by the accident…(and) the evidence does not establish on a balance of probabilities that that applicant would not have suffered the injuries ‘but for’ the accident.”

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