COMPLIMENTARY ISSUE – Volume. 7 Issue. 10 – March 22, 2023

This week’s case involves an Applicant, who maintained employment from less than one year following her 2014 accident ongoing, yet nonetheless sought a CAT determination. The applicant, in ‘Employed CAT’, sought determination both under Criterion 6 (brain impairment with severe disability under the Glasgow Outcome Scale) as well as Criterion 8, (marked impairment in at least one domain with respect to mental/behavioural disorders). Ultimately, the evidence of ongoing employment confirmed no severe disability, however there was found to be a marked impairment in the domain of Adaptation.

LAT Update – What Difference Did A Year Make?

The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?

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CAT Confirmed Despite Ongoing Employment

Employed CAT – Injured in a June 2014 accident, the Applicant Russel, in 20-004264 v Dumfries Mutual, sought amongst other things a CAT designation, claiming entitlement both under Criterion 6 as well as Criterion 8. One argument relied upon by Dumfries to counter the claim was one of causation, suggesting both that pre accident health issues as well as several tragic post accident losses were at the root.

The Tribunal however rejected this argument, finding no evidence of disabling impairments prior to the accident, additionally that there was evidence of the impairments in question prior to the series of unrelated post accident tragedies. Dumfries also suggested that Russel was not credible, citing numerous inconsistencies in reporting. To this, the Tribunal found that “the evidence supports that she sustained a concussion and a mild TBI as a result of the accident which would impact the consistency of her reporting.”

In accordance with Criterion 6, Russel submitted that she sustained a brain impairment resulting in a score reflective of a “severe” disability on the Glasgow Outcome Scale (“GOS”). Dumfries again pointed to discrepancies in the evidence as to whether Russel had sustained a concussion. The Tribunal though was satisfied that Russel had for a fact proven on a balance of probabilities that she sustained a concussion/mild TBI.

Turning next to the resultant disability, it was confirmed that “despite the applicant’s limitations, the evidence supports that she has consistently worked since the accident, although not in the same capacity and occupation.”

Less than one year post accident, Russel worked as a cleaner in a hotel, as well as working as a nanny. From 2016 through 2018, she operated a daycare in her home, requiring 11 hour work days six days per week, following a “rigid schedule”. The Tribunal felt that it was important to caveat this with the fact that Russel “has had to work out of financial necessity”. Unfortunately, in August 2018 there was a kitchen fire while operating the daycare, that ultimately resulted in Russel losing her daycare license. Undeterred, despite this “troubling incident”, Russel was able to gain part-time employment at FedEx a few months later as a package handler and has been employed there ever since. She works 3 to 4 hours per day up to five days a week.

The Tribunal concluded that ongoing employment, wherein Russel “can independently follow a regular schedule, be punctual and have good attendance is not in-line with someone who cannot function independently within the home or out in the community.” In conjunction with evidence of an ability to assist others at church or work, and 15 days worth of surveillance confirming consistency in Russel’s activities, her disability was found to be “more compatible with the moderate disability category”, thereby not meeting the CAT status under Criterion 6.

The Tribunal then considered whether Russl qualified under Criterion 8, which requires a finding of a “marked” impairment in one of four domains with respect to mental/behavioural disorders. Perhaps somewhat surprisingly given the findings above, the Tribunal determined that Russel did suffer from a marked impairment (precludes useful functioning) in the domain of Adaptation (Deterioration in a work-like setting). It was found that both competing OT assessments supported this finding, as “the combination of her limitations in activities of daily living, social functioning and her post-accident vocational pursuits support that she has been unable to adapt to stressful situations. Further, she decompensates when faced with stressors. I find that the evidence supports that her limitations in this sphere are as a result of her psychological impairment.”

The Tribunal further reasoned that while Russel “has continued to work post-accident, I find the nature of the applicant’s occupation has drastically changed and that she has worked out of financial necessity. I do not find the evidence supports that she could return to work in her pre-accident capacity as an administrative assistant. Post-accident, she has worked primarily in physical occupations, which do not require the same degree of skill or function.” Dumfries submitted that evidence of continued post accident employment supports a finding that Russel had been able to adapt to their post accident disability.

The Tribunal noted that Russel’s license was terminated given that during the previously referenced kitchen fire, she left children under the age of 5 outside unsupervised. This was thought not to be evidence of Russel adapting to her post accident disability. Dumfries further referenced the fact that Russel had adapted following this incident by securing alternative employment at Fed-Ex. The Tribunal though found it significant that Russel “was assisted by a community agency in obtaining that job. She works 3 to 4 hour shifts per day as a package handler on modified work. I find the demands of this job involve simple sedentary tasks.”

Russel’s prior employment was stable, and she was able to juggle her volunteer work, social life and activities of daily living. Subsequently, she “has sought out the help of community resources in order to function at her current level, which I would describe as basic.” Russel was found to present with a “combination of physical symptoms, including pain and fatigue, as well as psycho-emotional distress and cognitive inefficiencies that are collectively imposing a negative impact on her ability to adequately compensate in light of stressors, and contributing to her avoidance of day-to-day activities that she normally took part in pre-loss.”

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