Complimentary Issue Volume. 8 Issue. 34 – September 25, 2024
This week the Tribunal considers the recently retired Applicant’s contention that the accident in question rendered her CAT with respect to Criteria 6, 7 and 8. Ultimately, the Tribunal needed only to consider Criterion 8 in coming to its conclusion. Largely at issue being the significant credibility issues found in the report/testimony of the IE assessor.
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Credibility Issues Abound with IE Assessor
IE Assessor Taken to Task – The Applicant Jones was a passenger on a motorcycle which struck a deer while travelling in rural Minnesota. Jones spent 9 days in the hospital, receiving care for a concussion, closed displaced fracture of the left collarbone which required surgical intervention, six fractured ribs on her left side, sacral fracture and closed bilateral pubic rami fracture, and other issues. She had no travel insurance at the time of the accident. This contributed to her decision to cut her hospital stay short and return home to Ontario where she could receive OHIP-funded healthcare, despite being unable to ambulate on her own. Given that she continues to suffer from a myriad of symptoms, in 22-013750 v Wawanesa, Jones submitted that her ongoing impairments constitute a catastrophic impairment pursuant to criteria 6, 7, and 8.
Adventure Seeker
Jones was a newly retired person whose passion was the outdoors. She regularly engaged in many outdoor and adventurous pursuits such as hiking, kayaking, skiing, golfing, and gardening. They owned a water-access only cottage. She rode motorcycles and snowmobiles and had just embarked on a multi-state motorcycle trip with her husband when the accident occurred and cut that trip short. When she wasn’t outside, she engaged in pursuits such as creating stained-glass art pieces and would go out to dinner with friends at least monthly. This level of activity is the baseline, or the measuring stick, for which to measure the Applicant’s mental and behavioural impairments. However, post MVA, Jones was described as a different person, having completely curtailed her adventurous pursuits.
No Activity Post MVA
Describing her post MVA activity level, Jones broke down crying during her testimony, indicating that “she walks, that’s it. When asked to expand on that, she advised that she walks 10 to 15 minutes and has a hard limit of 30 minutes but tries to walk daily for her physical and mental health.” Post MVA as well they sold their home and cottage. The home where they resided for 30 years was now less suitable for her, and she testified that her home harboured negative memories of the accident and her limited recovery and that she no longer wanted to be reminded of those events and moved to a new home. They sold their cottage because they stopped going as the trek to it, involving a boat ride and hike up from the water, was too arduous.
Jones went on to describe a life that is now void of social events. She avoids going out and exposing her facial scar in public and no longer engages in the physical pursuits she used to. In testimony, the Applicant highlighted that she tried some physical pursuits such as kayaking in the years following the accident but could not keep up with the physical demands involved in those activities. The drastic change in her lifestyle has a depressing impact on the Applicant and her relationships – particularly with her husband.
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Marked or Mild?
Jones’ expert psychiatrist concluded that she sustained a marked impairment in the spheres of ADLs, SF, and Adaptation. Conversely, Dr. C. West, for Wawanesa, concluded that Jones sustained at most a class 2, or mild, impairment with respect to all four spheres of function. Ultimately, the Tribunal much preferred the opinion and report of Jones’ expert over Dr. West and found that the changes in her pre and post accident life have caused her to suffer a catastrophic impairment pursuant to criterion 8 – mental and behavioural disorder. Jones was found to be a credible witness, and her testimony was supported by the other witnesses and was never questioned or impeached at the hearing.
Credibility Issues Abound with IE Assessor
Dr. West for Wawanesa suggested that Jones was malingering or over-reporting her psychological symptoms. On the Specific Measure for the Identification/Detection of Malingering, Dr. West reported that she scored above the acceptable cut-off score for suspected malingering. “Remarkably, Dr. West’s testimony was different from his report. In testimony, he unequivocally stated that the Applicant was not malingering. If anything, it is the contradiction between Dr. West’s report and his testimony that gives me the greatest credibility concerns… I conclude that the findings in Dr. West’s report are inconsistent with the assessment and Dr. West’s testimony. This is the dominant factor that causes me to prefer Dr. Abrams’ report over the report by Dr. West.”
Underdiagnosing
The Tribunal found that Dr. West “underdiagnosed the Applicant. Dr. West diagnosed her with an Adjustment Disorder, unspecified; chronic, but concluded that her symptoms are “at most mild.” I find this conclusion to be under-representative of the Applicant’s presentation, not only when compared to Dr. Abrams’ findings, but also when considering the results of the psychometric tests administered by Dr. West. For example, during one test, the BBHI-2, the Applicant’s scoring in depression, anxiety, somatic complaints, and functional complaints were high, very high, moderately high, and very high, respectively. Dr. West has failed to explain how these high scores correlate with symptom levels that are “at most mild.” Dr. West noted in his report that persons with a profile such as the Applicant’s tend to be very concerned about their pain and focused on seeking pain relief and that they see themselves as broadly disabled with respect to work and managing their activities of daily living. Yet, he found that her symptoms were “at most mild.”
Numerous Inconsistencies With IE
Similar inconsistencies can be observed through the reporting of another psychological test, the PAI, as in his report, “Dr. West stated that the Applicant had elevated anxiety and anxiety-related disorder scales, but that she did not evidence any clinically significant difficulties with respect to somatic complaints or depression. This is somewhat contradicted by Dr. West’s findings following the administration of the P-3. That test indicated that the Applicant demonstrated pain and somatic complaints equal to the average pain patient. The test findings are also contradictory to the conclusion of the report, which finds that the Applicant does not meet the criteria for a somatic symptom disorder and underdiagnoses her with an adjustment disorder. On the P-3 administered by Dr. West, the Applicant reported levels of anxiety, depression, and pain/somatic complaints equal to the average pain patient, and higher than non-patients.”
Finally, with respect to post-traumatic stress disorder, Jones “experiences heightened arousal and hypervigilance when driving and travelling in a vehicle. She also endorsed other symptoms of post-traumatic stress disorder such as recurrent, intrusive, distressing recollections and flashbacks of the accident. She avoids riding motorcycles. The Applicant’s PTSD symptoms worsened to the point that she and her husband sold her long-term home in an effort to rid herself of the memories of her accident and recovery. Despite this fact, Dr. West concluded that the only PTSD symptoms reported by the Applicant were nightmares which aroused her from sleep, and ruminating thoughts about the accident. Dr. West never came to the conclusion that the Applicant suffers from PTSD, which I find critically undermines the persuasiveness of his report.”
ADL
With respect to ADLs, Jones’ SSD and PTSD was found to significantly impede her useful functioning and cause her to suffer a marked impairment in the sphere of ADLs, particularly in the realm of travel, sexual function, sleep, and social and recreational activities. Her mood stops her from engaging in daily tasks because she feels stressed and overwhelmed when engaging in those tasks. The Applicant and Dr. Abrams acknowledged that the Applicant’s left shoulder injury precludes her from engaging in reaching and lifting activities but concluded that her mood was a contributing factor. While her initial impairment relates to the physical injury in her shoulder, it is her depressive and somatic symptoms that preclude her from learning how to complete activities, like styling her hair, with her uninjured arm.
Social Functioning
With respect to Social Functioning, Jones “does not socialize like she did prior to the accident. She attributed this to her scars and her desire to avoid conversations about them. She feels that she would be more social and have better mobility if she was pain free. While her “current level of social functioning may not amount to a marked impairment in a typical person… the Applicant was an extremely active person prior to the accident and the deficit in her functioning is stark when comparing the Applicant’s pre-accident functioning with her post-accident functioning.”
Adaptation
As for Adaptation, Jones’ “SSD, MDD, and PTSD significantly impair her ability to adapt to stressful situations and have impeded her ability to move on from her accident-related injuries… examples of failures to adapt include withdrawing from situations, experiencing exacerbation of mental dysfunction such as psychological decompensation, difficulties maintaining activities of daily living, problems with social relationships, difficulties completing tasks, problems interacting with supervisors and peers, and reduced stress tolerance…(Jones) has failed to adapt to her new reality. Her left shoulder impairment contributes to her physical dysfunction, but she is disproportionally overwhelmed by it and has not managed to find strategies to address her disability and adapt to it. She is similarly overwhelmed by her accident-related scars, to-date, despite the passing of time.”
3 of 4 Marked
Accordingly, the Tribunal easily found that Jones’ “presentation was consistent with the AMA guides examples for someone who sustains a marked impairment in 3 of the 4 spheres of function. “Assessing the significant changes to the Applicant’s function following the accident, the evidence demonstrates that she suffers from a marked impairment in the spheres of ADLs, SF, and adaptation. Accordingly, I find that the Applicant sustained a catastrophic impairment on criterion 8.”
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