In the recent decision of Cyples v. Intact, the LAT clarified the test to be met for a catastrophic impairment (CAT) finding under criterion 8, as defined in s. 3.1(1)8 of the Statutory Accident Benefits Schedule (SABS). The case involved a motor vehicle collision that occurred on October 30, 2016, and a subsequent dispute as to whether the Applicant was CAT or not. Whereas each case will turn on its specific facts, this decision is helpful as it sets out, in some detail, what the tribunal ought to look at when deciding whether the criterion 8 CAT designation is met or not.
As noted by Vice Chair Maich, “catastrophic impairment is a legal test of impairment” defined under s.3.1(1)8 of the SABS as a finding of ‘marked impairment’ (Class 4) in at least three of the four spheres of functioning, or a finding of ‘extreme impairment’ (Class 5) in one or more domains of function. The spheres of functioning to be considered are activities of daily living, social functioning, concentration persistence and pace and deterioration or decompensation in work like settings. The burden of proof lies with the Applicant and proof must be provided on a balance of probabilities.
In finding for the Applicant, Vice Chair Maich undertook a detailed analysis of what needs to be considered under each of the four domains of functioning in order to reach a determination.
With regard to activities of daily living, Vice Chair Maich noted that any limitations in “self-care, personal hygiene, communication, ambulation, travel, sexual functioning, sleep, and social and recreational activities” must be related to a mental disorder and not a physical impairment. As well, “the qualities of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision and direction.” Importantly, Vice Chair Maich underlined that it is not the number of activities as much as “the overall degree of restriction or combination of restrictions” that matters when the rating is assigned.
With respect to social functioning, Vice Chair Maich noted that the focus needs to be on an individual’s capacity to interact appropriately and communicate effectively with other individuals. “Social functioning includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. Strengths in social functioning may be documented by an individual’s ability to initiate social contact with others, communicate clearly with others, and interact and actively participate in group activities. Cooperative behaviour, consideration for others, awareness of others’ sensitivities, and social maturity also need to be considered.”
Concerning concentration, persistence and pace, Vice Chair Maich noted that it is the concentration, persistence and pace required to perform and complete many activities of daily living that is being assessed. “Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work.” In doing so, one must consider the “frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.”
Finally, regarding adaptation, Vice Chair Maich noted that this sphere refers to “repeated failure to adapt to stressful circumstances” at work or in work-like settings. “Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers”.
When it came to experts and expert reports, the Applicant relied on the medical report of psychologists Dr. Kaplan and Dr. Levitt, whom found her to have a marked impairment in the domains of activities of daily living; concentration persistence and pace; and adaptation (and therefore CAT); whereas the Respondent relied on the report of Dr. Derry, also a psychologist, who found that the Applicant had suffered a moderate impairment in all four domains (and therefore not CAT).
While Vice Chair Maich dismissed a motion to exclude the report of Dr. Derry, he found the report to be less than convincing as Dr. Derry not only minimized the Applicant’s significant impairments but also tried to attribute them to physical and not psychological factors. “I find that Dr. Derry does not address her psychological condition in a meaningful manner, and minimizes the limitations and changes in life from pre-accident to post-accident… I find Dr. Derry omitted important considerations such as the applicant’s depressive amotivation and inability to engage in daily activities at least three days per week; he did not address thoroughly the diagnosis of Somatic Symptom Disorder by three other qualified assessors… nor did he convincingly explain why his evidence should be preferred.”
On the facts of this case, Vice Chair Maich found that the Applicant had met the Criterion 8 test and declared her CAT. It is a well written decision that will assist plaintiff counsel in assessing the strengths of their client’s case and the likelihood of a CAT finding under Criterion 8.
