On April 19, 2021, the applicant, a self-employed bicycle delivery person, was involved in a motor vehicle collision. As a result, the applicant required surgery for physical injuries and qualified for post-104-week income replacement benefits. His non-catastrophic medical rehabilitation/attendant care limits were eventually exhausted.
A preliminary issue arose as to whether the applicant’s roommate could testify. The witness statement was late served – two days before the hearing due to translation issues. Pursuant to Rule 9.3 of the Licence Appeal Tribunal (LAT) Rules, the adjudicator admitted the witness’ evidence despite the late filing. The respondent did not bring a motion to exclude the evidence and the LAT found the applicant would suffer greater prejudice if he was unable to present corroborating testimony.
At issue before the LAT was whether the applicant suffered a catastrophic impairment (CAT). The LAT found the applicant did suffer a CAT under Ontario’s Statutory Accident Benefit Schedule Criterion 8 – Mental and Behavioural Disorders or the four spheres of functioning. The American Medical Association Guides requires a marked impairment under three of the four spheres of functioning or one extreme impairment under one of those spheres.
The applicant relied on his own testimony along with the testimony of a psychologist, Dr. Steiner; an Occupational Therapist (OT), Denna Rogozinsky; and the testimony of his roommate.
The insurance examination (IE) CAT report found the applicant was found to have only one marked impairment under the sphere of adaptation. Since both parties found a marked impairment in that sphere, it was not under dispute. The areas of dispute included Activities of Daily Living (ADLs); Concentration, Persistence and Pace (CPP); and Social Functioning (SF). The IE CAT report found a moderate impairment in ADLs and CPP with mild impairment in SF.
With respect to ADLs, the LAT stated it is not simply the number of activities that are restricted but the overall degree of restriction or combination of restrictions. The LAT preferred the evidence of psychologist, Dr. Steiner and the applicant’s roommate to confirm he had suffered a marked impairment in his ADLs. The applicant required cueing and support across numerous ADL functions and was awkward and housebound which was backed by Dr. Steiner and the roommate. Specifically, Dr. Steiner provided extensive evidence in support of each of his ratings and had met with the applicant multiple times unlike the respondent’s IE assessor, Dr. Sharma. Dr. Sharma did not incorporate information from multiple sources or from the co-assessor, Mr. Kaplun or his own mental health status exam and diagnosis into the spheres of function.
With respect to CPP, the LAT again agreed with the applicant’s assessors, who painted a fuller picture of the applicant and the challenges he faces with maintaining attention, focus and concentration (for example, reading, having a conversation, watching television and filling out paperwork). Further, Ms. Rogozinsky, OT who assessed the applicant under section 25 of the SABS, also confirmed the extent of assistance required to complete a task within the applicant’s CPP.
The insurer’s IE assessor, Dr. Sharma, had only confirmed a moderate impairment in this sphere, acknowledging the diagnosis of chronic pain disorder with psychological factors, adjustment disorder with depressed mood and anxiety. However, the LAT found no examples to substantiate the reasoning of the IE assessor in coming to this rating, and the IE OT assessor provided very little information regarding the applicant’s function.
With respect to SF, the LAT again preferred the evidence of the s. 25 assessor, Dr. Steiner because he contrasted the applicant’s pre-accident and post-accident SF, with examples. As well, the applicant’s roommate’s evidence was consistent with the applicant’s own testimony. while the IE assessors did not probe further into reasons for the asserted impairments in this sphere.
Takeaway
Ultimately, the LAT found four marked impairments under Criterion 8. When dealing with this criterion, it is important to keep in mind that corroborative evidence and ensuring the assessing experts review all treating records are key to proving CAT a was sustained.
