Volume. 8 Issue. 31 – August 21, 2024
This week, a deep dive into the first decision of the Tribunal where there was confirmation of an “extreme” impairment. The applicant, diagnosed with autism well prior to the MVA, was described as having “marked” impairments as a result, prior to the MVA.
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Extreme Impairment Confirmed in CAT Decision
From “Marked” to “Extreme” – Prior to the July 2018 MVA, the Applicant Abou-Gabal had been diagnosed in 2014 with autism, and had been receiving ODSP payments in 2018, prior to the MVA. In the MVA, Abou-Gabal had been struck by a vehicle while riding her bicycle. As a result of the injuries sustained in the MVA, Abou-Gabal, in 23-000939 v Economical, sought a CAT designation, attendant care benefits and additional medical/rehabilitation benefits.
Preliminary Issue- Failure to Attend IE
Economical raised a preliminary issue, contending that Abou-Gabal was barred from seeking a catastrophic impairment determination because she failed to participate in the s.44 examinations. They contended that during each assessment the applicant did not communicate with the assessors and often remained in bed. This was in contrast, it argued, with evidence in the records that show the applicant speaking with medical professionals while in hospital. Abou-Gabal contended that “she participated in the assessments to the best of her abilities, given that she has been diagnosed with autism spectrum disorder (“autism”). She argued that she often does not speak as a result of her autism and other impairments. In fact, she argued that she did not speak to either the s. 44 or s. 25 assessors. She argued that she should not be discriminated against as a result of her disability.”
The Tribunal found that “despite the respondent’s evidence that the applicant has spoken to medical professionals in the past (i.e., to hospital staff during her hospitalizations in 2019 and 2020), I find that this is not sufficient to convince me that she was able to speak with all medical professionals at any time. Clearly, her non-communication with both her own assessors as well as the insurer’s suggests that the issue is more related to her autism and not a deliberate attempt to thwart assessors, which is what s. 55 is meant to protect against.” As a result, the Tribunal exercised its discretion to allow Abou-Gabal to proceed with her application despite the non-compliance.
Applicant is Not Barred from Testifying
Economical further argued that Abou-Gabal “should be barred from testifying because she did not participate in any of the assessments, meaning that the respondent did not know what evidence she would be presenting. The applicant argued that it would be prejudicial to not allow an applicant to testify at her own hearing.” The Tribunal found that “it would be extremely unfair and unusual for an applicant to be denied the opportunity to testify at her own hearing if she elects to. I did not find any prejudice to the respondent in allowing the applicant to testify and be cross-examined.” This was ultimately rendered moot as when provided the opportunity to testify, she did not speak and therefore the testimony did not proceed.
Pre and Post MVA Health Issues
The Tribunal made note of what it referred to as the Applicant’s complex medical history, both prior to and subsequent to the MVA. In 2014, Abou-Gabal was diagnosed with autism, a neurocognitive disorder that affects her communication and social skills. She applied for and began receiving ODSP payments in 2018, prior to the MVA. In 2019, she was hospitalized and diagnosed with bipolar disorder. In 2020, she was hospitalized twice and diagnosed with autoimmune hepatitis.
Abou-Gabal contended that the MVA was a necessary cause of her post MVA impairments, and that “but for” the MVA she would not be as impaired as she was at present. She described herself as a “resilient young woman”, with the ability to function with assistance. Examples being the ability to dress herself with cueing and supervision, could eat independently (except for sharp objects) and could ride her bike with supervision. Following the MVA however, she developed psychological symptoms that prevented her from functioning to the same degree, often leaving her mute and isolated in her room for prolonged periods.
Post MVA Diagnoses
Abou-Gabal relied upon the evidence of her father, that largely informed the opinions of her s.25 assessor. She was diagnosed with (1) major depressive disorder (2) worsened autism; and (3) bipolar disorder. The assessor “stated that since the subject MVA, the applicant “experiences persistent preoccupation with physical symptoms which has led to depressive and anxiety symptoms” which have “compounded Ms. Abou-Gabal’s psychiatric impairments.” He further opined that her function “has decreased significantly following the accident” and that “it is possible that the injury to the head as well as the stress and pain following the accident have contributed to the onset of her bipolar disorder”.
Economical contended that the impairments denoted were not related to the MVA, as “her current level of functioning matches her functional presentation pre-accident, meaning there has been no change…the testimony of the father, which also forms the basis of (the) report, is unreliable because he is biased towards his daughter…the conclusion…regarding bipolar disorder is improper.”
Pre vs. Post MVA Functioning
Economical relied heavily on the 2014 report of Holland Bloorview Kids Rehabilitation Hospital and on the 2018 application for ODSP filled out by the family Physician. In the 2014 report it was noted that the applicant “is often mute and isolated for days, cannot sustain school, often has a catatonic-like state, has psychomotor retardation, and is dependent on her parents. Furthermore, the ODSP application listed a number of areas of function (i.e., impulse control, selecting clothes, housekeeping, etc.) as “severe or complete limitations on most occasions to completion of the task”. These two documents, it argues, demonstrate that the applicant’s post-accident functional impairments, as observed by the various assessors, mirror her pre-accident function.
Ultimately however, the Tribunal agreed with the applicant, finding that the applicant’s functional impairments associated with psychological diagnoses would not have been present “but for” the subject MVA.
Father’s Evidence Unreliable?
Economical argued that the father was an unreliable source of information because, as a parent, he had a vested interest in securing additional support for his daughter. It argued that basing the entire case for causation on the evidence that the father gave to (the assessor), some of which is contradicted by the medical records, is not a solid foundation.
The Tribunal however opined that “While it is undoubtedly true that parents can be biased towards supporting their children’s cases, this does necessarily mean that a parent’s evidence is unreliable and I cannot wholly disregard collateral testimony where doing so would leave the applicant with no way to advocate for herself. I am satisfied that the applicant did not willfully thwart assessments through her non-communication and believe that this is more likely due to her autism. This leaves us with the father’s evidence as the primary source of her case.”
It was noted that there were limited options available to corroborate or disprove the father’s evidence. It was acknowledged that certain of the pre-accident medicals suggested that prior to the MVA there was a greater level of functional impairment more severe than the father’s testimony. It was noted that the Holland Bloorview Report was completed four years prior to the accident and could present an entirely different picture of the applicant’s functionality compared to immediately prior to the accident. As for the 2018 ODSP report, “this is a snapshot in time, which the father claims was based more upon the family doctor’s review of the 2014 report and less on his daughter’s actual functionality. Beyond checkmarks on an application, it provides little value regarding the applicant’s individual case, which is important given the unique presentation of individuals with autism. Moreover, I found the father to be a credible witness…He struck me as an honest advocate for his daughter’s well-being”.
Bipolar Diagnosis Not MVA Related
Finally, Economical contended that the finding that the applicant’s bipolar disorder was triggered by accident-related depression is not supported by the literature. Instead, they suggested that the bipolar disorder was more likely precipitated by the applicant’s autism diagnosis, meaning it was not accident related.
To this, the Tribunal reasoned that “this argument misses the point that the applicant’s depressed state following the accident worsened the symptoms of her autism in a way that would not have happened but for the subject MVA. This alone could satisfy the test for causation, regardless of a finding on the causality of the applicant’s bipolar disorder.” The assessor “accept(ed) that the bipolar disorder may not be accident related, but even without this certainty he is confident in stating that the other psychological impairments (depression and worsened autism) are accident related.” The Tribunal “place(d) particular weight in the conclusion that the accident worsened her autism symptoms in a way that may not have happened but for the subject MVA, as this matches the testimony of the father about what he observed with his daughter during that key time”.
MVA a Necessary Cause
Ultimately, Abou-Gabal’s assessor’s conclusion regarding causation was found as reasonable and the Tribunal concluded that Abou – Gabal’s “functional impairments related to psychological diagnoses would not have been present but for the subject MVA. The MVA was not the sole cause of her impairments, but a necessary cause”.
Extreme Impairment
The Tribunal determined that Abou-Gabal sustained an extreme impairment in the area of adaptation and was therefore deemed catastrophically impaired. Her assessor noted that prior to the accident, based on the testimony of the father and the medical records that Abou-Gabal was functioning on a moderate to marked impairment level. Since then, there had been a decreased level of functioning. Relying as well upon observations of the OT, he was able to conclude that Abou-Gabal had “demonstrated severely reduced work adaptation” and that currently “she is not able to even persist to transfer out of the bed. This change leaves the doctor with the conclusion that she now suffers an extreme impairment in this sphere.”
The Tribunal agreed with the applicant and found that “she has met her onus of demonstrating that she has sustained an extreme impairment in the sphere of adaptation…I accept the findings of (the assessor) who believes she is no longer able to persist through stressors.” This satisfied the definition of an extreme impairment, an impairment that “precludes useful functioning”.
CAT Precluded Based Upon Pre MVA Functional Levels?
Economical further argued that Abou-Gabal “cannot be deemed catastrophically impaired under criterion 8 because if an applicant is deemed to have extreme impairments (or four marked impairments) pre-accident, they cannot be deemed catastrophically impaired as a result of a subject accident, as this legal designator existed prior to the occurrence of the accident.”
The Tribunal found this line of reasoning “to be unconvincing. By its logic, any individual with a pre-existing functional impairment (such as autism) could never be designated as catastrophically impaired as a result of a MVA if they had severe functional impairments before the accident. This is an absurd conclusion which would rule out vulnerable populations from accessing statutory accident benefits.”
From Marked to Extreme
Concluding, the Tribunal found that Abou-Gabal “has moved from a marked impairment to an extreme impairment in the sphere of adaptation. She now requires assistance in almost every area and appears unable to adapt to new situations, leaving her often in her room isolated. (The OT) testified that during her assessment of the applicant she screamed uncontrollably for many minutes after being greeted by the assessor. Per the father’s testimony she is now completely dependent on her parents.”
The Tribunal found that the Guide’ reference to “extreme” aptly described Abou-Gabal’s current condition. The Guides references “a person who cannot tolerate any change at all in routines or in the environment, or one who cannot function and who decompensates when schedules change in an otherwise structured environment, has an extreme limitation of adaptive functioning.” Accordingly, Abou-Gabal “has sustained a catastrophic impairment under criterion 8 as a result of having an extreme impairment in the area of adaptation caused by the accident.”
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