Volume. 9 Issue. 10 – March 19, 2025
Yes to CAT, No to Post 104 IRB
This week we examine a recent matter wherein the Tribunal considers whether the applicant has sustained three Class 4 Marked Impairments in accordance with Criterion 8. The Tribunal then considers post 104 IRB, ultimately finding that despite being rendered CAT, the applicant had failed to counter the medical reports regarding IRB secured by the insurer, which were unchallenged as a result.
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No “Complete Inability” for CAT – Seriously injured in an October 2020 MVA, the Applicant Gordon, in 24-003141 v Certas, sought a CAT designation as well as post 104 IRB at the rate of $400/week, from February 3, 2024, to date and ongoing. Prior to the MVA, Gordon was described as a young, healthy, and high functioning person, who went to the gym daily, she enjoyed outings with friends, going to the mall and movies, and travelling. She had a large circle of friends, and she went out with them regularly. She had an active social life, was a caregiver for her mother, and she maintained two busy jobs.
Subsequent to the MVA, she has been unable to return to any form of employment, and her expert opined that she has sustained Class 4 Marked Impairments in accordance with Criterion 8 in the domains of social functioning, concentration, persistence, and pace (CPP), and adaptation, and a moderate impairment in the domain of activities of daily living (ADL). The expert for Certas agreed with the ADL rating, however opined there to be moderate impairments only, in CPP and adaptation, and a mild impairment in the domain of social functioning.
CAT
As both parties agreed that Gordon suffered from a moderate impairment in the domain of ADL, as such there was no issue in dispute, and the Tribunal found that she suffered from a moderate impairment in the domain of ADL.
Social Functioning
Both Dr. Shahmalak for Gordan and Dr. Sivasubramanian for Certas agreed that Gordon has suffered from multiple mental/behavioural issues, although only Dr. Shahmalak opined there to be a major depressive disorder. Both doctors also disagreed in terms of the severity of Gordon’s anxiety and depressive symptoms. Certas argued that Dr. Sivasubramanian’s opinion should be preferred as his diagnosis of adjustment disorder with anxious and depressed mood is consistent with the diagnosis of the applicant’s treating psychiatrist, Dr. Zhila Fazeli. The Tribunal however did not agree, finding “Dr. Shahmalak’s assessment to be more comprehensive than that of Dr. Fazeli in that his clinical interview was more detailed, and he conducted a thorough review of the applicant’s medical records. As such, I find that Dr. Shahmalak’s report depicts a clearer picture of the applicant’s mental and behavioural impairment, and I accept his opinion.”
Certas’ Expert Not Accepted
The Tribunal found that the evidence supports a finding that Gordon’s accident-related mental and behavioural impairments significantly impede useful functioning in social functioning, and that the evidence did not support Dr. Sivasubramanian’s mild impairment rating. In his report, Dr. Sivasubramanian indicated that “during the clinical interview, the applicant’s eye contact was good, her affect was broad ranging, reactive, and appropriate. She was able to smile, chuckle, and joke spontaneously. She had no trouble maintaining a conversation. He also indicated that she has good relationships with friends and family, and that she maintains regular contact with them. She resumed a relationship with her father following the accident, and she sees him every week…However, Dr. Sivasubramanian’s findings are inconsistent with the evidence before me.”
Dr. Sivasubramanian suggested that Gordon’s relationship with her mother as good, however he did not reference the fact that she now becomes aggressive and angry with her mother, resulting in fights. In addition, while she attended her brother’s wedding, she did not participate in the pre-wedding activities, kept mostly to herself, cried, and left the wedding early. While she has contact with some of her friends, these interactions are initiated by them, and she has become significantly withdrawn and does not go out to the same extent as she used to. Accordingly, the Tribunal found that Gordon had met her onus of proving that she suffers from a marked impairment in the domain of social functioning
Concentration, Persistence, and Pace
The Tribunal found that the evidence shows that Gordon’s accident-related mental and behavioural impairments significantly impeded useful functioning, such that she met her onus of establishing a marked impairment. As noted by Gordon’s OT assessor, prior to the accident, she had no difficulty with cognition, memory, concentration, attention, or judgment and overall maintained a busy schedule. Following the MVA however, she “demonstrated ongoing difficulty with memory, attention, concentration, persistence, and motivation. She had difficulty with task initiation and plan development, and she did not have effective means of managing many of the activities presented to her as the assessment progressed.
Gordon’s Expert
Dr. Shahmalak for Gordon “concluded that the applicant’s poor emotional regulation would likely result in workplace conflict with co-workers or customers, motivation, and/or avoidance/withdrawal. The applicant’s cognitive difficulties (impaired memory, concentration and attention, and impaired multi-tasking), and anergia would likely lead to poor decision-making, increased errors, and decreased task efficiency at her workplace. Further, the applicant has moderate stress intolerance, as stress, especially work-like stress, seems to cause either withdrawal and/or the worsening in her emotional symptoms.”
Certas’ Expert Again Not Accepted
In his report, “Dr. Sivasubramanian indicated that during his clinical interview with the applicant, there was no evidence of gross thought disorder, although she was somewhat inconsistent in her testimony at times. She had no word-finding difficulties. She drives independently. She maintains control of her medication and finance. However, this opinion was inconsistent with other evidence before me. While he claims that the applicant maintains control of her finances, Ms. Rozenfeld indicated that the applicant’s mother helps her manage her finances, and the applicant testified that she misses bill payments and has non-sufficient funds charges in her account.”
Inconsistency Between Certas’ Experts
Noting that Dr. Sivasubramanian had suggested that Gordon did not demonstrate significant difficulties during her examination, in contrast, “Dr. Zakzanis indicated in his neurocognitive behavioural assessment report…that the applicant was tangential and superfluous in her response at times during the assessment, that she took several short breaks to manage her anxiety and somatic symptoms, that she occasionally requested instruction repetition, and that her working memory issues were apparent. Moreover, Dr. Zakzanis found that, based on his objective psychometric examination, the applicant is functioning below his estimate of her premorbid intellectual and cognitive capabilities. Her cognition is primarily characterized by disturbed supervisory attentional processes that impede her information processing ability. Moreover, difficulties with planning and foresight – aspects of executive function – are variably compromised.”
Adaptation
As compared to her previously high functioning self, it was noted that “since the accident, the applicant has not returned to work, she is limited in her ability to get along with others, including her family and friends, and she has very limited interactions due to pain symptoms, fatigue, anxiety, feeling frustrated, low mood, low self-esteem, and reduced inner drive.” Her expert, Dr. Shahmalak “noted that the applicant’s mental state was depressed. She was able to follow simple instructions, but she had some difficulties maintaining her attention. She had difficulty with memory retrieval…did not demonstrate the capacity to maintain work-appropriate engagement and emotional demeanour during the assessment, and there was evidence of impairment in social functioning that would interfere with her capacity to maintain work-like relationships with peers and supervisors.” And again, the evidence did not support Certas’ expert’s moderate impairment rating.
CAT Confirmed
Given the Marked impairment in this final domain, Gordon satisfied the Criterion 8 test of three Class 4 Marked impairments. Accordingly, Gordon had established that she sustained a catastrophic impairment under Criterion 8.
IRB
CAT Reports do Not Suffice
Gordon contended “that the test for entitlement to an IRB is a legal test, not a medical one, and that she is not required to arm herself with expert reports speaking to this test for entitlement. The applicant also submits that there is ample medical evidence to support her inability to work. Specifically, Dr. Shahmalak concluded that she suffers from a marked impairment due to her mental and behavioural impairment in the functional domain of adaptation and that she is unable to function at work. Further, while Dr. Sivasubramanian indicated in his report that the applicant does not meet the test for entitlement to post-104-week IRB, he also opined that the applicant is unable to work on a full-time basis.”
Certas’ Evidence
Certas submitted that Goron’s claim for IRB should be dismissed on the basis that she had not tendered any opinion evidence indicating that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. For their part, Certas relied upon a transferable skills analysis and labour market survey, an orthopaedic surgeon assessment report, a neuropsychological assessment report and a psychiatry assessment report. The Tribunal also took note of Gordon’s expert having confirmed that “adaptation is distinct from employability, which is determined by many factors, including physical and mental impairments, transferable skills, education, experience, job requirements, and labour market conditions. Further, Dr. Shahmalak did not provide an opinion in his report regarding whether the applicant suffers from a complete inability.”
IE’s Not Contested
The Tribunal found that “the only opinion evidence relating to the applicant’s eligibility to an IRB before me was tendered by the respondent, and the applicant has presented insufficient evidence to challenge the respondent’s evidence.” Gordon point to the fact that Certas’ psychological expert, while opining there to be no complete inability, also confirmed that “he did not believe that in her current state that the applicant would be able to manage full-time employment, and that if the applicant’s psychiatric symptoms were to be under better control in the future, she may be able to return to full-time employment from a mental health perspective.” Gordon argued that “little weight should be afforded to Dr. Sivasubramanian’s inconsistent findings, I find that even if I do not accept Dr. Sivasubramanian’s evidence regarding the applicant’s entitlement to an IRB, it remains that the applicant has not met her burden of proof regarding this benefit.”
Concluding, “I find that the applicant has not demonstrated that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. Therefore, she is not entitled to an IRB.”
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