Volume. 3 Issue. 15 – May 15, 2019
“Aggressive” Chiropractic Manipulation, Complicates a CAT Determination
Chiropractic Manipulation an Intervening Act – In 17-004722 v Wawanesa, establishing a WPI based CAT determination, the Applicant’s assessor opined a psychological WPI of 29%, with the applicable range confirmed as 15% to 29%. The assessor indicated that “if an Applicant could be 29%, he rates them at 29%”. Preferring the Respondent’s assessment of a 15% WPI, the Tribunal noted, “Arbitrarily choosing the highest end of the range is contrary to the intent of the Guides. Practically speaking, this method provides no assistance to the adjudicator, because a WPI rating is meaningless unless the adjudicator can understand the reasons why it was given.”
From a physical perspective, the Applicant alleged that an “aggressive chiropractic manipulation” was the reason behind her need for a cervical spinal laminectomy, decompression and fusion surgery. The Tribunal, noting that “both parties agree this case turns on causation”, preferred to rely upon the Applicant’s treating neurosurgeon “which makes his records the most relevant to this dispute”, as he is objective and not involved in the accident benefits system. All his records and assessments were conducted for treating purposes and not with the intent of dispute resolution.” The evidence confirmed that “more likely than not, the progression of [the Applicant’s] pre-existing congenital DDD and spinal stenosis led to her need for cervical spine decompression and fusion surgery”.
The Tribunal further found, “even if I accepted the symptoms that necessitated cervical spine surgery stemmed from the alleged ‘aggressive’ chiropractic manipulation, it would still not be causally linked to the accident, because the ‘aggressive’ chiropractic manipulation was an intervening act.” The accident “did not cause her to endure an ‘aggressive’ chiropractic manipulation that went wrong. The chiropractor was the cause of the ‘aggressive’ chiropractic manipulation, not the accident.”
LAT Act Invoked Twice
The Drugs Made Me (Not) Do It – In 16-001691 v State Farm, upon reconsideration, the Associate Chair was “satisfied that the Tribunal made a significant error of law by failing to consider whether to grant an extension of time to file an application pursuant to s. 7 of the Licence Appeal Tribunal Act” and that “there are reasonable grounds for granting an extension of time. As such, the Tribunal’s initial Order was varied and an extension of the limitation period was granted.
In its original decision, the Tribunal found that the Applicant “was not mentally incompetent through July 2016, and therefore did not need to address the argument that his mental incapacity stayed the running of the limitation period.” The Associate Chair however found there to be “evidence that he was experiencing a decline in capacity as well as drug addiction and abuse. He was later assessed as lacking in capacity to instruct counsel. I find it likely that that [sic] the delay in filing his application was related to his drug abuse and declining capacity, rather than any lack of intention to do so.”
“Considering [the Applicant]’s issues with substance abuse and declining capacity at the time that the limitation period was expiring, the relatively short delay, the lack of prejudice caused by the delay, and the existence of some merit to the application”, the Associate Chair concluded that there are reasonable grounds to grant an extension of time.
Not Blindsided as Active Engagement – In 18-001196 v Certas, the Applicant filed an application with FSCO concerning entitlement to NEBs in March 2016, however given the transition to the LAT, a mediation was never held, with the LAT filing then occurring in February 2018. “The applicant argues that his application to FSCO under the previous regime constitutes evidence of a bona fide intention to appeal to the Tribunal as well. Although [the Applicant] offers no reason for the significant length of time that elapsed between his FSCO and LAT applications other than the regime change, I agree that his conduct is evidence of a genuine intention to appeal.”
The Tribunal held, “Although it is true that limitation periods provide some certainty for the parties involved, I find that the delays in question—39 days for the ACBs, 29 days for the NEB and three days for the neurological assessment—while bordering on problematic, do not constitute the sort of hiatus in the proceedings that would meet the threshold for unacceptable delay…a delay of five weeks in the Tribunal’s calendar is, generally, not long.”
Given that the Respondent has actively engaged with the Applicant on many other matters relative to his claim, the Tribunal found that “the delay in question would not have blindsided [the Respondent] who “has been cooperative and attentive throughout the life of the claim, providing [the Applicant] with the requested documentation, responding to submitted treatment plans and adjusting the file”. Further, “the medical evidence—combined with the recent catastrophic designation and subsequent requests for continuing catastrophic assessments by [the Respondent]—is a compelling indication that the appeal has merit and should be determined on those merits.”
In Trending- LAT Q4 (Jan-Mar 2019) Statistics Released – What Happened to the Mandate?
SLASTO’s last quarter results demonstrate continued deterioration in active caseload over the prior quarter as reported in Stem the Tide.
Applications continue to rise, with the last two quarters being the highest on record. Case conferences continue as a clear priority.
LAT Year Over Year:
- Applications: 34% increase
- Case Conferences: 53% increase
- Early Resolution: 32% increase
- Hearings: 27% decrease
- Caseload: quarter over quarter growth from 18.5% to 6.7%
The unanswered question remains – where are the applications being held up?
Despite productivity progress this quarter, the LAT remains nowhere near what is required to maintain a manageable active caseload that meets the intended goal of expediency, procedural fairness and timely access to justice.
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