Volume. 5 Issue. 45- October 13, 2021

This week’s edition features a CAT determination wherein despite numerous significant credibility/evidentiary issues, the Applicant was found to satisfy the CAT requirements. Although, a pre-June 1 2016 definition case it succeeded on 3 marked impairments that would have satisfied the post-June 1 2016 definition.

The second, a self-employed case noteworthy because IRB was restricted to CRA filings, with perhaps a subtle invitation for the Applicant to consider a re-filing?

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Applicant’s CAT Status Jeopardized by Credibility Issues

CAT Adopts a Dangerous Course – The Applicant Ratnam was found to be catastrophically impaired after a September 2011 accident, in which he suffered a brain trauma that rendered him almost comatose. Following a relatively minor June 2014 accident, Ratnam, in 19-006706 v Primmum Insurance, once again sought a CAT determination. Ultimately, despite numerous significant evidentiary issues, the Tribunal found that Ratnam did meet the catastrophic impairment test and that, on a balance of probabilities, he would not have become catastrophically impaired but for the 2014 accident.

The Tribunal however described in detail the problems in establishing causation, noting that “Mr. Ratnam’s tailoring of his evidence and his deliberate attempt to frustrate Primmum’s psychological assessors from arriving at a meaningful diagnosis weigh heavily against him.” However, there was found to be “other evidence that tips the scale in Mr. Ratnam’s favour.”

Having effected a settlement of the 2011 claim, the Tribunal noted that “it was in Mr. Ratnam’s interest to ascribe the majority of the symptoms he currently suffers to the second accident, and that is what he did.” The Tribunal also found that Ratnam “was enhancing his complaints for effect. His blanket denial of evidence that tended to contradict the impression he was trying to create did nothing to enhance his credibility.” Further, “concerns over Mr. Ratnam’s evidence were not relieved by his performance at independent psychological assessments.”

The Tribunal, in reconciling the evidence, found that “When he embarked on a course of action to deliberately frustrate the efforts of Primmum’s assessors, Mr. Ratnam adopted a dangerous course. Had it been argued that the level of his refusal to cooperate rose to effective refusal to attend an insurance examination and he was barred from proceeding by virtue of s. 55(1) 2. of the Schedule, this hearing may have had a different outcome.”

Despite these issues, the Tribunal noted that “overall, despite my concerns over Mr. Ratnam’s evidence, it is clear that he is a shadow of his former self.” The Tribunal found that Primmum “ignores the documented decline in Mr. Ratnam’s mental health from 2014 through 2016. It treats Mr. Ratnam’s mental health as an event, not a process.” The evidence of Ratnam’s assessor was preferred, same having assessed him in 2014, at which time he was found not to be CAT, and then again in 2016, wherein three marked impairments were found.

This “more practical assessment of Mr. Ratnam as he actually presented in his daily life, and the marked deterioration between 2014 and 2016, is more convincing.” The impact of the 2014 accident “sent him on a downward spiral”, and the Tribunal accepted the “diagnosis of a Class 4 impairment in 3 spheres, that is, significant impediment to useful functioning in social functioning, concentration, persistence and pace, and decompensation in work or work-like settings.”

Tribunal Suggests Further CRA Filings May Change Matters for Self-Employed

Invitation For Subsequent CRA Filing – In Kfouri v TD Insurance (19-006916), Kfouri sought IRB based upon earnings as an employee of a limousine company, owned by her husband, which would be $989.08 weekly. The Respondent however contended that Kfouri is self-employed according to her tax filings, hence her weekly IRB quantum is calculated based on her income from self-employment. The Tribunal noted that the “Applicant’s employment status impacts how the calculation is made. The calculation for employed persons is based on lost income. Whereas the calculation for self-employed persons is based on the weekly loss from self-employment.”

The Tribunal found that “the Applicant’s position in this matter fails to appreciate that she reports income as earnings from self-employment only.” It was noted that her payments from the limousine company were infrequent, absent any source deductions. Earnings were reported on a T4A “Statement of Pension, Retirement, Annuity, and Other Income”, which is the form used by self-employed persons.” Had she been an employee, she rather would have received a T4 ““Statement of Remuneration Paid”. The CRA filings therefore evidenced no employment income, only that from self-employment. As a result, she was entitled to IRB at the weekly rate of $80.77, based upon $6,000 in income reported over the last fiscal year. The Tribunal however did indicate that “this amount may be adjusted according to additional tax filings, be it gains or losses, pursuant to section 4(6) of the Schedule.”

Related LAT inFORMER Issues:

“Employed” Doesn’t Mean Working & Working Doesn’t Mean “Employed”
‘Apprehension of Bias’ Requires Recusal + ‘Retroactive’ ACB
Credibility of CAT Assessors – Quality Over Credentials

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