Volume. 6 Issue. 1- January 12, 2022
This week, a Post June 1 2016 CAT determination decision, where the Tribunal considers whether an Applicant sustained a catastrophic impairment under the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale as a result of his minor traumatic brain injury. One central issue being the improper role played by an OT in formulating the determination on the Applicant’s behalf.
In the second case, the Tribunal considers the appropriate role of an OT in the submission of an OCF18 for a CAT assessment. Is a non-physician listed in Part 4 of an OCF 18 proposing CAT assessments compliant with s45 of the Schedule?
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CAT Assessment Rendered Non-Compliant
Non-Compliant Cat Assessment Afforded no Weight – In Abdi v TD Insurance (19-008845) Abdi contended that he sustained a catastrophic impairment under the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale as a result of his minor traumatic brain injury.
To be successful, Abdi was required (s.3.1(1)4(ii) of the Schedule) to establish that he sustained a traumatic brain injury that when assessed in accordance with the Glasgow Outcome Scale (the “GOS”) and the Extended Glasgow Outcome Scale (the “GOS-E”) results in a rating of Severe Disability six months or more post-accident or a Lower Moderate Disability one year or more post-accident.
At the outset, the parties disagreed as to the Tribunal’s role in applying the GOS-E. Abdi contended that it was for the medical experts to make the ultimate determination regarding the GOS-E, with the Tribunal required to ultimately accept the opinion of the expert that carries more weight. In such a formulation, the “medical experts are the triers of fact and that the test for a TBI in s.3.1(1)4(ii) is a medical test, not a legal test.” TD countered, and the Tribunal agreed, that the Adjudicator was in fact the trier of fact. Noting that there was necessarily a requirement to consider the competing medical opinions “it is trite law that the test for catastrophic impairment is a legal test and not a medical test.”
On the medical evidence, the Tribunal found that “the opinion of the applicant’s experts carry little weight”, specifically referencing that fact that the GOS-E assessment relied upon was administered by an occupational therapist. While the GOS-E is “deliberately detailed to allow the scales to be used by the non-specialist”, this did not “mean that a GOS-E assessment administered by an occupational therapist complies with the GOS-E Guidelines or the Schedule”. While “there is no doubt that an assessment by an occupational therapist to determine a person’s disabilities and handicaps is a very useful tool for the physician or neuropsychologist doing a GOS-E assessment, an occupational therapist is not qualified to provide an opinion on causation.” Therefore, the assessment relied upon was found not to comply with either the GOS-E Guidelines or the Schedule.
Further, it was determined that the O.T. had administered an abbreviated version of the required questionnaire, with there being “nothing in the GOS-E Guidelines that allows for an abbreviated interview”. This provided further confirmation that there could be no weight afforded Abdi’s expert report, as the GOS-E attached to the report was not conducted in accordance with the GOS-E Guidelines. The Tribunal also opined it to be “more likely than not”, that the expert did not review the structured interview completely in formulating his opinion, as he had missed a number of errors in that report.
It was also confirmed that a “disability must be a result of the TBI and not other psychological or physical injuries…that the injury is an event that has occurred at a particular time, but not all changes that have taken place following the event will be due to the injury.” Therefore, “psychological and physical impairments that are not related to or caused by the TBI are not considered in the GOS-E.”
Ultimately, given the errors found in Abdi’s expert report, and the little weight afforded the opinions contained within, Abdi “failed to prove on a balance of probabilities that his traumatic brain injury, when assessed with the GOS-E Guides, results in either a Severe Disability (either Upper or Lower) six months or more after the accident or a Lower Moderate Disability one year or more after the accident.”
OT More Qualified Than Most
More Qualified Than Most – In Amoako v Aviva (20-000377) , at issue was “whether a non-physician listed in Part 4 of an OCF-18 for CAT assessments complies with s. 45 of the Schedule.”
Aviva contended “that since the assessment recommended in the OCF-18 is “in connection with” a CAT determination, the OCF-18 submitted must be prepared by and signed by a physician.” The Tribunal however noted that s.45(2)1 “clearly states that “an assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician.” Had the legislature “intended to say that “a [Treatment and Assessment Plan/OCF-18] in connection with a determination of catastrophic impairment shall be conducted only by a physician” the legislature would have expressly done so.”
The Tribunal noted that s.45(2)1 also confirms “…but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.” This served to demonstrate that a physician “may be assisted by as many regulated health professionals to do so as is reasonable and necessary. Given the complexity of a CAT determination and the specialists involved, this makes sense.”
The Tribunal did however note that Aviva had advanced this position successfully before the Tribunal in A.B. v. Aviva Insurance Canada. However the adjudicator here disagreed and noted that in that decision there was a “conflating (of) the completion of an OCF-18 recommending CAT assessments with the s. 45(2)1 requirement that an OCF-19 be completed by a physician. Second, the adjudicator’s analysis stemming from this error was not particularly fulsome.”
The Tribunal found it unclear what “mischief” Aviva believed to be in play, when the OT who authored Part 4 of the OCF18 in dispute “is rather qualified to do so”. The OT in this matter had both a Certificate in CAT Impairment Evaluation (C-CAT) and a designation of “C-CAT (Functional Observer)” from the Canadian Society of Medical Evaluators.
It was therefore “difficult to accept Aviva’s position that she is somehow incapable or prohibited under s. 45(2)1 to complete and sign the form for recommending CAT assessments. Indeed, she may very well be more qualified to complete an OCF-18 recommending CAT assessments than, say, a random family physician who has no knowledge of the Schedule, the AMA Guides, or the applicant’s impairments.”
Concluding, the “Schedule provides no support for Aviva’s interpretation that Part 4 of an OCF-18 recommending CAT assessments must be completed by a physician.”
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