Volume. 6 Issue. 17 – May 11, 2022
This week in ‘Marked Impairment Across All Four Spheres’, the Tribunal for the first time considers post June 1, 2016 CAT provisions in regards to Criterion 8. While the new definition requires three marked impairments rather than just the one, the Tribunal found that the applicant sustained marked impairments across all four domains.
In another CAT case, the Tribunal in ‘Brother’s Private School Tuition Reasonable and Necessary’, considers whether payment for the Applicant’s brother to attend the same private school was reasonable and necessary and then whether same was payable.
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Post June 1 CAT Confirmed – Marked Across All Four Spheres
Marked Impairment Across All Four Spheres – The Applicant Bishop, injured in a June 7, 2016, accident, employed as instructor therapist with autistic children for ten years prior to the accident, was found to have sustained marked impairments across all four spheres of functioning under Criterion 8. TD, in 20-006964 v TD Insurance, contended that Bishop’s significant pre-accident medical history in the years leading up to the accident was ultimately the main cause for her ongoing demonstrated impairments. However, the Tribunal found that the evidence supports that Bishop was still functioning at a much higher level than she had been following the accident, and further that both parties’ assessors confirmed an accident related psychological impairment.
TD also challenged the neutrality of Bishop’s assessor, given that he had written an article in June 2016 in which he disagreed with the new requirement for a person to have three versus one marked impairment to meet the threshold for CAT impairment. He testified that “there is significant overlap between the four spheres of functioning and that opinions regarding the law and science do not always meet.” The Tribunal did not find his assessment or his testimony to be unneutral, as “the fact that it is his medical opinion that the threshold for CAT should be lower does not make him an advocate for the applicant.”
Turning then to the relevant spheres of functioning, Bishop’s abilities regarding Activities of Daily Living (ADL) were addressed. TD’s assessor’s opinion regarding CAT was discounted, as a subsequent post 104 IRB assessment by the same assessor eight months later described a person with a more serious psychological impairment. Further, the opinion was based upon an OT assessment found to be “too basic”, as it was comprised of tests geared towards people with Alzheimer’s or other geriatric conditions, therefore the performance of said tasks “does little to convince me that the applicant’s impairment levels are mild.” The Tribunal determined that with respect to ADLs, Bishop “does not do them consistently or as efficiently in the same way she did pre-accident. Referencing the aforementioned post 104 IRB assessment, that report found Bishop to be “capable of doing her activities of daily living but on an irregular basis, with pacing and the need for a couple days off afterwards due to exacerbation of pain.”
With respect to Social Functioning, the Tribunal found the evidence to support “that the applicant’s social functioning has significantly changed post-accident as she is now bitter, angry, confrontational, anxious, and depressed, which has had more than a mild impact on her relationships and social functioning.” As for Adaptation, the Tribunal agreed that Bishop’s “limitations would carry over into her ability to adapt in the workplace”. As a case in point, TD’s assessor confirmed that Bishop “presents as quite deteriorated compared to my last assessment”. Further that “performance of higher-level activities, such as in a vocational setting, that is sustainable in the long-term, with regular attendance and reliable performance, is highly unlikely.”
While not required for a CAT determination, having determined marked impairment across three domains, the Tribunal did address Concentration, Persistence and Pace (CPP). TD submitted that Bishop had a long history of cognitive deficits dating back to 1987 when she had brain surgery. However, the Tribunal found that the brain surgery significantly pre-dated the accident, and in fact that prior to the accident, Bishop “was able to juggle working full-time, attending night courses and being Chair of her Union, all while being a single mom”, thereby functioning at a much higher level pre-accident. Therefore Bishop’s “chronic pain, depression, anxiety, and cognitive deficits has resulted in a marked impairment.”
Private School Tuition for Applicant’s Brother Reasonable and Necessary
Brother’s Private School Tuition Reasonable and Necessary – In 20-009986 v Wawanesa, the Tribunal concluded that payment for three years of tuition ($97,979) for G.H.M.’s twin brother at the same school G.H.M. was attending was a reasonable and necessary rehabilitation expense. G.H.M., 6 years old on the date of loss, was rendered CAT as a result of the subject accident. Wawanesa had previously approved funding for G.H.M.’S private school attendance. The parents of G.H.M. indicated that the brother’s presence at the school “resulted in positive rehabilitative benefits for the applicant… there were significant improvements to her communication skills as she began speaking in an audible voice and it also resulted in improved social engagement.”
The Tribunal found that the “evidence also supports that the applicant’s brother’s attendance at [The school] has resulted in significant improvements to the applicant’s communication skills as since his transfer she has been able to communicate in an audible voice. Her brother’s presence at [The school] has also resulted in a positive impact on the applicant’s social engagement with her peers.” Accordingly, “I find the plans will achieve their stated goals of reducing the effects of the applicant’s disability.”
Wawanesa’s assessor “raised ethical concerns about using the applicant’s brother as a rehabilitative tool and whether it would have an adverse impact on him emotionally and academically.” However, the Tribunal found that “he was simply fulfilling his natural role by attending the same school as his twin sister…(and) as a minor it is up to the applicant’s parents to make decisions about how medical and rehabilitation benefits are allocated.”
Despite the foregoing however, Wawanesa was ultimately not obliged to underwrite the cost of the brother’s tuition, as they were incurred prior to submission of the relevant OCF18s. G.H.M. failed to submit any relevant case law in support of her position that the Wawanesa was liable to pay for retroactive treatment plans. As The tribunal has repeatedly affirmed, “the provisions set out in 38(2) of the Schedule are mandatory and the exceptions set out in s.38(3) do not apply to the circumstances of the applicant’s case.”
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