Volume. 6 Issue. 21 – June 1, 2022
In this all ‘CAT’ edition two cases, the first consisting of a “deep dive” in ‘A “Quick and Dirty” CAT Assessment’, of an Applicant’s seeking a CAT designation as a result of a Traumatic Brain Injury (TBI). The Tribunal goes into detail concerning the nature and purpose of an Extended Glasgow Coma Scale (GOSE) questionnaire.
We then briefly consider a Whole Person Impairment (WPI) rating in ‘Tribunal Picks a Point in the Middle’, wherein the Tribunal used aspects of both parties’ assessments to arrive at a WPI essentially at the mid point between the two assessments.
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GOSE Questionnaire Not Intended to Go Into Great Detail
A “Quick and Dirty” CAT Assessment – The Applicant Adams, seriously injured in a September 2016 accident, sought entitlement to CAT level benefits, having quickly exhausted the non-CAT benefits. In 20-009293 v Federated Insurance, Adams sought a CAT designation based upon having suffered a traumatic brain injury in accordance with s.3.1(1) 4 of the Schedule.
While it was agreed that she met the first criterion, with “medically recognized brain diagnostic technology indicating intracranial pathology”, the parties disagreed on whether she met the 2nd prong. This involved, for the purposes of this application, whether in accordance with the Extended Glasgow Outcome Scale (GOSE), Adams suffered either an Upper Severe Disability or Lower Severe Disability six months or more after the accident, or a Lower Moderate Disability one year or more after the accident.
The Tribunal noted that the GOSE Guidelines confirmed that the scale was “not intended to provide detailed information about specific difficulties faced by individual patients, but to give a general index of overall outcome”. Adams contended that “the GOSE questionnaire needs to take into account the individual circumstances of the person whereas Federated argues that the GOSE questionnaire needs to be assessed as a high-level overview, a “quick and dirty assessment”.
The Tribunal confirmed that “the GOSE questionnaire was not intended to go into great detail. The purpose of the scale is clear: “it is not intended to provide detailed information about the specific difficulties faced by individual patients, but to give a general index of overall outcome. This means assessors must contemplate the responses as a general index of overall capabilities and not in consideration of the specific details of the person’s individual circumstances.”
Addressing question 2(a) “Is the assistance of another person at home essential every day for some activities of daily living?”, the Tribunal noted that at its core, the question was “In general, can they survive 24 hours without assistance.” Ultimately, while there was no doubt that Adams “benefits from assistance, prompts, reminders, and regular text messages, but the appendix cautions to differentiate between the care and protection given by others and dependency. It also acknowledges that individuals may have a real need for assistance, but it does not mean they are dependent for the purpose of the GOSE.”
Question 2(b) asks whether “they need frequent help or someone to be around the home most of the time?” The Tribunal agreed with Federated that Adams was “capable of being left alone for up to 8 hours during the day if necessary.” While there was no doubt that the effects of the TBI have been difficult to manage, the “high bar of dependency in this question requires a constant requirement for a caregiver to be in the individual’s home for multiple activities of daily living.” The Guidelines confirm there to be a “very narrow view of what should be considered “current status”, to wit, problems and capabilities evident over the past week or so. The GOSE questionnaire “only considers the very basic of tasks, can she prepare a simple meal, can she eat it, can she look after herself unsupervised for a period of up to 8 hours”.
Questions 3(a) (Are they able to shop without assistance?) and 4(a) (Are they able to travel locally without assistance?) were both answered in the affirmative. The shopping question was a “high- level overview of capacity” and Adams, as per the evidence “appears that more often than not she is still somewhat successful”. In terms of travel, it was found that “overall, more often than not, Ms. Adams is capable of traveling locally without assistance.”
Turning to question 6(b) “the extent of the restriction on their social and leisure activities”, Adams would need to establish she was “Unable to participate: rarely, if, ever, take part”. Noting that the GOSE does not quantify “rarely”, Adams’ expert suggested a 25% threshold, whereas the expert for Federated opined 5%. The Tribunal, noting a plain reading of the word means “not often or seldom”, agreed that the threshold ought to be less than 5%, as 25% was simply too high. Further, the Tribunal was able to assess the evidence to calculate an actual participation rate of 29%, far above the CAT level requirement.
In summary, the Tribunal found that “Adams’ assessors took an overly specific view of the GOSE questionnaire and answered each question contemplating every intricate detail concerning her. In contrast, Federated took a more “generalized” approach, with their answers to the questionnaire “more in line with the purpose and scope of the GOSE questionnaire and the appendices.” Therefore, Adams’ TBI did not meet the required level of disability/handicap required for the TBI to be considered as CAT.
Tribunal Opts for Midpoint Between Two Competing WPI Scores
Tribunal Picks a Point in the Middle – In 19-014493 v Wawanesa, the Tribunal considered whether the Applicant, Ifraimov, sustained a Whole Person Impairment (WPI) of 55%. The expert for Ifraimov found there to be a 60% WPI, whilst Wawanesa’s expert opined there to be a 34% WPI. Going through the list of impairments, the Tribunal variably used the individual ratings from each party across the seven areas assessed. Ultimately, the Tribunal, after considering the evidence from both parties, determined that the true WPI was 46%, therefore not meeting the requirement for CAT.
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