Volume. 8 Issue. 19 – May 22, 2024
This week’s edition features a deep dive into an Applicant’s claim seeking a CAT determination in accordance with Criterion 8, in addition to ongoing post 104 IRB. The comparisons as between the parties experts reports is instructive, as is a discussion as to the utility, or lack thereof found in a total of 23 days of surveillance.
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Four Marked Impairments CAT and Post 104 IRB Confirmed
Battle of the Experts – Injured in a June 2017 accident, the Applicant Dyer sought a CAT determination, in addition to post 104 IRB from January 2022 ongoing. In 22-008237 v Economical, Dyers assessors opined that he suffers from a marked impairment in all four areas of functioning. Conversely, the assessors for Economical concluded that Dyer sustained a mild impairment in ADLs and CPP and a moderate impairment in SF and adaptation. Ultimately, the Tribunal agreed with Dyer’s assessors that he had sustained a CAT impairment and that he was entitled to post 104 IRB ongoing.
The Tribunal noted that June 2022 was the second assessment performed by Dyer’s assessors, Levitt/Patar, with the first in April 2022 having the benefit of a fulsome document review by the assessor, with consideration for the Dyer’s self-reported functionality and failed attempts to return to work, and a collateral interview. This contrasted with Economical’s expert, who met with Dyer the one time only for approximately 90 minutes, with no collateral interviews. Noting that Dyer had produced an invalid profile in the Personal Assessment Inventory, it was however confirmed that Dyer had “indicated a desire to get the test over with and a lack of attention to inputting accurate information… inability to persist through the testing rather than an attempt to skew the test results.”
Activities of Daily Living (ADL)
The Tribunal found that Dyer Applicant suffers a marked impairment with respect to activities of daily living, with his experts’ report confirming that he “is generally inactive with respect to his daily functioning as a result of his psychological disorders… rarely leaves his home and engages very little in terms of daily activity, spending much of his time alone or resting.” In addition, his participation in social and recreational activities has also diminished significantly. Periodic examples of engagement in physical activities was not inconsistent with a finding of a Marked impairment, as the underlying issue is the fact that “on the rare occasions when he does engage in physical activity, he has a detrimental impact upon him for a time thereafter that is disproportional to the energy exerted.”
The Tribunal further found that 23 days of surveillance confirmed a low level of activity. However, none of the surveillance showed the aftermath of the physical activity. The expert report for Economical was “less persuasive because it overstates the Applicant’s independence with ADLs…concluded that the Applicant suffers from a mild impairment in this sphere, but the evidence in the report and in the testimony before me fails to indicate that his impairment is compatible with most useful functioning.”
Social Functioning
In Dyer’s experts’ report, he was described as “insulative since the accident and experiences a pervasive depressive loss of interest in socializing”. Dyer’s “inability to communicate adequately was displayed during testimony. Towards the end of his multi-hour testimony, the Applicant’s use of profanities increased and his ability to filter himself appeared to decrease as well. Further, as the time went on, it appears as though the Applicant’s participation decreased and his answers in cross-examination became shorter and shorter as if he cared more about getting the process over with than answering accurately. This is consistent with Dr. Levitt’s conclusion regarding the Applicant’s participation in psychometric testing – that he became careless and focused on getting the task over with rather than being accurate.”
With respect to Economical’s expert report, it was found that it “places too much weight on the Applicant’s ability to be polite and courteous during the assessment in a controlled environment… highlighted that the Applicant’s social communication skills were appropriate within the structured setting but failed to fully consider his drastic decrease in socialization and inability to communicate outside of a structured setting”. Once again, surveillance did not upset the conclusion, as while in one instance Dyer was somewhat active for over three hours, “what is remarkable is that the surveillance continued for about an hour and a half following the event and never observed the Applicant engaging in any further activity and no surveillance was conducted later that evening or the following day to observe the aftermath of the Applicant’s participation in the event… surveillance the following day captured no physical activity, in keeping with the Applicant’s accounts that he is laid out after engaging in physical activity.”
Concentration, Persistence, and Pace
The experts for Dyer confirmed that he “is fearful of exacerbating pain and balance issues and is therefore avoidant of leaving his home and engaging in certain tasks… cognitive difficulties impact his ability to reliably attend appointments and multi-task. The report also notes that the Applicant is unable to complete tasks reliably, precluding him from meaningfully engaging in work or hobbies”. Dyer’s “discomposure/degradation during testimony is also indicative of his impairment in CPP.” His performance “demonstrated signs of fatigue and decomposition…he became more defiant and used inappropriate language more frequently as the process went on, and at one time crassly commented that he was experiencing incontinence during the process but chose not to do anything about it in order to avoid prolonging the process. I agree with the Respondent that the Applicant never asked for breaks during the process; however, I find that this behaviour is consistent with his get-it-over-with attitude. Such behaviour demonstrates that the Applicant is unable to persist in stressful situations.”
Economical’s expert also noted that Dyer’s “poor emotional regulation could result in workplace conflict, amotivation, and/or avoidance or withdrawal and that his cognitive difficulties could lead to poor decision-making, increased errors, and decreased task efficiency.” Despite this, it was opined that the impairment was merely mild, hence compatible with most useful functioning, with which the Tribunal could not agree in light of the evidence provided.
Adaption
Dyer’s experts concluded that he “could not be relied upon to engage in any consistent activity reliably and independently and attempting to do so would result in further significant deterioration from a psychological perspective… pain has become entrenched and highly distressing, contributing to avoidance behaviours resulting in significant functional impairment…his highly pain avoidant behaviour that causes him to spend days or weeks laid out and doing nothing.”
Economical relied upon a specific instance wherein Dyer “was able to respond to a random event when a neighbour appeared at his front door, bleeding profusely due to a knife attack.. the Applicant was functional enough to assess the situation and apply pressure to the wound until medical attention arrived – effectively saving the neighbour’s life.” However, the Tribunal noted that “ marked impairment results in a significant impediment of useful functioning not a total impediment of useful functioning”. Economical’s expert found a moderate impairment, given Dyer’s “calm and organized mental state and ability to follow simple instructions and maintain attention during the assessment. Yet, the Applicant’s demeanor during the structured assessment is not the sole source of information and should not be given the weight that the assessor appended to it.
With the finding of four Marked impairments, Dyer more than satisfied the criteria for CAT under Criterion 8.
Post 104 IRB
The Tribunal found that Dyer “does not have the requisite stress tolerance to engage in any employment or self-employment for which he is reasonably suited”. Even Economical’s expert “who generally downplayed the level of the Applicant’s impairments, found that the Applicant has impaired stress tolerance that seems to cause withdrawal or a worsening of symptoms.” Dyer’s expert confirmed that his “emotional dysregulation precludes him from engaging in any employment…the Applicant’s poor emotional regulation could result in workplace conflict, amotivation, or withdrawal.”
An expert for Economical “acknowledged that the Applicant was diagnosed by Dr. Parekh with a Somatic Symptom Disorder with Predominant Pain in October 2018, but never clearly addresses why such a diagnosis is not currently present in the report. I find Dr. Sethi’s failure to address whether the Applicant suffers from a pain disorder undermines the overall persuasiveness of the report.” Accordingly, Dyer was “significantly impaired from a mental and behavioural aspect and that the impairment is of such significance that he is unable to engage in employment or self-employment that he is reasonably suited”.
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