Print

 

 Volume. 8 Issue. 20 – May 29, 2024


This week the Tribunal considers whether a practicing lawyer, whose career path was significantly compromised following the accident, would satisfy the requirements for a CAT determination under Criterion 8. The Tribunal noted that it had been “devastating for the applicant not to be able to work to his pre-accident potential”.



SABS Summer Session!

Secure your seat for inHEALTH’s 2024 Summer Virtual Training session!

  • SABS Expedited: June 17th – 21st, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



Practicing Lawyer Seeks CAT Determination

Practicing Lawyer as CAT? – Injured in a June 2018 accident, the applicant (M.Z.) despite embarking upon a career as a practicing lawyer, sought a CAT determination, in 22-005726 v Security National, Of note, during the course of the hearing, the applicant sought an emergency summons, in order to call a witness that Security National had ultimately decided to no longer call. The applicant contended that they were anticipating the opportunity to cross examine the witness. The Tribunal, however, declined to approve the summons, noting in part that “if it is essential for a party to question a witness, the onus is on that party to summons the witness in a timely manner, even if that witness is on the other party’s witness list. I found that the circumstances did not justify an emergency summons”.

Post MVA Education and Career Path

The Applicant was a thirty year old law student on the date of loss, when he was struck while riding a bicycle. Prior to the MVA, he was described as a high achiever with multiple university scholarships, distinctions and awards, and two Master of Laws degrees. After some time off, the applicant, with accommodations, completed his third year of law school in 2019 and also passed the bar admissions examinations, and was licensed as a lawyer in June 2020. With few interruptions, the applicant was able to secure numerous positions within his field through to the date of the hearing.

The Tribunal did note that the “applicant’s life has changed significantly as a result of the accident. In addition to other changes, he has been unable to carry out his pre-accident career plans as a result of accident-related impairments.” However, it was “beyond the scope of a catastrophic impairment designation to provide general redress for harm suffered; rather, the purpose of such a designation is to enable access to increased levels of medical and rehabilitation benefits for accident-related needs.”

Applicant’s Experts Lacking

Addressing the requirements for satisfying Criterion 8, the Tribunal found the applicant’s expert report to be of limited assistance, as the assessor failed to describe in detail the severity of the limitations in relation to the four functional domains. The assessor “failed to show how she assessed the severity of the applicant’s limitations in relation to each of the four functional domains.” In addition, it was determined that the assessor had no notes relative to her 2021 report. The Tribunal further took issue with the applicant’s OT report, finding that the “one-time” assessment, performed wholly by way of videoconferencing did not provides a reliable foundation for determining ongoing impairment. The report also failed to reliably depict the applicant’s longer-term circumstances.

ADL

Noting that neither expert found a marked level of impairment under ADL, the Tribunal indicated that the “applicant has not directed me to evidence which warrants overriding the conclusions of the assessors with respect to this domain.”



CPP

The Tribunal took note of the fact that “With accommodations approved by the Law Society, the applicant had sufficient strengths and functionality to demonstrate that he met the examination standards to be licensed as a lawyer.” In addition, “There has been no evidence of restrictions or conditions on his license to practice law.” There was as well, “no evidence of workplace accommodations being instituted for the applicant since he became licenced as a lawyer.” While noting that it had been “devastating for the applicant not to be able to work to his pre-accident potential in his chosen career… the applicant has retained sufficient function in the domain of concentration, persistence and pace, as well as in the domain of adaptation, to be employed in some work engaging his legal background and experience.” The Tribunal confirmed that the applicant’s impairment under CPP was his most severe “despite the serious post-accident challenges the applicant has faced, his overall qualities and strengths have enabled functioning in this domain, including the ability to carry out some work in professional settings.”

Adaptation

The Tribunal was “not persuaded that the overall evidence amounts to a marked impairment in the domain of adaptation. There is substantial evidence of the applicant’s ability to interact reasonably with others, continue in difficult situations, and be able to present without overt signs of stress and anxiety. I find on balance that the overall evidence of the applicant’s functioning shows that he has maintained ability to persist through stressful circumstances.”

Social Functioning

The Tribunal referenced the evidence confirming that “the applicant’s social functioning skills are at a level where colleagues have provided references and facilitated employment in environments requiring the ability to interact well with others. He has successfully interviewed for work positions and maintained such positions.

Conclusion

The Tribunal confirmed having “considered the high levels of the applicant’s pre-accident achievements and abilities.” However, even were CPP to be adjudged to be marked, “the applicant has no more than a moderate level of impairment in the domains of activities of daily living, adaptation and social functioning.”



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG

October 30, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT, Divisional Court

October 28, 2024: IE Fails to Explain Lack of Diagnosis

MIG

October 23, 2024: Loose Lid Unexpected "Accident"

Definition Accident

October 21, 2024: Dental Work Required Not Caused by MVA

MIG

October 7, 2024: Continuity of Complaints Confirm Chronic Pain

MIG

October 2, 2024: All Items in Dispute Deemed Incurred

Treatment Plans

September 30, 2024: Ignoring Medical Evidence Proves Award Worthy

MIG

September 25, 2024: Credibility Issues Abound with IE Assessor

IE

September 23, 2024: Reliance on Symptom Magnification Test Proves Fatal

MIG

September 16, 2024: Self Reporting Accepted for Psych MIG Escape

MIG

September 9, 2024: Diagnosis Alone Falls Short in Chronic Pain Case

MIG

September 4, 2024: CAT Finding Upheld on Reconsideration

CAT, Reconsiderations

August 28, 2024: Staged MVA Results in $93K Repayment Order

Definition Accident, Evidence

August 26, 2024: What Exactly Constitutes “Compelling” Evidence?

MIG

August 21, 2024: Extreme Impairment Confirmed in CAT Decision

CAT

August 19, 2024: Post Concussive Syndrome Diagnosed in Telephone Interview

MIG

August 14, 2024: Reconsideration Varies Decision Regarding “Accident”

Definition Accident, Divisional Court

August 12, 2024: Adverse Inference Considered in MIG Determination

MIG

August 7, 2024: Re-Training Not A Viable Option - Post 104 IRB Confirmed

IRB

July 31, 2024: Applicants Allowed to Proceed to Hearing Despite Alleged Non – Compliance

Insurer’s Examinations, Procedure

July 29, 2024: No Specific Reference to Evidence Precludes MIG Escape

MIG

July 24, 2024: When is a Spouse Not a “Spouse”?

Death Benefit

July 22, 2024: No Evidence Tendered to Rebut Concussion Diagnosis

MIG

July 17, 2024: 196K Grievance Award Factored into IRB Calculation

IRB

July 15, 2024: Chronic Pain Diagnosis Does Not Warrant MIG Escape

MIG

July 10, 2024: Court Allows Applicant to Submit Judicial Review After the Fact

Divisional Court

July 8, 2024: MIG Escape Despite Unrelated Psych Issues

MIG

July 3, 2024:Application Premature On Benefits Claimed in Excess of Limits

Award, CAT, Jurisdiction

June 26, 2024: Multiple Wilful Misrepresentations Claimed but Only One Established

IRB

June 24, 2024: Chronic Pain Diagnosis 4 Years Later Uncontroverted

MIG

June 19, 2024: Court Sets Aside Tribunal Decision and Makes Decision that Ought to Have Been Made

Definition Accident, Divisional Court

June 17, 2024: Cause of ‘Remote’ Finger Fracture Questioned

MIG

June 10, 2024: Reliability on IE Opinions Challenged

MIG

June 5, 2024: IE 'Highly Intrusive' - Not Acceptable Reason For Failure To Attend

Insurer's Examinations

June 3, 2024: MVA Necessary Cause of Subluxation of Shoulder Joint

MIG

May 29, 2024: Practicing Lawyer Seeks CAT Determination

CAT

May 27, 2024: Differing Opinions on Right Knee Injury Causation

MIG

May 22, 2024: Four Marked Impairments CAT and Post 104 IRB Confirmed

CAT, IRB

May 15, 2024: Court Confirms Three Breaches of Procedural Fairness by Tribunal

Div Court

May 13, 2024: Little Weight Given to Illegible Doctor's Notes

MIG

May 8, 2024: Reasonable Perception of Bias Involving Former Adjudicator Requires Rehearing

Reconsideration

May 6, 2024: Potential Causation Does Not Support MIG Escape

MIG

May 1, 2024: Tribunal Varies Three Decisions on Reconsideration

Reconsideration, Treatment Plans

April 29, 2024: Credibility of Assessment Favored Over Psych Validity Testing

MIG

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG