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”.
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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.”
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