Volume. 8 Issue. 38 – November 6, 2024
This week the Tribunal considers an application for a CAT determination under Criteria 7 and 8. While the insurer posited causation as a central issue, the Tribunal ultimately found on the evidence that the Applicant had not established that she satisfied the requirements for a finding of CAT under either criterion, irrespective of causation.
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Lack of Analysis Fatal in CAT Case
Lack of Analysis Determinative – Injured in an August 2018 MVA, the Applicant Ahmadi, in 23-006134 v Intact, sought a CAT designation under Criteria 7 and 8. Ahmadi submitted that she met the requirements under Criterion 7, as she had sustained a 74% Whole Person Impairment (WPI). For their part, Intact submitted that the injuries sustained were soft tissue in nature, and that the report from Ahmadi’s expert considered functioning that was not MVA related. They also questioned the expert’s findings regarding medication use, grip strength and chronic pain.
The Tribunal found that Ahmadi’s had not demonstrated that her expert’s analysis of her functioning was reliable with respect to the WPI ratings calculated. Accepting his assessments regarding the neck and lower back, the Tribunal however did not accept the other ratings proffered by her expert. It was found that the analysis of other alleged impairments was unsubstantiated, with there being no weight afforded same for several reasons. Firstly, Ahmadi had not pointed to an analysis as to how the ratings were arrived at, which significantly hindered her case. Secondly, the medical records did not align with the expert’s ratings in numerous instances. Specifically, regarding headaches, the expert’s suggestions as to the mechanism of injury were not found in the medical records, ultimately leading to the Tribunal placing little weight on the ratings for head injury and headaches.
As for the psychological WPI rating of 40%, again Ahmadi failed to direct the Tribunal to evidence as to how the psychological expert had arrived at the rating suggested. There was reference made to the medical records, however the records did not speak to psychological symptomology that may contribute to WPI. Accordingly, given the lack of evidence, the Tribunal found that the psychological WPI was more likely closer to the 0 percent assessed by Intact’s expert. Taken together, the Tribunal could account for only a 15% physical WPI, and less than 40% psychological WPI, therefore the overall rating would not meet the 55% WPI required for a finding of CAT.
Turning next to Criterion 8, the Tribunal found that Ahmadi did not demonstrate marked impairments related to the MVA across the requisite three areas of function. Ahmadi’s expert opined there to be marked impairments in the domains of ADL, social functioning, and CPP. However, again, the submissions on behalf of Ahmadi did not speak to her expert’s determination of adaptation or point to evidence on that area of function. Intact’s expert also confirmed marked impairments in the three referenced domains, however indicated that Ahmadi “was likely markedly impaired prior to the accident owing to her intellectual disability, which he characterized as autism.”
It was the contention however of Ahmadi that while acknowledging an intellectual disability from an early age she was nevertheless not prevented from helping with household activities and doing learned activities pertaining to her self-care. Following the MVA, her psychological condition deteriorated. Intact argued that Ahmadi’s history was significant in terms of her need to be supervised and assisted with her daily activities. Further, the Tribunal in an earlier decision had determined that Ahmadi was not entitled to NEB, and accordingly she would not now meet the more stringent test of a CAT designation, given that the injuries and diagnosis remains unchanged.
The Tribunal found that Ahmadi failed to demonstrate that she met the test for a Criterion 8 CAT designation. Ahmadi had not presented evidence as to her symptomology and resulting impairment contemporaneous to the accident and up to her assessment. She relied exclusively upon her expert’s report to demonstrate that her behaviour changed post MVA. However, the report relied upon was completed in March 2023, whereas the MVA occurred in August 2018. Given the lapse of time, Ahmadi “would need, in my view, to produce corroborating medical evidence of impairment owing to her diagnosed disorder during this nearly three-year period to persuasively argue that she meets the test for catastrophic impairment.” There was no indication that Ahmadi’s expert had relied upon the available medical records to inform his position. In fact, the Tribunal agreed with Intact that there was little evidence to establish that the expert relied on any information other than what he obtained from the applicant’s mother.
Given the lack of contemporaneous medical evidence from the date of the MVA thorough to the CAT assessment, and the absence of analysis in support of the impairment alleged, the Tribunal found that Ahmadi failed to establish a marked impairments in three areas of function. As Ahmadi failed to meet her onus, the Tribunal found it unnecessary to address Intact’s arguments regarding causation.
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