Volume. 8 Issue. 40 – November 20, 2024
This week a “deep dive” into a case replete with procedural issues, all found in the Applicant’s favour. However, the Applicant does not fare well from a substantive perspective for either CAT or pre/post 104 IRB, with causation a central issue.
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IE Not Reasonable or Necessary – No to CAT & IRB
Procedural Successes Do Not Engender Substantive Success – In 23-007052 v Dominion, the Applicant Yeung sought a CAT determination, in addition to both pre and post 104 IRB. Prior to the hearing, Dominion submitted a motion to add a preliminary issue to the issues in dispute, to wit that Yeung was barred from proceeding to a hearing pursuant to s. 55(1)2, having failed to agree to attend an insurer’s examination (IE) under s.44 scheduled for February 8, 2024. The Tribunal dismissed the motion, largely due to the fact that it had been filed prior to Yeung’s purported non-attendance. At the commencement of the hearing, Dominion again requested to add the preliminary issue to the issues in dispute as Yeung had now not attended the scheduled insurer’s examination.
Specifically at issue was a psychiatrist IE from an assessor who had seen Yeung in February 2023 and authored a report regarding CAT. Dominion had initially sought a paper review, however the assessor indicated that a paper review was not possible without updating the in-person assessment of the applicant. Yeung however contended that there was no evidence that a paper review could not have been conducted, and that Dominion had already determined their position with regard to the application for catastrophic impairment determination. Further, that the “requested exam is intrusive and not reasonable and necessary. Finally, the applicant submits that the timing of the request is suspect, coming 8 days following the case conference held January 30, 2024, and suggested that this request was for litigation purposes.”
Factors in Addressing Whether IE is reasonable and Necessary
The Tribunal agreed with Yeung that Applicant v. Travelers (17-005291) should guide the analysis of determining the reasonableness and necessity of the IE in question. Dealing first with the timing of the request, the Tribunal agreed with Yeung that Dominion “has had opinions and reports for more than a year and that on a balance of probabilities the requested examination is in relation to the ongoing litigation.” With respect to the possibility of prejudice, whereas the prejudice to Yeung would be absolute and final as she would not be able to proceed with the claim, Dominion, having already conducted an in-person psychiatric focused catastrophic would not be materially prejudiced by the inability to conduct follow-up examinations at this late juncture in the dispute.
Considering the number and nature of the previous examinations, there was no evidence that the examination is required in relation to new issues that may have arisen, and which require evaluation. In addition, Yeung had “attended more than 8 examinations, three of which occurred in 2020, with the majority being completed in 2023 and focused on CAT determination. I find this to be a reasonable number of intrusive examinations to determine the applicant’s level of function.” Dominion had also failed to demonstrate that there are new issues to be evaluated given when the issue of CAT arose and how long the respondent has been aware of this issue in dispute. Given the foregoing, the request for a follow-up examination was not reasonable and necessary, and as a result, Yeung is not barred from proceeding with her application for failing to attend same.
Particulars of Award Not Provided
Dominion noted that Yeung had not provided particulars of the award claim to them within 30 days of the receipt of the adjusters’ log notes as required. In fact, they have not yet been received, and given same, they were unable to properly appreciate the claim and prepare to defend itself, lacking knowledge of the applicant’s claim. Dominion accordingly contended that the claim for an award under Reg. 664 ought to be dismissed. The Tribunal however ordered that Yeung’s claim for an award remain as an issue in dispute at this hearing, and extended the deadline by which the particulars must be delivered to Dominion by end of day July 15, 2024, being the first day of the hearing. The Tribunal found that Dominion “had more than 70 days to inquire as to the status of the award claim and did not. Instead, the respondent waited until the start of the hearing to raise this issue, which is untimely. It is also well settled that the issue of an award can be added at any time.”
Hearing Proceeded in the Absence of the Applicant
At the beginning of the hearing, Yeung was not present, and as a result Dominion submitted that her attendance is required and without the applicant the appeal should be dismissed. Counsel for Yeung advised that she had just been discharged from a mental health inpatient ward at a hospital where she had been admitted on the previous Friday. Counsel submitted that Yeung was not capable of being present and that counsel feared for the mental health and ultimately the life of her client should she be forced to attend. Dominion submitted that credibility and causation were key components of this dispute, and that they required the ability to cross examine the applicant to properly defend themselves.
Counsel for Yeung cited Rule 3.7., wherein the hearing may continue in the absence of the party because Dominion had examined Yeung under oath previously and further that as an officer of the court counsel was attesting to the inability of her client to attend in her current mental health state and asked that the hearing continue. The Tribunal found that Yeung “has a representative present and that the representative had instructions from the previous Friday and that the applicant’s non-attendance is for mental health reasons, the heart of the dispute before the Tribunal, and therefore has not abandoned the proceeding. The respondent’s motion is denied, and the hearing will proceed.”
CAT – Tribunal Finds Moderate Impairments Across all Four Domains
ADL
Yeung’s assessor, Dr. Gerber, was found to have relied heavily on pre/post-accident reports from Yeung’’s family members that outlines dramatic changes in ADL’s, particularly in the hygiene area, concluding there to be a class 4 or marked impairment. The companion OT, Mr. Amchislavsky, was found to be similarly reliant on self-reports by family members, identifying several physical limitations Yeung had with the hygiene component of ADLs. Yeung’s mother testified, however her testimony was afforded a diminished weight because it provided very little in the way of clear pre- and post-accident function contrast, and further that certain evidence was undermined in some instances by other submitted evidence.
While Yeung had identified severe limitations to various assessors, “it is noted by virtually all that she is in-charge of her own banking, medication, and most driving. She has presented to all assessors in proper attire and having been properly groomed. The applicant has travelled internationally (a July 2019 trip to Hong Kong) and domestically, drives locally and on highways and schedules her own appointments and attends, for the most part, on her own.” Accordingly, the Tribunal found there to be a moderate class 3 impairment regarding ADL.
Social Functioning
Here Yeung’s assessor Dr. Gerber opined that she had become socially isolated post-accident, demonstrating a class 4 marked impairment. Dominion’s assessor was “suspicious of an underlying personality disturbance as a contributing factor to any impairment of social function.” With respect to alleged changes in familial interaction, the Tribunal found that confirmed reports of the elimination of relationships prior to the subject accident “cause me to lean toward the respondent’s assessors’ view that the applicant’s presentation with regard to social function is not related to the subject accident.” Further, a 2012 report from CAMH confirmed that at that time, Yeung was socially avoidant with the doctor believing there are likely personality issues that have contributed to her difficulties in coping. The long-standing pre-existing nature of Yeung’s presentation in this domain led the Tribunal to agree with Dominion that there was a class 3 moderate impairment accordingly.
Concentration, Persistence and Pace – CPP
It was noted in a February 2019 report that Yeung “had discontinued working over the previous month due to depressive symptoms. The stressors that triggered the current symptoms identified were housing, work, and family situations. These self-reports prior to the accident are, for me, self-observation in work like settings and suggest the current presentation within this domain is not as a result of the accident.”
Adaptation
The Tribunal found the assessment by Yeung’s expert of an extreme impairment in this domain to strain credulity. He “highlights a list of work setting like tasks, stating that the applicant would not be able to undertake performing activity within a schedule, maintain regular attendance or be punctual because she would not be able to override her lack of motivation. The categorical denial of an ability to undertake these tasks without even cursory examples is problematic in terms of the veracity of the assessment.” The Tribunal found that the evidence shows self-reports by Yeung that highlight she was not happy with her work life prior to the accident, and that “the current presentation is a continuation of long-standing issues and is not as a result of the subject accident.”
IRB
Given the absence of direct evidence or submissions regarding the inability to perform the essential tasks of their employment, the Tribunal was left to “assume they rely upon the report of Dr. Gerber who found the applicant was extremely impaired in the domain of adaptation, in work like settings.” The Tribunal found that it was “not entirely clear to me what employment the applicant was performing prior to the accident. To multiple assessors, throughout her dispute, the applicant has outlined her work endeavors as book-keeping, social media work and body work. There is no clear evidence before me that outlines the essential tasks for any of the types of work the applicant reported she was engaged in, nor which tasks she is unable to perform.”
Finding it “possible that the applicant’s situation has worsened…the exacerbation of her pre-existing depressive state had been compounded. However, I have no direct submission or evidence of this and therefore having found that the applicant has not met their burden with regard to the substantial inability test, it is redundant to now explore whether she suffers a complete inability to perform the essential tasks of her employment.”
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