Volume. 8 Issue. 44 – December 18, 2024
This week the Tribunal considers a CAT determination case under Criterion 8, where the Respondent’s key witness either would not, or could not, make himself available to testify. Ultimately, this proved to be a determining factor in the Tribunal’s decision with respect to CAT.
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Applicant Successful in CAT Case Where Respondent’s Expert Unavailable
“No Show” Expert – Injured in a March 2020 MVA, the Applicant Ouderkirk, in 23-006079 v Belairdirect, sought a CAT determination as well as entitlement to numerous treatment plans (medical benefits and OT services). The Tribunal ultimately found that Ouderkirk had sustained a CAT impairment in accordance with Criterion 8 and was as well entitled to all but two medical submissions, being four OCF18s for medical benefits, six for OT services. At the outset of the hearing, Belairdirect had submitted that their psychiatric assessor, Dr. Jwely, was not available to testify as he was out of the country. It was their contention that the Tribunal ought either to extend the hearing past its assigned date and allow Dr. Jwely to testify once he returns from Libya sometime in early September or that the Tribunal should assign full weight to Dr. Jwely’s report if there is no extension granted.
Ouderkirk in contrast submitted the Tribunal should allow little to no weight to Dr. Jwely’s report as Belairdirect ought to have known that their witness would be out of the country during the scheduled hearing. The Tribunal agreed with Ouderkirk and denied Belairdirect’s request to extend the hearing past its originally scheduled time limit. Belairdirect had not satisfied the Tribunal that Dr. Jwely could not at the minimum been available by phone, and the Tribunal took further note that they could not confirm a date wherein the assessor would be available upon his return to the country. The Tribunal indicated that it would give reasons for the weight assigned to Dr. Jwely’s report during the course of rendering its decision.
CAT – Three Marked Impairments vs. No Marked Impairments
Ouderkirk submitted that he has a marked impairment in the domains of social function, concentration, persistence, pace, and adaptation, caused by mental disorders that he sustained in the motor vehicle accident. Belairdirect however submitted that he does not have a marked impairment in any of the four areas of function directly attributed to the accident and therefore does not meet the test under Criterion 8. Ultimately, the Tribunal agreed with Ouderkirk that he had indeed sustained marked impairments in the domains of social function, concentration, persistence, pace, and adaptation.
Social Functioning
The Tribunal agreed with Ouderkirk that he had sustained a class 4 marked impairment in the domain of social function, as opposed to Belairdirect’s of a class 2 mild impairment. Ouderkirk testified that his social life has deteriorated since the accident and that he avoids family and friends and new relationships because he now has nothing to offer. Dr. Yaroshevsky opined that “from a psychiatric perspective, the applicant’s coping mechanisms are quite impaired. He opines that the applicant has been continuously impaired in all areas of his emotional, cognitive, and social functioning since the accident… the applicant remains severely symptomatic and disturbed. He opines that with chronic illness, unfortunately the regression often becomes permanent.”
Dr. Jwely on the other hand, primarily relied upon the occupational therapy report dated October 18, 2023, by Ali Habash, occupational therapist, and a test Dr. Jwely administered called the World Health Disability Assessment Schedule, Version 2.0. The Tribunal noted that while the test does focus on the considerations for the SF domain, it also appears to be a combination of the activities of daily living domain and the social function domain. The Tribunal found that with respect to the test score ranking for each of the six parameters addressed, Dr, Jwely “does not have an explanation on the weight given to each section and there is no explanation of the questions administered or how he has considered each test to produce an impairment rating for the domain of social function. Dr. Jwely was not available to be cross-examined on how he reached the conclusions in his report. I therefore placed little weight to the report of Dr. Jwely”.
The Tribunal “assigned more weight to the testimony and report of Dr. Yaroshevsky as the respondent had the opportunity for cross-examination and because I considered the applicants inability to cross examine Dr. Jwely.” Accordingly, the Tribunal decided to “accept Dr. Yaroshevsky’s conclusion that the applicant’s functional impairments in affect regulation and loss of motivation significantly restrict his relationships with family, friends, and community members. He has become reclusive, isolative, and avoidant of social and familial interactions.”
Concentration, Persistence and Pace
Ouderkirk testified that he has difficulty with memory loss, he is distracted, preoccupied, upset, has difficulty sleeping, and has chronic somatic pain because of the accident. Belairdirect “argued that the applicant has no impairment in the domain of concentration, persistence and pace. They argue that the applicant participated in conversation, followed instructions, and provided relevant and coherent details in his testimony and at the time of Dr. Jwely’s assessment… Dr. Jwely in his report opted that the applicant was able to attend to the assessment process without noted difficulty. He effectively participated in conversation, followed instructions, and provided relevant and coherent details.”
The Tribunal disagreed “with Dr. Jwely’s finding of no impairment in this domain because no disturbances were found in the applicant’s concentration or memory, and it was noted in his report that the applicant had a good understanding and sophisticated knowledge of his medical condition and political issues… It appears that Dr. Jwely did not give much credence to the occupational therapists notes from Ali Habash that appear in Dr. Jwely’s own report and state that the applicant is only able to pace and persist up until the point where his symptoms and impairments prevent him from further engaging in whatever he is doing. At that point, the applicant’s typical response is to elicit help from others, take breaks, or avoid a given task altogether.”
Further, “Dr. Yarchevsky’s clinical impressions and diagnosis are more aligned with the applicant’s testimony and from the testimony of the applicant’s long term family doctor, Dr. Khansky, that post accident the applicant is stressed to be around people, his attention has broken down, he has difficulty in basic paperwork, completing tasks, his memory concentration and attention have all broken down. I find that Dr. Yarchevsky’s conclusion in both his report and testimony that the applicant experiences significant difficulty in concentration and attention due to his prominent anxiety and severe depression are consistent with a class 4 impairment in the domain of concentration, persistence, and pace.”
Adaptation
It was the position of Belairdirect that Ouderkirk has a class 1 or no impairment in the domain of adaptation, contending that he has adapted to his functional impairments and would be able to maintain a sedentary job. The Tribunal noted that in this domain, “Dr. Jwely’s report of the applicant is clearly in contrast to the report of Dr. Yaroshevsky. I placed little weight to Dr. Jwely’s report as my own observations through the hearing are more in line with the findings in Dr. Yaroshevsky’s report and testimony and are further consistent with the testimony of the applicant’s long time family doctor, Dr. Kahansky. Furthermore, Dr. Jwely did not even mention the applicant’s referral and assessment to the Canadian Mental Health Society in his document review as part of the formation of his catastrophic impairment report. As Dr. Jwely was not present to testify to any of the apparent deficiencies in his report, I am unable to place much weight on his conclusions.”
Further, “in his rebuttal report Dr. Yaroshevsky outlines the score of 41-50 on a Global Assessment of Functioning test (GAF) administered by Dr. Jwely, which according to Dr. Yaroshevsky means, any serious impairment in social, occupational, or school functioning. Dr. Jwely’s rating in this regard are conflicting with his rating of no impairment in three of the four domains under Criterion 8. For this reason, even if I set aside my concerns with Dr. Jwely’s failure to attend the hearing and undergo cross-examination, I find that the internal inconsistency between his test results and his ratings makes his report less reliable than other expert evidence before me. The applicant has continually followed his doctors’ recommendations, seeks answers to his physical and psychological impairments, has tried to return to work, tried coding, and tried to finish his real estate courses. However, as Dr. Kahansky and Dr. Yaroshevsky testified, trying, and completing are two different things. I accept Dr. Yaroshevsky’s analysis of the applicant that he will decompensate or have difficulty maintaining activities of daily living, continuing in person social relationships, and completing tasks.”
Occupation Therapy Treatment Plans
Belairdirect asserted that the treatment plans are not reasonable or necessary and took exception with the fact that a medical professional was not the person that recommended the treatment plans. The Tribunal however agreed with the applicant and Dr. Khansky that they were reasonable and necessary. Noting that Belairdirect’s occupation therapist opined that Ouderkirk would benefit from ongoing physiotherapy, message therapy, and occupational therapy.
Chiropractic and Physiotherapy Treatment Plans
Belairdirect submitted that the treatment plans are not reasonable and necessary as Ouderkirk has not improved from receiving these treatments in the past. The Tribunal however agreed with Ouderkirk that they are in fact reasonable and necessary as part of a multi-disciplinary approach as outlined in Dr. Razvi’s chronic pain report and from the testimony of Dr. Khansky.
Balance of CAT Assessment
Ouderkirk submitted that $9,040.00 has been paid by the insurer, however there is a shortfall of $12,430.00. Belairdirect was of the opinion that Ouderkirk is not catastrophically impaired and as such the assessments are not reasonable or necessary. The Tribunal found that Ouderkirk was entitled to the outstanding balance, noting that Belairdirect had not provided any evidence regarding the catastrophic impairment invoices, nor was the Tribunal pointed to a denial letter by Belairdirect in this regard.
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