Volume. 8 Issue. 6 – February 14, 2024
This week, a relative “deep dive” into a Criterion 7 CAT determination, with the Tribunal ultimately making their own finding, lower than the reports of either party.
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Tribunal Does Not Accept the CAT Findings of Either Party
Tribunal CAT WPI % Lower Than Either Expert Report – Injured in a September 2018 MVA, the Applicant Bishara, in 22-012840 v Sonnet Insurance, sought a CAT designation based upon a finding of a whole person impairment (“WPI”) of 55%, satisfying the Criterion 7 requirements.
Interestingly, while Sonnet contended that Bishara “mischaracterized her true mental and physical state to the medical assessors and, therefore, she is not CAT”, their assessment resulted in a finding of a 50% WPI, just shy of the required threshold. However, the Tribunal, following review of the competing reports, made their own independent assessment, ultimately agreeing with neither of the competing CAT reports. The Tribunal framed their reasoning within the context of the MVA having “had a profound effect on the applicant’s life”.
There were no findings with respect to right eye vision loss and eye prosthesis, and cervical spine, with the Tribunal agreeing with both parties that the appropriate ratings were 24%,10% and 5% respectively. The first divergence being the lumbar spine, with the Tribunal agreeing with Sonnet’s 5% rating, rather that Bishara’s 10%. The Tribunal found that the Guides described a minor impairment as one with “clinical signs of lumbar injury are present without radiculopathy or loss of motion segment integrity equating to a 5% WPI” and this aptly describes the applicant’s lumbar condition.”
With respect to findings regarding headaches, Bishara’s expert indicated an 8% WPI, Sonnet with 5%, however the Tribunal found neither to be accurate depictions. It was found that evidence as to headaches were sparsely represented in the medical records. One key point of many being that “since the eye surgery where she got her new eye prosthesis, the headaches are not as bad as before the surgery.” Accordingly, “given the medical evidence I find that assigning a WPI rating for headache is not warranted and to do so would be double dipping since WPI ratings have already been assigned for the applicant’s vision loss and eye prosthesis. As such, I find that 0% WPI for headaches is appropriate.”
Bishari and Sonnet respectively assigned ratings of 8% and 7% with respect to mental status. However, the Tribunal references the clear fact that Bishari had not demonstrated any objective major difficulties with cognition. As examples, “she successfully completed a post-secondary program in health science; passed all her Registered Practical Nursing (“RPN”) program at Algonquin College; passed the national RPN licensing exam and her performance on the Montreal Cognitive Assessment cognitive tests administered by both Dr. Joseph and Mr. Dan Gauthier, s. 44 assessors, was near perfect”. Therefore, the Tribunal found that “based on the totality of the medical and documentary evidence a mental status 0% WPI rating is appropriate.”
The Tribunal agreed with Sonnet that a 0% WPI rating was appropriate for medication use. Bishari’s expert opinion of a 3% WPI was found “not consistent with the medical and documentary record.” It was not “appropriate to add an additional rating for medication because the applicant’s impairments and the effect of medications on those impairments have been adequately captured under other impairment categories inclusive of mental and behavioral… the Guides is clear that substance abuse problems are not to be rated because they are not generally considered to be permanent impairments. As such, I find that 0% WPI for effects of medication is appropriate.”
The Tribunal accepted the mental behavioural WPI rating of 10% as determined by Bishari’s expert, as opposed to the higher rating of 15% determined by Sonnet’s expert. It was noted that in the report from Sonnet’s expert, there was significant difference in the applicant’s self-reporting to and her self-assessment scores used. As a result, the ratings “were inflated and not consistent with the totality of medical and documentary record.” Examples being the fact that Bishari “provided very limited information about her pre-accident psychological and relationship traumas and contrary to what was reported to Dr. Ross; she reported developing an eating disorder since the accident when the records reveal that her eating disorder predates the accident; and she inflated many of her post accident psychological symptoms.”
As noted earlier, the competing WPI% scores from Bishari and Sonnet respectively were 55% and 50%. The Tribunal, however, concluded that Bishari was not as close to a CAT designation as either report opined. The ultimate finding being that “the Tribunal’s physical ratings for vision loss 24%; eye prosthesis 10%; lumbar spine 5%; cervical spine 5%; headache 0%; mental status 0%; and medication 0% are combined using the combining charts on page 322 of the Guides, this gives a total physical rating of 38% WPI. When the total physical rating 38% WPI is combined with the mental and behavioural rating of 10% WPI using the combined values chart it results in 44% WPI and rounded up or down to the nearest 0 or 5 it becomes 45% WPI. This value of 45% WPI does not meet the 55% WPI threshold for CAT under criterion 7.”
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