Volume. 9 Issue. 8 – March 5, 2025
No Criterion 8 CAT as Physical Pain the Limiting Factor
This week the Tribunal wrestles with determining whether the Applicant has sustained Marked impairments that satisfy the Criterion 8 CAT requirements. Specifically at issue being whether the limitations alleged were based upon physical v. mental behavioural issues.
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Physical Pain Precludes CAT Finding – Injured in a July 2020 MVA, the Applicant Begum, in 23-010283 v Intact, sought a CAT designation in accordance with Criterion 8. Her assessor in fact opined that Begum had sustained Class 4 Marked impairments in all four of the applicable domains. She further sought entitlement to Attendant Care Benefits (ACB), contending that her husband had incurred an economic loss in order to provide ACB assistance. There was no disagreement as to whether Begum required ACB assistance. The ultimate finding of the Tribunal was that Begum had not sustained Class 4 Marked impairments in at least three of the four domains, nor was there evidence as to an economic loss that would render service allegedly provided by her husband payable.
ADL – A “Lake” of Pain
It was the opinion of Begum’s psychiatric expert Dr. Gavett-Liu, that Begum had a Somatic Symptom Disorder and a Major Depressive Disorder. She attributed these accident related psychological injuries to causing a decrease in the applicant’s ability to complete her ADL, to the extent of having sustained a Class 4 Marked impairment. Intact countered that no weight should be afforded to her opinion as there had been no explanation provided as to whether these limitations were caused by physical or mental and behavioural impairments. It was noted that in testimony, Dr. Gavett-Liu agreed with the opinion of an orthopaedic surgeon, that Begum has genuine physical injuries that produced genuine pain. She also testified that Begum’s “pain symptoms cannot be viewed as being in two separate buckets of physical and somatic pain. Instead, she views the applicant’s pain symptoms as being “in a lake” that contains both types of pain.”
No Somatic Symptom Disorder
Dr. Chandrasena, on behalf of Intact, diagnosed Begum with Post-traumatic Stress Disorder (PTSD), and a Major Depressive Disorder. Dr. Chandrasena “testified that somatic pain occurs when the pain experienced from an injury is in excess of what is to be expected. According to him, the applicant has genuine physical injuries and her pain experience is consistent with those injuries. For this reason, he does not attribute her avoidance or inability to complete certain ADL as being somatic or psychological in nature. He rated the applicant as having a Class 3, Moderate impairment in the ADL.” Begum submitted that there was no orthopedic diagnosis to explain the high level of pain experienced by her, however the Tribunal disagreed.
Physical Pain is Genuine
The opinion of Dr. Kliman in April 2023 gave “no indication that the applicant’s pain experience is in excess of what would normally be expected in these circumstances. He also diagnoses her with having sustained severe arthritic changes as a result of accident and that she is a candidate for left knee replacement.” Dr. Auguste, orthopaedic surgeon, conducted three insurer examinations (IEs), and ultimately it was her opinion that the accident related injuries to Begum’s left knee had healed and that the pain in the left knee was caused by degenerative arthritis. However, the Tribunal preferred the report of Dr. Kliman “because his findings take into account the full scope of the accident related injuries to the applicant’s left knee. I also further find that her left knee pain is caused by the accident related injuries as diagnosed by Dr. Kliman.”
On behalf of Begum, “Dr. Gavett-Liu agreed that it is difficult to distinguish between the genuine pain caused by physical injuries and the applicant’s somatic pain. In my view, the orthopedic report of Dr. Kliman is clear evidence that the applicant sustained physical injuries in the accident which continue to cause significant pain. There is no clear evidence in this proceeding that the level of pain experienced by the applicant is disproportionate to her injuries. For these reasons, I prefer Dr. Chandrasena’s opinion and find that the applicant did not sustain a Somatic Symptom Disorder.”
Moderate Impairment in ADL Aside From Physical Pain
The Tribunal concluded that “genuine pain limits the applicant’s ability to prepare food, but she is able to instruct her husband in the kitchen on how to prepare meals for her family. Her ability to instruct others, which is all she can do because of physical pain, shows independence in completing the complex task of preparing South Asian cuisine and is an example of good functioning. The applicant’s impairment in the area of the ADL are primarily due to pain caused by the physical injuries she sustained in the accident. Her mental and behavioural disorders have caused impairments that are compatible with some, but not all useful functioning… she sustained a Class 3, Moderate Impairment in the area of the ADL.”
Social Functioning – Marked?
Dr. Gavett-Liu indicated that Begum “no longer has people over to her home because she cannot cook and, therefore, feels she cannot be a good host. According to Dr. Gavett-Liu, Begum also does not want to leave her home. She also states that the applicant does not want to speak with anyone and has severed all social connections”, all leading to a rating of a Class 4, Marked Impairment.
Pain as the Overriding Issue
Dr. Chandrasena, on behalf of Intact, noted that Begum is socially isolated due to pain and pain preoccupation, which he did not view as being part of a psychological disorder under Criterion 8. He also notes that she “keeps in touch with some family member by texting and with her brother in Bangladesh, and that her impairment levels are compatible with some useful functioning, therefore a rating of a Class 3, Moderate impairment”. The Tribunal noted that Begum “has lost interest in socializing with friends. I also note that she became emotional in her testimony when describing her use of a cane. This causes her to feel a high level of embarrassment as she does not want her friends to see her using a cane. Her strong feelings about this is one of the reasons she gave for not wanting to socialize with her friends.”
Tribunal’s Take
It was noted that Begum “testified that she continues to go for walks and grocery shopping with her husband twice per week and attends weekly physiotherapy sessions. In my view, the evidence shows that the applicant routinely leaves her home and does not suffer from the more extreme type of isolation described by Dr. Gavett-Liu. As such, I find that the applicant is agreeable to leaving her home and has not cut-off all social contact. The applicant appeared neatly dressed, was polite and acted appropriately at both psychiatric assessments. She made a similar good impression at her hearing. She testified in a straightforward manner and communicated well under the stressful circumstance of being at a hearing. The applicant’s abilities in the area of social function decreased after the accident. In particular, she became more reclusive and temperamental toward her husband. However, there are also examples good functioning such as interacting appropriately and communicating effectively with others. In my view, her post-accident ability to function is consistent with a Class 3, Moderate impairment.”
Not CAT
Given the foregoing, there was “no basis to find that she has an extreme impairment in either CPP or adaptation. Having found that the applicant has two moderate impairments and no extreme impairments, I further find that she is not catastrophically impaired under Criterion 8.”
ACB
Begum submitted that her spouse could no longer work as a pizza delivery driver after the accident because he had to look after her. This caused him to suffer a financial loss in order to provide attendant care to his wife. In her view, accordingly, she has incurred attendant care. The Tribunal however was not satisfied that this was in fact the case.
Lying to the Government
In the year of the accident, Begum’s spouse collected the Canada Emergency Response Benefit (CERB) based on not being able to work as a pizza delivery driver because of the pandemic. In testimony, he explained that was factually incorrect. Financial difficulties put him in a situation where he had to work for cash and collect the CERB at the same time. He “told the Canadian government that he could not work as a pizza delivery driver because of the pandemic. He is now changing his statement and says that he was untruthful to the Canadian government and continued to work as a pizza delivery driver until his wife’s accident. These two statements are contradictory. Therefore, I do not accept his explanation because it is unreliable.”
No Records to Support Allegation of Loss
The Tribunal noted that it would be reasonable to expect that someone who stops working would have some type of financial records that demonstrate a financial loss caused by the inability to work. However tax records evidenced there having been no income as a pizza delivery driver in 2020, the year of the MVA. Further, there were no bank statements or any other records that demonstrate a financial loss. This was suggested as “inconsistent with what would reasonably be expected in the circumstance where someone lost employment income from a fulltime job. For all these reasons, I find that the applicant has not established, on a balance of probabilities, that her spouse suffered a financial loss to care for her.”
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