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Volume. 4 Issue. 15 – April 15, 2020

Moderate Impairments Lead to 55% WPI for the CAT

Marked + Mild = Moderate – In 18-000017 v Gore Mutual, the Tribunal considered the case of an Applicant, seriously injured in a 2015 accident, who sought a CAT determination in 2017, with his experts confirming both a combined WPI in excess of 55% (72%) as well as a marked impairment in Adaptation. The Respondent’s experts contended there to have been a WPI rating of 35%, with only mild impairments in all four domains of functioning. The Tribunal considered at length the appropriate impairment rating for mental and behavioural disorder given the divergent opinions of the experts.

Those of the Respondent while indicating they could not formulate an opinion because of validity issues encountered in their testing, nonetheless, concluded there to be a mild impairment in all four spheres, as opposed to the Applicant’s assessor’s finding of a marked impairment.

The Tribunal, in dismissing the impact of concerns over validity, concluded that “it cannot be said that [the] impairment levels are compatible with most useful functioning, considering the impact of his physical injuries, ongoing limitations from his neck surgery, traumatic brain injury, limited employability, sleep, and chronic pain disorder.” In addition, it also found that the “psychological condition does not, on a balance of probabilities, ‘significantly impede all useful functioning’”, but they are rather compatible with “some, but not all useful functioning” as described in the Guides, hence a moderate impairment.

Noting that the Guides provide a range of 15-29% for a moderate impairment, the Tribunal found on the evidence there to be “an all-encompassing limitation that affects (the) ability to engage in important life endeavours…” Accordingly, the Tribunal found it appropriate to use the highest number from the range for moderate impairment (29%) for mental and behavioural disorder. This value, in conjunction with other assigned values for physical and neurological impairments, resulted in the finding of a 55% WPI.

Degrees of LATitude – AMA Guides on Chronic Pain Persuasive? Or No Finding?

In two decisions released less than a month apart, the same adjudicator, in one instance accepted the AMA Guides as “persuasive guiding factors” for assessing chronic pain, while in the second instance made no “finding as to appropriateness of these factors.” This truly reflects the ‘Degrees’ of LATitude.

AMA Guides Persuasive, Not Binding – In 18-007493 v Technology Insurance, the Tribunal found that the Applicant suffered from a chronic pain condition that placed him outside of the MIG. Noting that chronic pain is not defined in the Schedule, the Tribunal cited four criteria for consideration, requiring “i. severe and constant pain… ii. persisted well beyond the normal healing times… iii. not a clinically associated sequelae to minor injuries… iv. functional impairment and disability.”

The Respondent for their part relied upon “(assessing) against six criteria described in the American Medical Association (“AMA”) Guides, which state that at least three of them must be met for a diagnosis.” The Tribunal accepted the AMA criteria as “persuasive guiding factors”, while at the same time cautioning that “I am not bound by the AMA Guides or these criteria and acknowledge that these are not incorporated into the Schedule and that they are not determinative.” The Tribunal found “overwhelming evidence” that “pain was well-documented and has lasted more than two years”, thereby meeting the “simpler definition for chronic or persistent pain…pain that continues when it should not”.

AMA Guides Confusion, No Finding – In 18-011072 v TD Insurance, the same adjudicator further considered chronic pain in context of the MIG, once again citing the four criteria in the previous decision. However, in this instance, with the Applicant’s assessor’s reliance upon the six diagnostic criteria in the AMA Guides, the adjudicator found that “I am not bound by the Guides and do not make any finding as to appropriateness of these factors in assessing whether a chronic pain syndrome exists.” There was however acknowledgment “that prior Tribunal decisions have accepted their criterion as persuasive in assessing chronic pain.”

In the case at hand, the Tribunal took issue with the Applicant’s assessor having utilized the “4th edition as well as the more recent 6th edition of the Guides”, as “both versions are quite different and there are widely varied topics and methods.” Further, “my reading of the 4th edition of the Guides, and in particular Chapter 15 entitled ‘Pain’, suggests that the presence of two or more (not three) of the eight (not six) characteristics is considered sufficient to establish the diagnosis of chronic pain. Indeed, the 4th edition refers to the diagnosis criteria as the ‘Eight Ds’. I am not certain the reason for these discrepancies in [the Applicant’s assessor]’s report and why his six criteria did not align exactly with the “Eight Ds” in the Guides, 4th (reference to ‘Duration’ and ‘Dramatization’ appears to have been omitted) or why he said three factors must be met when the Guides speak to only two being required.”

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