Canada: The LAT CAT's First Life

Last Updated: January 16 2018
Article by Helen D.K. Friedman

The LAT CAT is now out of the bag with the recent release of one of the Licence Appeal Tribunal's most comprehensive CAT decisions in A.R. v. Allstate (Tribunal File No. 16-003415, January 5, 2018).

The 31 page decision was rendered following a 4-day hearing on the issue of whether the applicant had sustained a Class 4 (Marked) impairment due to mental or behaviour disorder.  As the accident occurred in March 2013, a finding of only one Marked impairment (out of a possible four) was required for a determination of Catastrophic Impairment.

The applicant relied on an assessment by Drs. Levitt and Romero which found a Class 4 impairment in all four domains of function while Allstate's assessors, Dr. Zielinsky and Dr. Dowhaniuk, rated the applicant's impairments as Class 2-3 (Mild to Moderate) in Activities of Daily Living and Class 2 (Mild) in the remaining three domains.

The applicant, a 47-year-old PSW, made one short-lived return to work attempt in the aftermath of the accident.  Her physical injuries were described as soft tissue in nature.  Psychological diagnoses ranged from Adjustment Disorder to Post-Traumatic Stress Disorder to Major Depressive Disorder to Chronic Pain Syndrome to Somatic Pain Disorder.

The Adjudicator applied a principled and disciplined approach to the analysis noting:

  • The burden of proof rests with the applicant to prove on a balance of probabilities that she sustained a Class 4 Impairment in any one of the four functional domains.
  • The word descriptors used in the Guides for each of the four domains are important.  A Marked impairment is "one which significantly impedes useful functioning" whereas a Moderate impairment is one where impairment levels are "compatible with some but not all useful functioning".
  • A single Marked impairment in one domain is all that is required.  The Adjudicator rejected Allstate's attempt to apply the Divisional Court analysis in Pastore rather than the Court of Appeal decision.
  • The evidence of Allstate's experts was preferred as a more accurate, "balanced, impartial and comprehensive" analysis in accordance with the Guides.
  • In cases where pain was a major factor, determinations are difficult.  In borderline cases, a multidisciplinary, multispecialty approach is preferred.
    • Allstate presented evidence from a multidisciplinary team which included a Psychiatrist, a Neuropsychologist and an Occupational Therapist.
    • The applicant's team consisted of two Psychologists, neither of whom were qualified by the CPSO to diagnose physical impairments such as chronic pain or to prescribe medication.
  • The Guides emphasize clinical neutrality and careful investigation when warning signs appear.  The Adjudicator found warning signs when the applicant failed validity tests on psychometric testing.
  • On a balance of probabilities, by application of the "but for" test, the applicant suffered from a Mental or Behavioural disorder as a direct result of the accident.
  • While the diagnosis of Adjustment Disorder best fit the applicant's symptomatology, diagnoses themselves are of limited assistance.  It is not about whether an applicant has a diagnosis, it is whether the impact of the impairment reaches Catastrophic status.
  • The applicant's Mental or Behavioural disorder impacted her daily function, however, it did not rise to the level of being Catastrophic.
  • In assessing the impact of the impairment on the four domains of function set out in the Guides, objectivity must always be kept at the forefront in assessing the evidence.
  • The severity of limitations and validity of claims of impairment turned, to a large extent, on the reliability of the applicant's evidence, her presentation to assessors and the results of validity tests.
  • Four pages of the decision addressed the reliability of the applicant's evidence and its impact on the objective assessment of her claim.
  • Credibility assessment addressed evasive, indirect and inconsistent testimony; reluctance to acknowledge only minor property damage in the accident; failing to acknowledge reports of function in clinical notes and records; numerous "do not recalls" as to actions at the accident scene; unsubstantiated reports of loss of consciousness absent corroboration; issues with work history; inconsistency on requiring an interpreter; mischaracterization of diagnostics; and minimizing resumption of social/volunteer activities post-accident.
  • Dr. Levitt's report was found to lack objective indicia due to excessive reliance on subjective reporting, i.e. "she reports", "she also reported" and consisted of some 34 paragraphs of "when asked" reporting.
  • Dr. Levitt's report was found to misconstrue causation with regard to the applicant's sexual functioning, resultant surgery and medication impact, none of which were in fact related to the accident.
  • Dr. Levitt failed to incorporate or acknowledge the extensive surveillance which threw into question the applicant's reports that she was not involved in activities of daily living, was isolated or did not feel safe driving.
  • Dr. Zielinsky applied the framework established in the Guides by use of objective psychometric testing and the Guides' descriptors which state a Marked impairment in two or more spheres "would likely preclude performing complex tasks without special support or assistance, such as provided in a sheltered environment."
  • The applicant's own evidence was that she had never missed a medical assessment, she attended appointments regularly, completed driver therapy sessions which lasted up to 40 minutes, used strategies such as lists and a day planner, completed brain activity exercises like puzzles, read, did crafts, used a crockpot cooker, worked within a budget, arranged to send clothes to El Salvador and attended to her own banking.
  • Complaints of cognitive difficulties were not corroborated by objective evidence of impairment including two head CTs.
  • The applicant failed both tests of performance validity administered by Dr. Levitt.  While Dr. Levitt attributed this to poor engagement resulting from pain and emotional factors, the Adjudicator accepted such failure requires an inference all test results are artificially low and might underestimate true abilities, such that a self-report should be looked at through a different lens.
  • If the applicant's pain was so bad that it impaired her test taking ability, testing should have been terminated by Dr. Levitt and resumed another day.
  • Despite Dr. Levitt's report indicating "our interpretations are offered with caution", incomplete testing was not re-administered.
  • With regard to Adaptation, Dr. Levitt over-emphasized the applicant's "inability to function at work" in light of only one brief return to work attempt with no details as to why that attempt failed and no evidence from co-workers or supervisors with regard to the attempt.  Reliance on a single return to work attempt, with no corroboration, was at variance with the Guides' requirement for failures and repeated failures to adapt to stressful circumstances.  One failed attempt to return to work was not sufficient.
  • The Guides do not require a collateral interview.  If a collateral interview is conducted, it would have been preferable to have a family member who lives with the applicant.  The collateral interview with the applicant's pastor was given little weight as it was hearsay and not subject to cross-examination.

Although the new (post-June 1, 2016) CAT definition should limit the prevalence of the Mental and Behavioural impairment disputes, numerous "pre-2016" claims remain in the system.

The Adjudicator's decision provides a comprehensive and by-the-book approach to Catastrophic Impairment analysis which emphasizes application of the Guides' descriptors, objective evidence over subjective reporting, heightened scrutiny in light of credibility concerns, the value of multidisciplinary assessment, the utility of surveillance, the importance of validity testing, objective diagnostics, review of clinical notes, property damage consideration, and corroboration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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