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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Helen D.K. Friedman
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions