The LAT Finds a Claimant CAT: An Outlier or the Sign of a New Trend?
In 2018, I wrote a paper that examined the decisions at the Licence Appeal Tribunal (LAT) over the first two years of its existence. At the time, the conclusion was that the LAT was largely balanced in terms of its decisions.
Much has changed since then. While I have not compiled specific data, from a general review of recent decisions, it is clear that many of the LAT ‘s rulings are heavily skewed in favour of insurers. This is frequently the case when it comes to hearings regarding catastrophic impairment.
However, in the case of Islamovic v. Co-operators, 2023 CanLII 67922 (ON LAT), in a well-reasoned decision, the Tribunal found the applicant to be catastrophically impaired. Hopefully, this decision is not simply an outlier among rulings in favour of insurance companies, but rather the sign of a new trend at the LAT.
The applicant was involved in a serious accident wherein she suffered an L1 compression fracture of her spine, as well as a foot fracture and an ankle sprain. The applicant did not return to work after the accident and attended ongoing treatment for chronic pain.
The application for catastrophic impairment was made under Criterion 8 for an impairment resulting from a mental or behavioural disorder.
At the outset, the Tribunal reviewed the various records. The Tribunal highlighted that, where an individual’s diagnosed mental disorder includes pain associated with a general medical condition, then it is reasonable to include that pain when determining an individual’s impairment under Criterion 8.
Analysis of the Functional Domains
The applicant’s assessors found that the applicant has a mild impairment in social functioning, as well as a marked level of impairment in activities of daily living, concentration, persistence and pace, and adaptation. Since the applicant has a marked impairment in three out of four domains, the applicant’s assessors concluded that the applicant is catastrophically impaired.
Conversely, the insurer’s assessors found that the applicant has a moderate impairment in the domain of social functioning and adaptation, and a mild impairment in activities of daily living and concentration, persistence and pace.
Activities of Daily Living
Chapter 14 of the AMA Guides to the Evaluation of Permanent Impairment describe “Activities of Daily Living” as activities such as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. The Guides state:
“In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.”
When explaining what is meant by the overall degree of restriction, the AMA guides provide the following example. If a person who might be able to cook and clean is too fearful to leave home, to shop, or to see a physician, then the restriction may be considered marked.
The Tribunal engaged in an assessment of the applicant’s pre- and post-accident activities of daily living. Prior to the accident, the applicant was in good physical and mental health. She worked in a steady part-time job several times a week. She accessed the community for work, shopping, and other activities. She played a central role in the home by completing household chores, laundry, grocery shopping, and other outdoor activities. She saw friends and family and went out socially.
Following the accident, she became unable to work. Essentially homebound, she is bow fearful of driving. She cannot tolerate busy places and avoids going into the community alone.
The Tribunal outlined that the applicant can participate in some activities of daily living, albeit with slowness and difficulty. She prays three to five times each day, but she rarely attends religious services. She goes on short walks and occasionally accompanies her husband grocery shopping. She can only cook simple meals and can only fold laundry.
The Tribunal favoured the conclusions of the applicant’s assessor who had considered the pain-related restriction under Criterion 8. The applicant’s assessor gave evidence that the applicant avoided activities because of pain, worried about activity or pain causing damage, exhibited fears of re-injury, and ruminated about pain/somatic symptoms. In this regard, the Tribunal also took into consideration the applicant’s compromised functional performance due to pain and fatigue during the in-home assessments.
While the applicant was able to complete various activities, the Tribunal importantly highlighted that, “under the AMA Guides, it is not the number of activities that are restricted that is important, but the overall degree of restriction; and the quality of the activities of daily living are judged by their independence, appropriateness, effectiveness and sustainability” (at para 70).
In this regard, other than the daily prayer and self-care/personal hygiene which the applicant carries out on a somewhat compromised basis, the Tribunal noted that the applicant’s restrictions are significant. She is unable to work, relies on family to carry out substantially all her other activities, and is significantly homebound.
Accordingly, given the applicant’s pre-accident level of independence, employment, activity in the community, and responsibility in her household, and considering the pain related components of the applicant’s mental and behavioural disorder, the Tribunal found that the applicant is “significantly impeded in her activities of daily living under Criterion 8 – a marked level of impairment,” (at para 71).
Concentration, Persistence and Pace
As outlined in the AMA Guides, the domain of concentration, persistence and pace relates to the qualities needed to perform many activities of daily living, including task completion:
“Task completion refers to the ability to sustain focussed attention long enough to permit the timely completion of tasks commonly found in activities of daily living or work settings…Strengths and weaknesses in mental concentration may be described in terms of frequency of errors, the time it takes to complete the task and the extent to which assistance is required to complete the task.”
The Tribunal preferred the opinion of the applicant’s assessor. The assessor considered pain-related issues, including data from the functional assessment of the applicant’s occupational therapist. That assessment’s task-related activity found substantial issues with task completion, frequent breaks, and impeded pace. The assessment also highlighted that the applicant withdrew from tasks early due to heightened pain symptoms and emotional decompensation.
While the applicant had some capacity to read or watch television, her evidence was that she had trouble reading and has racing thoughts. She also reported that she needed to reread information due to concentration difficulties. Accordingly, the Tribunal found that the preponderance of evidence supports that the applicant has a marked impairment under Criterion 8 in concentration, persistence and pace.
The AMA Guides explain the domain of Adaptation (or “Deterioration or Decompensation in Work or Work-like settings”) as:
“Repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms…He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.”
Again, under this domain, the Tribunal preferred the claimant’s assessor to that of the insurer’s assessor. The Tribunal was critical of the insurer’s assessor’s failure to reference the observations of the applicant in functional assessment settings. The Tribunal agreed with the applicant’s assessor that information relevant to assessing adaptation would not necessarily be available in an interview setting alone.
The applicant’s assessor testified that the applicant’s emotional state impacted her adaptation, such that even mild stressors led to emotional decompensation. Furthermore, the reports identified no credibility issues, nor did the Tribunal find any during the hearing.
Accordingly, considering the evidence of the applicant’s active and diverse engagement in her pre-accident life, the Tribunal found that the preponderance of evidence shows that the applicant’s mental and behavioural disorder significantly impedes the applicant in the domain of adaptation.
Based on the above findings, the Tribunal found that the applicant has demonstrated that she suffers marked impairments in the domains of activities of daily living, concentration, persistence and pace, and adaptation. Since she was found to have a marked impairment in three domains, the Tribunal found that she is catastrophically impaired under section 3.1(1)8 of the Schedule.
This is a very well-reasoned decision. The Tribunal sets out Chapter 14 of the AMA Guides and the explanation provided in the AMA Guides regarding each domain. The Tribunal then goes into a detailed analysis of each domain, including a discussion of the evidence of the applicant’s life pre- and post-accident.
As set out specifically in the AMA Guides, the fact that a person may be able to engage in certain activities is not determinative. While a person may be able to cook and clean, if that person is homebound and too fearful to leave home to shop or even see a doctor, then the restriction may be marked. Applying the AMA Guides to the facts of the case should be simple and straightforward but unfortunately, that is typically not the case.
It is notable that the Tribunal took into consideration the applicant’s pain and the fact that it significantly impacted her activities. In this regard, the Tribunal was rightly critical of the insurer’s assessor and the failure to reference the observations of the applicant in functional assessment settings. Indeed, observations of the applicant in functional assessment settings provide important information relevant to the catastrophic assessment; an assessment only utilizing information available in an interview setting alone is incomplete.
The hope is that there will be more decisions such as this one from the Tribunal moving forward. The AMA Guides provide a clear roadmap as to how catastrophic cases should be assessed. If applied in that manner, there will surely be many more applicants found catastrophically impaired at the LAT.
This article was written by Alon Barda.