The LAT Finds Another Claimant CAT: Perhaps it is the Sign of a New Trend
I recently wrote an article on the case of Islamovic v. Co-operators, 2023 CanLII 67922. In that article, I noted that, at least anecdotally, it appeared as though it had been many months since the Licence Appeal Tribunal (LAT) found a claimant to be catastrophically impaired (CAT) under any category, including Criterion 8.
In may be proving to be a welcomed trend, the LAT has once again applied the AMA Guides to the Evaluation of Permanent Impairment to the evidence in a straightforward manner and found an applicant CAT under Criterion 8.
Tokan v Co-operators General Insurance Company, 2023 CanLII 81865 (ON LAT)
In the case of Tokan v Co-operators General Insurance Company, 2023 CanLII 81865 (ON LAT), the applicant’s assessors found that he suffered a marked impairment in activities of daily living, concentration, persistence and pace, and adaptation. Not surprisingly, the insurer’s assessors found that the applicant had only a moderate impairment in these three spheres.
The case was complicated by the fact that the applicant had a significant pre-accident medical history and was involved in two prior motor vehicle accidents.
On the issue of causation, the insurer argued that the accident was not serious, and that the applicant only sustained a sprain and strain-type injury in the accident. The insurer further submitted that the applicant’s symptoms were caused by his prior incidents, including injuries from gunshot wounds, as well as chronic back pain caused by motor vehicle accidents in 2012 and 2014.
The applicant submitted that the gunshot wounds and residual symptoms did not prevent him from working as a full-time Uber driver prior to the accident. In terms of the other pre-accident complaints, the applicant submitted that he was asymptomatic prior to the accident, and that his back issues had resolved before the time of the accident.
The adjudicator agreed with the applicant. The adjudicator noted that it is well-established that the appropriate test to determine causation is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121. To satisfy the test, the applicant must prove on a balance of probabilities that, but for the accident (i.e., had the accident not occurred), the applicant would not have suffered the impairments that form the basis of the application for CAT status.
The adjudicator noted that, while the evidence identified pre-accident injuries, the applicant was able to work full-time and function independently prior to the subject accident. Furthermore, the insurer’s physiatry assessor noted in his report that it was likely the applicant’s pre-existing lumbar degenerative changes were aggravated by the subject accident and would prolong his recovery from strain and sprain-type injuries.
As such, the adjudicator found that the applicant proved on a balance of probabilities that, but for the accident, he would not have sustained the impairments that form the basis of his CAT application.
Activities of Daily Living
The adjudicator noted that the AMA Guides specify that activities of daily living include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. The quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability in the context of the individual’s overall situation. It is not simply the numbers of activities that are restricted, but rather the overall degree of restriction or combination of restrictions.
The applicant’s CAT assessors found that the applicant was minimally engaged in activities of daily living post-accident. He required his wife’s assistance with personal-care activities such as showering, dressing, nail grooming, medication management and appointment scheduling, and toileting. He was unable to engage in his pre-accident housekeeping and only went grocery shopping once a week or every other week out of necessity because his wife did not have a driver’s licence.
The assessor also noted that the applicant was unable to remain seated for more than a few minutes. He also could not sustain attention and focus during functional testing and could not engage in casual conversation.
The applicant reported complete disengagement from social and recreational activities post-accident. His only regular activities post-accident included driving his wife to and from her workplace out of necessity and attending the mosque on Fridays.
The insurer’s psychiatric CAT assessor concluded that the applicant has only a moderate impairment in this sphere because he continues to attend his mosque on Fridays, he still interacts with some family and friend, he is still primarily responsible for his personal care and medications, and he is able to pay bills online, drive interpedently, and shop.
The Tribunal disagreed with the insurer’s assessors. The adjudicator found that the applicant does not engage in these activities consistently or as efficiently the way he did pre-accident. For example, while he drove full-time as an Uber driver pre-accident, the insurer’s own surveillance evidence showed that the applicant only drove short distances post-accident.
The Tribunal ultimately found that the applicant’s psychological impairments, including his somatic symptoms disorder, significantly impedes his useful functioning in his daily activities. Accordingly, the adjudicator found that the applicant’s limitations in his various activities of daily living, and the degree to which he is restricted, is more compatible with a marked impairment as opposed to a moderate one.
Concentration, Persistence and Pace
The adjudicator noted that the Guides define concentration, persistence and pace as having the ability to sustain focused attention long enough for the timely completion of tasks commonly found in work settings. Deficiencies in this sphere are best noted from previous work attempts or from observations in work-like settings. In activities of daily living, this could be reflected in terms of the ability to complete everyday tasks. The AMA Guides specify that testing is useful in assessing intelligence, memory, and concentration.
The applicant reported only being able to read 1-2 pages before he lost energy and focus. He described a deterioration of memory, and he was found to be distracted and unable to complete the psychometric measures.
The insurer’s assessor found that there was no evidence of gross thought disorder or word-finding difficulty. The assessor further noted that the applicant still drove independently, managed medications, and attempted to read the Koran.
The adjudicator found that the evidence supports that the applicant suffers from a marked impairment in this domain. The Tribunal noted that, while the applicant was able to drive post-accident (which was noted as a “cognitively complex task”), the quality of the engagement changed significantly post-accident. While he drove full-time pre-accident, his engagement post-accident was limited to only short trips. Accordingly, the Tribunal held that, while the applicant can complete some tasks of daily living, “he does so inconsistently and does not complete tasks in a timely manner [at para 45].”
As such, the Tribunal held that the “applicant’s residual level of functioning with respect to concentration, persistence, and pace is significantly impeded and, therefore, he has a marked impairment in this sphere [at para 46].”
The adjudicator noted that the Guides define impairment in adaptation as the repeated failure to adapt to stressful circumstances in the face of which the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder. That is, the applicant will decompensate or have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. The Tribunal further outlined that, by definition, impairment in adaptation impacts the ability to function across all activity areas, while the quality of the engagement is judged by the level of independence, appropriateness, effectiveness, and sustainability.
The adjudicator compared the competing assessments and preferred the conclusions of the applicant’s assessor. Unlike the insurer’s assessor, the applicant’s assessor considered the full scope of the applicant’s psychological and somatic symptoms, concluding “that the applicant’s ability to manage stresses common to the work environment would be substantially impaired [at para 51].”
Accordingly, the adjudicator found that the evidence establishes that the applicant has a marked impairment in adaptation.
As such, the Tribunal found that the applicant is catastrophically impaired pursuant to Criterion 8 as he established a marked impairment in three areas of function that precludes useful functioning.
In cases involving pre-existing injuries, the insurer often takes the position that all post-accident complaints are caused by pre-accident issues. As clarified by the Court in Sabadash and other cases since then (including this one), the existence of pre-existing medical issues does not negate an insurer’s responsibility to pay benefits. The test is clearly whether “but for” the accident, the applicant would have suffered the impairments which form the basis of the application for CAT status. If the applicant has a host of pre-existing issues but was functioning prior to the accident and is now no longer functioning in their pre-accident capacity, then the “but-for” test is clearly met.
In my previous article, I noted that the decision in Islamovic v. Co-operators was a very well-reasoned decision, providing an important framework for how to appropriately apply Chapter 14 of the AMA Guides. This includes setting out the Guides and going into a detailed analysis of each domain, including a discussion of the evidence of the applicant’s life both pre- and post-accident.
In this case, the insurer took the position that the applicant is not catastrophically impaired since he is able to engage in certain activities. However, 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. Similarly, in this case, simply because the applicant can drive does not mean that he does not have a marked impairment in concertation, persistence and pace. What is important is the fact that the quality of his engagement has changed significantly post-accident. The appropriate analysis was done in this case in each domain, and it followed that the Tribunal found the applicant catastrophically impaired.
While applying the AMA Guides to the facts of the case should be simple and straightforward, unfortunately, that has not typically been the case at the LAT. The AMA Guides provide a clear roadmap as to how catastrophic cases should be assessed. In this case, the Tribunal did an excellent job of applying the Guides. While one case could have possibly been considered an outlier, these two cases bring hope for more positive results for catastrophically impaired individuals moving forward.
This article was written by Alon Barda.