In the recent decision, Lanzon v Economical Insurance Company, 2023 ONLAT 20-005424/AABS, Vice Chair Logan found that the claimant was not catastrophically impaired under criterion 8 of the Schedule.
In order to meet the test for catastrophic designation under criterion 8 under the version of the Schedule in force at the time of the Applicant’s October 4, 2012 accident, an injured person must show that they have sustained either a Class 4 Marked Impairment or a Class 5 Extreme Impairment in at least one of the four spheres of Activities of Daily Living, Social Functioning, Concentration Pace Persistence, or Adaptation in Chapter 14 of the AMA Guides due to an accident-related mental or behavioral disorders. In this case, the parties disagreed about whether the claimant had sustained a Class 4 impairment in the area of Adaptation.
In finding that the claimant had not sustained a catastrophic impairment, Vice Chair Logan preferred the evidence of the respondent’s assessors, psychiatrist, Dr. Joel Eisen and neuropsychologist Dr. Douglas Chute, to the claimant’s assessor, neuropsychologist Dr. Lara Davidson. Ultimately, she found that Dr. Davidson relied too heavily on the claimant’s self-reporting when the claimant was not a reliable historian. Dr. Eisen more fully considered the claimant’s pre-accident psychological condition, work history, and long-term relationship. The claimant’s life did change after the accident, but his psychological function was not impeded so as to constitute a Class 4 impairment.
Prior to Vice Chair Logan hearing this case, the Tribunal had previously decided that the claimant was not catastrophically impaired because his multidisciplinary catastrophic assessment was not done in compliance with section 45(2)1 of the Schedule. Following this decision, the Tribunal granted the claimant’s reconsideration request and ordered a rehearing on the issue of whether the claimant had sustained a catastrophic impairment. Despite reaching the same conclusion as the Tribunal at the initial hearing with respect to the claim of catastrophic impairment, Vice Chair Logan reached a different conclusion in deciding that the claimant’s report was section 45(2)1 compliant.
Section 45(2)1 of the Schedule requires that an assessment or examination in connection with determining a catastrophic impairment must be conducted only by a physician; however, the physician may be assisted by such other regulated health professionals as they may reasonably require.
In this case, the claimant argued that the 2019 Omega Medical Associates Multidisciplinary Catastrophic Impairment Evaluation Report, which was authored by Dr. Lisa Becker and Dr. Harold Becker, complied with section 45(2)1 of the Schedule. Dr. Becker reviewed the medical brief, determined if a CAT evaluation was warranted, identified the most appropriate team to complete the comprehensive assessment based on the identified impairments and injuries, selected the experts, prepared an executive summary which included a case synopsis and review of each individual assessors’ findings; and determined whether the claimant met the CAT requirements. The claimant argued that this role played by Dr. Becker was consistent with the Black’s Law Dictionary definition of the term “conduct” which is “to manage; direct; lead.”
Vice Chair Logan agreed with the claimant that the roles that Dr. Lisa Becker and Dr. Harold Becker played in the assessment process were consistent with the definition of “conduct” found in Black’s Law Dictionary. Moreover, the Schedule does not require a physician to carry out every element of an assessment; rather, it specifically contemplates the assistance of other regulated health professionals. Therefore, a conducting physician is not required to provide an analysis that is independent of other experts who have relevant expertise, and the fact that another involved assessor provides relevant expertise does not negate the conducting physician’s role. For these reasons, Vice Chair Logan found that the roles of the claimant’s experts went beyond “quarterbacking” the assessments of others, and were compliant with section 45(2)1 of the Schedule.
Kari-Anne Layng is a lawyer at the firm and author of this blog. If you have a question about this decision or a similar file, please contact Kari-Anne at 416-777-2811 ex 6308
