- March 19, 2023
- Posted by: azimi
- Category: Psychological Impairment
Case Study of Gao v. Aviva, 2022 CanLII 120024
Gao v. Aviva is a recently published case that explores how psychometric testing results indicating a mental health diagnosis, even in reports whose conclusions directly conflict with each other, can strongly favor a determination that there was a psychological impairment as a result of a MVA.
In this case, the applicant was injured in a MVA that occurred on April 20, 2019. She sought accident benefits, some of which the respondent denied, and therefore she brought the matter before the LAT for dispute resolution.
The issues were whether the applicant was entitled to an IRB beyond the 104 weeks, whether her injuries were minor and therefore subject to the $3,500 limit in the MIG, and whether she was entitled to a psychological assessment and chiropractic and physiotherapy treatment plans.
On the issue of the classification of the injury as being either minor or non-minor, the LAT Member began the legal analysis by noting that a psychological impairment is not captured by the definition of a minor injury in the legislation. Therefore, if the applicant can prove that she sustained a psychological impairment, she would not be subject to the $3,500 limit on Med-rehab benefits.
In support of her position that she had suffered a psychological impairment, the applicant submitted a psychological assessment by her assessor. This report diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, and other specified somatic symptom and related disorder. The assessor had reached this conclusion after conducting a clinical interview with the applicant and after administering psychometric testing on the applicant.
A psychometric test is a test that measures the ability of the test-taker to perform in a job role by objectively measuring their traits, intelligence, abilities, behavior and aptitude.
The respondent attempted to denigrate the applicant’s psychological assessment report in a variety of ways. For example, they argued that there were inconsistencies in the report; that the assessor either was under supervision or didn’t practice during a part of her career; and that she did not review all of the medical documentation. The LAT Member was not convinced by these points: the inconsistencies were minor, she was registered at the time of the assessment, and the lack of thorough analysis of medical documentation was not considered negative.
Next, the respondent tried to use the psychological assessment report of its IE assessor to challenge the applicant’s psychological assessment report. The IE assessor’s psychometric testing results were the same in some respects as those of the applicant’s assessor’s: a score in the moderate depressive range; applicant’s report of 50% change in her emotional condition since the onset of her injuries; and the rehabilitation checklist found that the applicant’s pain, anxiety/stress, lack of energy and difficulty sleeping were barriers to recovery. Despite these results, the IE assessor concluded that the applicant’s psychological impairment was not of a substantive nature and diagnosed her with subclinical features of adjustment reaction.
The LAT Member ignored the conclusion of the IE assessor, which contradicted its psychometric results, and found that these psychometric test results corroborated (i.e. independently supported) those of the applicant’s assessor. It was thus proven that the applicant had a psychological impairment and was outside the MIG.
However, the applicant was not able to successfully prove that she was entitled to the chiropractic or physiotherapy treatment plans as it was deemed that she had not established on a balance of probabilities that these plans were reasonable and necessary; although the respondent was ordered to pay the cost of her psychological assessment.
In conclusion, the import of this case for MIG cases is that, while an opposing psychological assessment report may conclude that there has been no psychological impairment, psychometric test results it cites may nonetheless indicate otherwise.