V201 – Cultural Factors, Validity Measures and the Onus of Proving a Claim
Consider a 26-year old woman who worked three jobs prior to being involved in a motor vehicle accident. She suffers soft tissue injuries, anxiety and acute distress as a result of the accident but she manages to recover to the point that she returns to employment and she begins a College program. Her income replacement benefit is subsequently terminated at about 7-months post-accident; the termination is based on an insurer examination. Then, at 11-months post-accident, she finds herself very nearly involved in another accident while riding as a passenger in a vehicle. She is so frightened in the moment of the near collision that she experiences a blackout. Sadly, the blackouts persist thereafter and they disable her from her employment and her studies. She suffers from PTSD, panic attacks and anxiety. She asks that her income replacement benefit be reinstated but her request is refused by her insurer. She later submits a catastrophic application but it is also denied.
This is the case that was considered by Adjudicators Neilson and Trecksler in 16-002234, Applicant and Unica Insurance Inc. The case revolved largely around conflicting assessor opinions as related to the applicant’s credibility.
Dr. Christopher Hope, neuropsychologist, was engaged by the insurer for the catastrophic insurer examination. It was Dr. Hope’s opinion that the applicant’s test results were invalid and that no diagnosis could be rendered. He opined that the applicant had probably exaggerated her symptoms and noted that her PTSD did not follow the normal course of recovery.
In contrast, the psychologist engaged for catastrophic assessment on the applicant’s behalf, Dr. Natasha Browne, supported a diagnosis of PTSD with a unique presentation including blackouts during times of increased stress and anxiety. She noted the test results as being valid. Dr. Browne did not endorse any evidence of malingering and she recognized that there were cultural factors that likely affected Dr. Hope’s test results.
In considering the issue of credibility, the Adjudicators preferred Dr. Browne’s testimony. In so deciding, they included the following comments as related to the importance and impact of cultural factors:
“The applicant is of African descent who was born and raised in the Caribbean and came to Canada when she was 10 years old. Dr. Browne’s evidence was that culturally, one must look at the history of mental health and mental illness and how it is displayed within the Caribbean community. This means looking at possibilities of defensiveness, the social stigma that is attached to mental health and how that may present in terms of the applicant wanting to express her symptoms or at possible elevations in test measures. The psychological test measures are Westernized measures that are normed, primarily, on a Caucasian population, which does not mean that the results are invalid. However, Dr. Brown stated that there is research that mentions that, given the social history of the English speaking Caribbean population, being marked by oppressive power dynamics, colonialization, slavery and racism, if the client is of African heritage and the clinician is male and Caucasian, that can impact engagement or rapport building, which in turn could affect the validity testing.
Dr. Browne is a woman of African descent and so is the applicant. Dr. Browne testified that being a Black woman, she was more likely to build a rapport with the applicant than Dr. Hope, who is a white male. Dr. Hope testified that there was no indication that he did not develop a rapport with the applicant. However, he testified that a failure to build a good rapport could affect the test results. He also agreed that cultural and gender differences between a neuropsychological assessor and the patient will have an impact on their rapport.”
The outcome of the decision is that the applicant was found to be eligible to receive income replacement benefit in the pre-104 week disability period and her catastrophic application was accepted on the mental or behavioural impairment criteria.
Surprisingly, and in despite of being confirmed as having marked impairment with respect to Activities of Daily Living and Adaptation, the applicant’s claim for an income replacement benefit in the 104-week and ongoing post-accident period was rejected. The Adjudicators were quite brief on this issue and stated:
“The test for post-104 week IRBs is whether the applicant suffers a complete inability to engage in an employment for which she is reasonably suited by education, training or experience. The onus is on the applicant to show that she meets this test. We find that the applicant is not entitled to IRBs from July 28, 2016 to date and ongoing because she failed to satisfy her onus.
We accept that the applicant suffers from blackouts which would likely make employment difficult. However, we were not provided with any evidence on alternative suitable employment, whether there was employment that could work around the applicant’s blackouts, or any evidence that the applicant made some effort to identify suitable employment or attempt to work at the suitable employment. For these reasons, the applicant is not entitled to post-104 week IRBs.”
We can recognize that the applicant’s position was that she suffered severe impairment as a result of the accident. The impairment disabled her to such a significant extent that she suffered marked impairment in two spheres; her impairment significantly impeded useful function. One might assume that the applicant had not researched alternative employment or made effort to attempt to work given that she was, quite simply, not capable of working. For the appeal decision to put such an onus on the applicant, and to see her claim rejected as a result of not providing satisfactory evidence, is surely a harsh and unexpected outcome in this case. This decision is certainly one to consider when preparing for and advancing disputes as related to the post-104 week income replacement benefit period.
16-002234, Applicant v. Unica Insurance Inc.
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