Crystal Garvey v. Economical Mutual Insurance Company, 2023 CanLII 34463

21-012435/AABS

Licence Appeal Tribunal File Number: 21-012435/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Crystal Garvey

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Clive Forbes

APPEARANCES:

For the Applicant:

Crystal Garvey, Applicant

Mikolaj Grodzki, Counsel Alex Elkin, Counsel

For the Respondent:

Courtney Sparks, Adjuster

Martin Forget, Counsel Mai Nguyen, Counsel

Court Reporter:

Alyssa Scott

HEARD: by Videoconference:

March 20 to 24 & 27, 2023

OVERVIEW

1Crystal Garvey, the applicant, was involved in an automobile accident on August 23, 2018 and sought benefits from the respondent, Economical Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2Previously, a five-day hearing was held in January 2022, file # 20-009618/AABS, to determine whether the applicant was entitled to, amongst other benefits, pre-104-week and post-104-week income replacement benefits (IRB). In a decision released on August 11, 2022, the Tribunal held that the applicant was entitled to pre-104-week IRB but that she had failed to prove that she was entitled to post-104-week IRB.

3The issue in dispute at this hearing is a catastrophic impairment (CAT) designation.

4The applicant’s position is that she is catastrophically impaired as a result of the accident. The respondent’s position is that the applicant mischaracterized her true mental and physical state to the medical assessors and therefore she is not catastrophically impaired. The parties also submit that the maximum amount for medical and rehabilitation benefits for non-catastrophic impairment according to the Schedule have been exhausted.

PRELIMINARY ISSUES

Abuse of Process and Res Judicata

5At the commencement of the hearing, the respondent submits that the application before me constitutes an abuse of process as the applicant seeks to relitigate facts that have been previously determined by the Tribunal in its August 11, 2022, decision. As such, the respondent argues that the applicant should be barred from proceeding with this application. In addition, the respondent submits that in order for the applicant to be successful in proving catastrophic impairment (“CAT”), the Tribunal would be required to make factual findings contrary to its August 12, 2022, decision on post-104-week IRB entitlement.

6The applicant submits that the evidentiary backdrop in this matter is not identical to what was before the Tribunal at the hearing that was held in January 2022. In addition, the applicant argues that the CAT issue in dispute at this hearing is not the same as IRB entitlement and neither are the tests for determining post 104-week IRB entitlement the same for CAT designation. The applicant also submits that the evidence she intends to rely on for CAT, being Dr. Bobbie Ross’ CAT report dated May 2, 2022, is new evidence that became available after the hearing in January 2022. The applicant also argues that the principle of res judicata is not applicable in this matter because the evidence to be relied upon is new, the issue in dispute is different and fairness dictates that the August 12, 2022, decision should not be binding in this hearing.

7Throughout submissions, both parties argued res judicata freely and addressed the applicable test. The four preconditions that must be established when determining whether to apply res judicata are:

i. The parties must be the same in both actions;

ii. The prior claim must be within the jurisdiction of the Court/Tribunal;

iii. The prior adjudication must have been on the merits; and

iv. The prior decision must have been a final judgement.

8Res judicata can be waived in the following situations:

i. The first proceeding is tainted by fraud or dishonesty;

ii. Fresh, new evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

iii. When fairness dictates that the original result should not be binding in the new context.

9The respondent also submitted that to permit the applicant to relitigate findings of fact that have been previously determined against her is an abuse of process, a wider concept than res judicata. The authority to prevent abuse of its processes is specifically granted to the Tribunal by s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA).

10I do not find this application to be an abuse of the Tribunal’s process. I agree with the applicant and find Dr. Ross’ CAT report is new evidence that the applicant intends to rely upon and was used by her as the basis to submit a second OCF-19, dated May 6, 2022, to the respondent for CAT determination. In addition, I agree with the applicant that the principles of res judicata do not apply in this case for the same reasons.

11Furthermore, procedural fairness warrants that with the new evidence submitted by the applicant, she be given the opportunity to prove on a balance of probabilities whether or not she meets the legal test for CAT impairment under Criterion 8. As such, the respondent’s request to bar the applicant from proceeding with this application because of abuse of process is denied.

Failure to Disclose Relevant Productions

12The respondent submits that the applicant was non-compliant with Vice Chair Terry Hunter’s Motion Order dated February 28, 2023, requesting that the applicant produce all outstanding productions by March 13, 2023. The respondent argues that despite numerous follow up requests, the applicant has failed to produce the requested productions which are relevant to the CAT issue in dispute. Nor has the applicant provided any evidence of her best efforts attempts.

13The respondent also submits that the applicant’s failure to produce the outstanding documents significantly prejudices the respondent as it impedes the respondent’s ability to know the case to be met and to adequately respond to the issues in dispute. The respondent requests that the application be dismissed given the applicant’s repeated failure to disclose relevant productions. In the alternative, the respondent relies on Rules 3.4 and 9.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules) and requests that all evidence relating to outstanding productions be excluded from the hearing.

14The applicant submits that the grounds for dismissal without a hearing are set out in Rule 3.4 of the Rules and are limited to applications that are frivolous, vexatious, commenced in bad faith, or otherwise an abuse of process. She argues this is not such a case. In addition, the applicant submits that she cannot control how long third parties take to produce documents and that she has made all best efforts to comply with the production order dated February 28, 2023.

15Notwithstanding the applicant’s failure to produce relevant documents and Rule 9.4 as mentioned by the respondent, Rule 3.1 requires the Tribunal to:

i. facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative;

ii. Ensure efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal; and

iii. Ensure consistency with governing legislation and regulations.

16In addition, s. 15(1) of the SPPA allows for the admission of any relevant document that is not otherwise privileged or statutorily inadmissible. I agree with the applicant that the grounds for dismissal as set out in Rule 3.4 are not applicable in this matter. Also, I do not agree that the respondent is significantly prejudiced because the applicant has failed to produce relevant productions. In any event, the onus is on the applicant to prove that she meets the test for a CAT determination. As such, the respondent’s request that the application be dismissed because of the applicant’s failure to disclose the relevant production is denied. Furthermore, those documents that the applicant produced late will be admitted into evidence and weight will be assigned to them accordingly.

ISSUES

17The following issue is in dispute:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

RESULT

18The applicant did not sustain a catastrophic impairment as defined by the Schedule.

ANALYSIS

19I find that the applicant is not CAT as defined in the Schedule for the following reasons.

20The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one. The criteria to establish CAT are found under s. 3.1 of the Schedule. In this case the applicant claims under criteria 8, and must prove, that she has a “marked” or class 4 impairment in at least three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. The four domains or areas of function as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition, 1993 (“Guides”), in Chapter 14 at page 301 are: (1) activities of daily living; (2) social functioning; (3) concentration, persistence and pace and (4) deterioration or decomposition in work or work like settings (also referred to as adaptation).

21There is no dispute, and it is clear to me, that the applicant has suffered impairments as a result of the accident. However, the evidence suggests that most of the applicant’s impairments existed before the accident. The applicant was the driver of her motor vehicle that was rear-ended while she was stopped at a red light. She reported hitting her head on the steering wheel and her left knee on the dash following the collision. She went to the police station to fill out the accident report and drove home afterwards. One week after the accident, she went to the hospital and was diagnosed with a soft tissue injury with possible nondisplaced rib fracture. Her family physician saw her on September 6, 2018, approximately two weeks after the accident, and diagnosed her with cervical strain, head injury and chest wall contusion as a result of the accident.

22The applicant submits that she has a marked or class 4 impairment in all of the four domains and therefore meets the test for a CAT impairment pursuant to criterion 8. I find that based on the testimony of the applicant, and the medical and documentary evidence, that the applicant does not meet this test as set out in the Schedule.

23While the applicant may no longer be the same person she was prior to the accident and has some limitations and restrictions to her daily life that she did not previously have, the Guides provide that showing restriction or limitation in only one or two of the areas of function is not sufficient to meet the Schedule’s catastrophic impairment test. Rather, the Guides provide that in order to have a CAT impairment one must demonstrate that their impairments significantly impede or preclude useful functioning. It is also important for an applicant to accurately capture their pre- and post-accident areas of function based on the totality of the medical and documentary evidence provided in order for the Tribunal to determine the level of impairments for each of the four domains and whether these impairments, significantly impede useful functioning.

Activities of Daily Living (ADL)

24The Guides specify on page 294 what needs to be considered for this domain. For example: activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, social and recreational activities. These activities must be judged by their independence, appropriateness, effectiveness and sustainability. The individual’s capability of initiating and participating in these activities independent of supervision or direction must be clearly defined and understood in the context of pre- and post-accident functional abilities. What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

25With regard to her specific ADLs, the applicant testified that pre-accident she was fully independent, made annual trips to Niagara Falls, participated in weekly karaoke, had regular World Wrestling Entertainment (WWE) get-togethers and was regularly involved in her children’s lives. She also testified that because of her wife’s personal health issues, she was responsible for about 80% of the daily routine and activities that included cleaning, sweeping, shopping, cooking, laundry, driving, baths, family banking, meal preparation, bed making, taking her children to appointments and medication management.

26In her CAT assessment report dated May 2, 2022, Dr. Bobbie Ross, psychiatrist, diagnosed the applicant with a chronic pain condition due to central sensitization mechanisms and post concussion syndrome. Dr. Ross concluded that within the activities of daily living domain, the applicant presents with a class 4 marked impairment. Dr. Ross stated that the applicant reported that showering and bathing are difficult, and it is difficult for her to lift her arm because of pain. The applicant reported that she has to be careful when she bends over or turns because she can get pressure-like pain in her head. The applicant also reported that she does most of the cooking in the family and most of the housework. She also stated that she and her wife both look after their children and she does most of the homework supervision and bathing of their children.

27In a s. 44 CAT report dated February 24, 2021, Dr. Kehinde Aladetoyinbo, psychiatrist, stated that, during his assessment and from reviewing the available documents, in the area of activities of daily living, the applicant mostly independently attends to her personal hygiene, dressing and grooming. He also indicated that she reported that she had a personal support worker (PSW) who cooked, cleaned and did her laundry but now she depends on her parents. However, this is different than what was reported by the applicant to Dr. Ross. Dr. Aladetoyinbo mentioned that the applicant independently completes and sustains a significant proportion of the activities outlined effectively to maintain her daily living. He concluded that she has features suggestive of class 4 marked impairment under this domain.

28I do not agree with Dr. Ross’ and Dr. Aladetoyinbo’s assessments because not much appears to have changed with the applicant’s pre- and post-accident ADLs. In my view the totality of the evidence does not support their positions that the applicant presents with a class 4 marked impairment under this domain because of the psychological contribution to the impairments. My review of the medical and documentary evidence and the applicant’s own self-reporting and testimony does not support this claim.

29For example, the applicant’s family physician, Dr. Lise-Anne Robillard, noted on the applicant’s Ontario Disability Support Program (ODSP) form dated September 19, 2017, pre-accident, that the applicant has generalized anxiety disorder and PTSD. Dr. Robillard also listed the applicant’s impairments as recurrent symptoms of anxiety, occasional panic attacks, insomnia, recurrent nightmares, increased arousal, irritability and poor concentration. These were also captured in Dr. Robillard’s clinical notes and records (CNRs). In addition, Dr. Robillard stated that these impairments cause the applicant to avoid public spaces, respond poorly to conflict and stressful situations, affect her concentration and cognition.

30Dr. Robillard also indicated that the applicant displayed avoidant behaviour, social isolation, diminished interest in usual activities, socializing and diminished short-term memory. In addition, Dr. Robillard also stated on the ODSP form dated September 19, 2017, or approximately one year pre-accident, that with regard to the applicant’s ADLs, she needed support in order to complete tasks or some supervision to get tasks done in housekeeping, physical activities, shopping for groceries, transportation, social interactions and intellectual activities.

31In addition, the medical records reveal that the applicant had pre-accident medical issues with chest pain complaints and had attended the hospital with persistent tachycardia, weight gain, arthritis in her legs, hands, feet and back, headaches, shoulder pain complaints, hearing loss, and falls prior to the accident. I was not directed to any new evidence or medical opinions that indicated that the accident caused these conditions and that they worsened resulting in her being significantly impeded in her ADLs post-accident.

32The applicant was also referred to Dr. Kimberley Payne, clinical psychologist, for psychological assessment, and in Dr. Payne’s notes, dated January 16, 2019, she rendered the diagnoses of somatic symptom disorder, with predominant pain, moderate; major depressive disorder, moderate; and PTSD with panic attacks. Dr. Payne also noted that the applicant presented with pre-existing history of somatic symptom disorder, generalized anxiety disorder and panic disorder. Dr. Payne recommended a brief course of psychotherapy to consist of a six-month weekly treatment interval, to be done by psychotherapist Ms. Melanie Robarts under the supervision of Dr. Payne, in order to address the applicant’s symptomatology.

33On March 22, 2019, the applicant had her first one-hour psychotherapy session, and this continued until May 8, 2020, with her participating in a total of 18 sessions. The notes from these sessions showed that the applicant learned and was practicing coping skills to deal with her psychological condition with improvements documented. In fact, in the note on March 23, 2020, the applicant reported that the calm place activity that she was doing resulted in a calmer state. Again, on May 8, 2020, she reported that she has been outside more as her physical limitations allowed and that she was busy homeschooling her children. I find Dr. Payne’s reports and notes persuasive because they show that with the appropriate medical treatment and intervention the applicant’s psychological impairment improved and her functional abilities were not significantly impeded.

34In addition, I find Dr. Ross’ method of evaluation and assessment of the applicant under Criterion 8 to be fundamentally flawed and not in alignment with s. 3.1 of the Schedule. The Schedule is clear that in this case, the applicant must prove, that she has a “marked” or class 4 impairment in at least three of the four domains or one extreme or class 5 impairment as outlined in the Guides at Chapter 14 due to a mental or behavioural disorder (emphasis added). First, Dr. Ross diagnosed the applicant with a chronic pain condition due to central sensitization mechanisms and post-concussion syndrome. She then stated in her report that central sensitization chronic pain is not caused by psychological process, but it is a chronic pain condition caused by the brain’s pathological ability to produce an amplified pain response. However, impairments that are neurological in nature, are properly addressed in Chapter 4 of the Guides and not Chapter 14.

35Second, Dr. Ross provided a whole person impairment (WPI) rating for the applicant’s chronic pain condition and stated that this is an important component of her pain experience, and which affects the applicant’s ability to function. A WPI rating is not applicable under Criterion 8 and is not supported in Chapter 14 of the Guides. In addition, Dr. Ross testified that she lumped all the impairments together and rated them all under Criterion 8 because they have an effect on mental and behavioral disorders. Chapter 14 of the Guides does not allow for the lumping of impairments that are not mental disorders. The lumping of impairments is also contrary to the three principles of diagnosis, motivation and assessment that are central to assessing mental impairment as stated in chapter 14 of the Guides.

36Third, when asked about her use of the Guides, Dr. Ross indicated that she used the Guides definitions and testified that the Guides is dated. In addition, when asked whether it was important and useful for the applicant to have done an occupational therapy in-home and situational assessment to assist with the CAT assessment, Dr. Ross testified that it was not necessary. Dr. Ross also stated that she did not explicitly follow Chapter 14 of the Guides to do a CAT assessment of the applicant under Criterion 8. Dr. Ross relied primarily on the self-reporting of the applicant to determine her functional abilities post-accident. Dr. Ross made no reference in her report of any objective findings where the applicant was observed performing certain tasks that could have assisted with assigning impairment ratings under the four domains. For these reasons I assign less weight to the report of Dr. Ross because in my view, according to Chapter 14 of the Guides, I find that Dr. Ross is not familiar with and or choses to ignore the guidelines and approaches of the system within which the evaluation for Criterion 8 is being performed.

37The applicant also argues that she has suffered a deterioration in her medical condition since the January 2022 hearing. However, I was not directed to any medical evidence to support this claim. In fact, the applicant did not produce any updated CNRs from Dr. Robillard, her family physician, after July 2020, from the Elysian Wellness Centre after October 2019 and updated OHIP summary after October 14, 2020. The respondent also urges the Tribunal to make an adverse inference from the applicant failing to provide these necessary records. The respondent argues that the Tribunal must make the inference that the documents would be unfavorable to the applicant and that is why they were not produced. Given the amount of time the applicant had to produce these documents, especially Dr. Robillard’s CNRs, I agree with the respondent that an adverse inference is appropriate in this case since the applicant has confirmed that the updated reports were requested from the different parties.

38Also, contrary to the applicant’s position, post-accident, it would appear little has changed, as the applicant reported that she does most of the cooking in the family and mostly cooks quick meals for her children. She also reported that she takes her dogs out five to six times a day for brief walks. She independently takes her prescribed medication without the prompting of supervision. I am not convinced that the evidence supports the applicant’s position that she is significantly impeded in her ADLs because of the accident.

39Given all of the above, I am not persuaded that the applicant has shown a Class 4 Marked impairment under this domain to such a degree that her impairment levels “significantly impede useful functioning”. I assign more weight to Dr. Robillard’s CNRs and Dr. Payne’s findings and conclusions in her reports as it relates to the psychological contribution to the applicant’s impairments within the activities of daily living domain. These reports indicated that the applicant made significant improvements after treatment in her post-accident psychological impairment. Likewise, I consider all of Dr. Ross’ impairment ratings under the four domains to be flawed for the reasons mentioned above. However, for completeness I shall continue with my analysis under the other domains.

Social Functioning

40The factors to consider under this domain are an individual’s capacity to interact appropriately and communicate effectively with other individuals. It includes the ability to get along with others such as family members, friends, neighbours, grocery clerks, lenders, etc. Impaired social functioning may be demonstrated by history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, social isolation, or similar events or characteristics. An individual’s ability to initiate social contact with others, communicate clearly with others and interact and actively participate in group activities are seen as strengths in social functioning.

41Taking into account the above, in her report dated May 02, 2022, Dr. Ross finds the applicant to have a Class 4 level of impairment under social functioning. Also, in his report dated February 24, 2021, Dr. Aladetoyinbo finds the applicant to have a Class 3 level of impairment under this domain. The testimony of the applicant and her self-reporting do not support a Marked impairment under this domain, and it is consistent with the findings of Dr. Aladetoyinbo.

42I do not agree with Dr. Ross because it is clear from the medical records, the applicant’s testimony and her self-reporting that she had some difficulties with socialization pre-accident and not much appears to have changed since the accident. For example, Dr. Robillard noted that pre-accident the applicant displayed avoidant behaviour, social isolation, diminished interest in usual activities and socializing. The applicant also testified that pre-accident she had three friends and post-accident she now has one friend. She also reported having an excellent relationship with her mother and stepfather and Dr. Aladetoyinbo noted that she communicated clearly and was exceptionally cooperative throughout the entire duration of his evaluation.

43Given the evidence, and the applicant’s testimony and self reporting, I find that the applicant is not significantly impeded in her social functioning as a result of the accident because these issues pre-dated the accident. Having found that the applicant does not have a class 4 impairment in at least two of the four domains, this is enough to find her not to be catastrophically impaired under criterion 8. However, for completeness, I shall continue with the last two domains.

Concentration, Persistence and Pace (CPP)

44The factors to consider under this domain are concentration, persistence and pace (“CPP”) and referred to as “task completion” deals with 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. Deficiencies in CPP are best noted from previous work attempts or from observations in work like 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.

45In her report, Dr. Ross finds the applicant to have a Class 4 or a Marked impairment under this domain. Dr. Ross noted that the two core post-accident diagnoses that affects the applicant’s ability to function in terms of persistence and pace are post concussion syndrome and chronic pain condition due to central sensitization mechanisms. Dr. Ross indicated that these are both brain disorders that affect mental function and behavior. However, impairments associated with brain disorder are dealt with more appropriately in chapter 4 of the Guides and not chapter 14.

46Dr. Aladetoyinbo finds the applicant to have a Class 2 impairment under this domain. He noted that the applicant’s concentration and consistent engagement during the entire duration of the evaluation was an important consideration in his determination. He also indicated that the applicant’s subjective account regarding completion of her ADL tasks indicates that a significant proportion of these tasks are completed independently.

47In my view, the evidence does not support Dr. Ross’ opinion that the applicant has an impairment under this domain that significantly impedes useful functioning. In addition, and as mentioned earlier, Dr. Ross’ evaluation and assessment of the applicant for CAT under Criterion 8 is flawed and not consistent with chapter 14 of the Guides. In her report dated January 07, 2020, Dr. Diana Garcia, neuropsychologist, indicated that the applicant reported academic concerns during elementary and middle school, which may indicate underlying cognitive concerns which pre-date the accident. The applicant also testified that she graduated from an adult high school in 2015 at the age of 31. Against these facts, I find it unlikely that any of applicant’s deficit in CPP is attributable to the accident since her pre-accident history reveals a similar struggle.

48Therefore, any assessment of the applicant under this domain must be done in the context of the applicant’s pre- and post-accident functional abilities. I am not convinced based on the evidence and the testimony and self-reporting of the applicant that there has been a significant change between the applicant’s pre- and post-accident ability to sustain focussed attention long enough to permit the timely completion of common tasks and that this change is a result of the accident. She may be slower in completing certain tasks like doing the laundry, but I am not persuaded that she has an impairment level that significantly impedes useful functioning as a result of the accident.

Adaptation

49The factors to consider under this domain are: deterioration or decompensation in work or work like settings (also referred to as adaptation) refers to repeated failure to adapt to stressful circumstances. Under stressful circumstances an individual may withdraw from the situation or experience exacerbation signs and symptoms of a mental disorder. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks and interacting with supervisors and peers.

50Dr. Ross opines that the applicant has a Class 4 or a Marked impairment under this domain because the injuries caused by the accident have resulted in changes in her brain for a multiple of reasons that now markedly impair her ability to adapt and to obtain and maintain employment. The applicant’s family physician Dr. Robillard had identified that prior to the accident she had difficulties with anxiety, avoidant behaviour and was socially withdrawn. Therefore, any challenge that the applicant may experience with adaptability tasks (even though none was observed and or requested by Dr. Ross), would be consistent with Dr. Robillard’s findings.

51Dr. Aladetoyinbo finds the applicant to have a Class 4 impairment under this domain and noted that she is not currently independent in some of her activities of daily living, which she is able to effectively sustain to yield the required results. However, many of these difficulties were pre-existing as a function of her premorbid pervasive generalized anxiety and panic disorder.

52I am not persuaded by Dr. Ross’ and Dr. Aladetoyinbo’s opinion under this domain. Neither am I convinced that Dr. Ross has applied the appropriate evaluation and assessment according to chapter 14 of the Guide. The applicant’s own reporting to different assessors is that she remains relatively independent with her personal care and that she continues to attend to a number of household chores and responsibility. I am not convinced that the applicant’s response when faced with stressful circumstances is substantially different post-accident than it was pre-accident given the pre-existing medical findings of Dr. Robillard, Dr. Payne and Dr. Garcia.

53As a result of the above, I find that the applicant has not met the test under Criterion 8 that she has three Class 4 or Marked impairments and therefore I find that the applicant is not catastrophically impaired as defined under the Schedule.

ORDER

54The applicant does not meet the definition for a catastrophic impairment.

55The application is dismissed.