The assessment team assembled by Independent Claims Evaluators Inc. consisted of Dr. Michael Lacerte, a specialist in physical medicine and rehabilitation, Dr. Paul Cooper, a neurologist, and Ms. Moira Hunter, an Occupational Therapist. There was no psychiatrist. As well, there is no dispute that, of this team, only Ms. Hunter met with and assessed Mr. Fisher.
A second, perhaps even more serious problem with the approach taken by the DAC is their failure to conduct an in-person assessment of Mr. Fisher. While the protocol clearly allowed a record review only where the records clearly supported a finding of catastrophic impairment, and the DAC so found, a negative finding demanded an in-person assessment.
While Mr. Kirby pointed to the participation of the occupational therapist as satisfying any mandate for an in-person assessment, I do not agree that the assessment by one member of the DAC team, who is not a mandatory discipline for such an examination, constituted the necessary in-person examination for the purposes of the guidelines. [See note 5 below.]
Note 5: I also accept that Ms. Hunter’s report appears to reach conclusions significantly at odds with the conclusions of other examiners without accounting for such differences. However, given my findings as to the technical shortcomings of the DAC, I need make no specific finding as to the actual conclusions made by any of the assessors.
Having found that the record review would likely lead to a finding of not catastrophically impaired, the assessment team should have moved on to an in-person assessment. Apart from sending Ms. Hunter to Thunder Bay, it did not take this step. Indeed, its own characterization of the assessment was as a “paper review.”
Consequently, whatever the conclusion reached by the DAC team assigned to Mr. Fisher’s case, the process of assessment was doubly flawed.
These flaws in Mr. Fisher’s case are not inconsequential. The failure of the DAC to have the capacity to properly evaluate Mr. Fisher’s claimed cognitive, behavioural and psychological deficits, meant simply that he could not get either a fair or adequate assessment, something to which he had an absolute right under the Schedule.