January 29, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v RBC LAT 16-004500
Decision Date: December 6, 2017
Heard Before: Adjudicator Brian Norris
ENTITLEMENT TO NEB AND BENEFITS
The applicant was injured in a car accident on December 3, 2010 and sought benefits RBC. When RBC refused to pay for certain medical benefits the applicant applied to the LAT.
- Is the applicant entitled to receive a non-earner benefit (NEB) in the amount of $185.00 per week for the time period from December 21, 2014 to present and ongoing?
- Is the applicant entitled to receive a medical benefit in the amount of $731.25 ($1,762.26 less $1,031.01 approved) for occupational therapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated April 1, 2015?
- Is the applicant entitled to receive a medical benefit in the amount of $1,608.06 ($2,908.06 less $1,300.00 approved) for occupational therapy services pursuant to a Treatment and Assessment Plan (OCF-18) dated February 13, 2015?
- Is the applicant entitled to receive a rehabilitation benefit in the amount of $5,753.62 for social rehabilitation counselling pursuant to a Treatment and Assessment Plan (OCF-18) dated February 25, 2015?
- Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,079.15 for vocational training pursuant to a Treatment and Assessment Plan (OCF-18) dated September 16, 2016?
- The applicant is not entitled to a non-earner benefit.
- The applicant is not entitled to the medical or rehabilitation benefits under the treatment plans dated February 13, 2015, February 25, 2015, and September 16, 2016 because the associated expenses are not reasonable and necessary.
- The applicant is entitled to receive the balance of $731.25 for a medical benefit for occuptional therapy services in the treatment plan dated April 1, 2015 because the expenses are reasonable and necessary.
The applicant was a rear seat passenger in a car which was rear-ended by another car, pushed into the oncoming traffic lane, and struck by an oncoming van. The applicant suffered from a dislocated hip with superior displacement of the left femur, chest and knee pain, and was hospitalized for 2 days as a result of the collisions.
The Arbitrator reviewed the law and the evidence and noted that pursuant to section 12 of the Schedule, an insured person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for a NEB. The test for a NEB is outlined in Heath v. Economical Mutual Insurance Company: “… the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.”. Heath also holds that, in order to qualify for a NEB, the changes in an insured’s life must be of such significance to continuously prevent them from engaging in substantially all activities in which they engaged before the accident.
The position of the applicant is that the injuries suffered as a result of the accident completely impair their ability to carry on a normal life. The applicant relies on a variety of evidence from three orthopaedic surgeons and a psychologist.
The disability certificate indicates the applicant qualifies for non-earner benefits. However, the reports of orthopaedic surgeons do not confirm the applicant qualifies for non-earner benefits. The reports focus on the applicant’s injuries and complaints. Specifically, one report notes that the applicant does have some limitations, but the limitations are not enough to put formal restrictions on the applicant.
RBC submits that the applicant has failed to meet their evidentiary burden by not providing sufficient information to determine a substantial change in pre-accident activities and life circumstances as a result of the accident. RBC refers to decisions by Adjudicators Sewrattan and Truong to show that it is the applicant’s obligation to provide detailed accounts and evidence that they qualify for a non-earner benefit
RBC relies on IEs prepared by a psychologist, an in-home OT, and a multidisciplinary assessment report prepared by an orthopaedic surgeon and a psychologist.
The Arbitrator reviewed the medical evidence and determined considering all the evidence presented and upon review of the subjective changes in the applicant’s life pre and post-accident, the applicant has not established that they suffer a complete inability to carry on a normal life.
ENTITLEMENT TO MEDICAL AND REHABILITATION BENEFITS
In order to determine if a medical or rehabilitation benefit is reasonable and necessary, the applicant must show adequate medical reasons supporting the plan and the effectiveness of the treatment.
The Arbitrator reviewed the treatment plans, and noted that although not expressly stated in the submissions, it is clear that obtaining a GED is one of the applicant’s goals for recovery and reintegration into the community. The Arbitrator agreed that obtaining a GED would benefit the applicant. However, RBC does not have an obligation to ensure that the applicant is successful in obtaining a GED. RBC’s obligation is to return the applicant to their pre-accident status. At the time of the accident, the applicant had stopped attending high school and it is unknown if or when the applicant would have returned to and completed high school, or if the accident impacted the applicant’s plans to do so.
The applicant’s position on the treatment plans is that they are critical to the applicant’s ongoing recovery and the denial of treatment has negatively impacted the applicant. The applicant submits that they are suffering from chronic pain as a result of the accident and that they are limited by psycho-emotional concerns with difficulty focusing on completing high school credits due to stress and anxiety.
The Arbitrator found the applicant’s submissions do not clearly address the impairments outlined in the proposed treatment plans. Specifically, there is a lack of evidence outlining any cognitive impairment, which is the core of the bulk of the proposed treatment.
Upon review of the evidence and submissions of the parties the Arbitrator found that the treatment plan dated April 1, 2015 is reasonable and necessary. The plans dated February 13, 2015, February 25, 2015, and September 16, 2016 are neither reasonable nor necessary.
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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.