THE LICENCE APPEAL TRIBUNAL:- INDUSTRY TRENDS AND IMPACTS TO PROFESSIONALS

THE LICENCE APPEAL TRIBUNAL:
  -- INDUSTRY TRENDS AND IMPACTS TO PROFESSIONALS --

Trends at the LAT

     • LAT has been in effect since April 2016

     • 2,557 LAT decisions posted to end March

     • Applications far outpace decisions

     • Volume driven by inconsistencies?

     • Reconsiderations heard by same adjudicator;
       success rate just 11%

                                                     Source: The 86% Solution - inHEALTH

Challenges at the LAT

     • Timelines for disputes to be heard

     • Variability in timing of decision release

     • Adjudicators aren’t bound to past case law or even to LAT decisions

     • Special awards are very rare

     • Procedural intensity

     • Absence of costs awards

Why Must You Care?

The LAT is Painful for our Clients

      • Delays and denials equate to…

                Client reactions: Stress, defeat, anger, confusion, insult, loss, etc.

                                      Delays in access to care

                                         Financial hardship

                                         Caregiver burnout

                    Challenges for treatment providers (protected accounts)

But also because…

Definition of an Accident
                            -- Always be Aware --

“Accident” – an incident in which the use or operation of an automobile directly
 causes an impairment or directly causes damage to any prescription eyewear,
      denture, hearing aid, prosthesis or other medical or dental device.

Definition of an Accident
                                -- Relevant Decisions --

• House damaged by vehicle, claimant injured due to fall through damaged deck
   – (P.H. and Aviva Insurance Company of Canada, 18-010205/AABS)

• Trip and fall into a parked motorcycle, SCI results
   - (D.S. and TD Insurance Meloche Monnex, 16-000131/AABS)

• Child traumatized when left behind on a bus, forgotten by driver
   - (Applicant and Aviva, 16-00218/AABS)

• Driver dies shortly after accident, fatal arrhythmia triggered by stress of MVA
   – (R.D. and Wawanesa Insurance, 16-001535/AABS)

Definition of an Accident
                                     -- Relevant Decisions --

  • Injury due to car surfing
       – (I.C. and Intact Insurance Company, 16-003163/AABS)

  • Rollerblader falls due to belief he was about to be hit – no actual impact
       - (N.P. and Motor Vehicle Accident Claims Fund, 17-005135/AAB)

  • Fall while cleaning snow off vehicle
       - (G.R. and Economical Mutual Insurance Company, 18-010779/AABS)

… and let’s not forget about snowmobiles, ATV’s, dirt bikes, scooters, tractors, assaults, public transit …

Katelyn Jolicoeur and RBC Insurance, 19-009997/AABS
                      -- Head Injuries and the MIG --

• Case facts:

   • MVA June 2017 – struck by a left turning vehicle, sent crashing into a pole

   • She hit her head on the window

   • Transported to hospital – emergency record confirmed “head injury”

   • RBC took the position her injuries were predominantly minor and held her
     to treatment within the MIG

   • Post-concussive symptoms persisted

Katelyn Jolicoeur and RBC Insurance, 19-009997/AABS
                       -- Head Injuries and the MIG --

• Recall:

    “minor injury” means one or more of a sprain, strain, whiplash associated
disorder, contusion, abrasion, laceration or subluxation and includes any clinically
                      associated sequelae to such an injury;

• Per Vice-Chair Theresa McGee:

    “As a result of the accident, K.J. sustained a head injury, which is not a minor
                       injury. As such, the MIG does not apply. “

[P.S.] and Wawanesa Mutual Insurance Company, 19-003983/AABS
                       -- Concussion and the MIG --

• In case there was any doubt, concussions are head injuries too…

   a) He was diagnosed with a concussion;

   b) He demonstrated symptoms of concussive syndrome…;

   c) After the accident, he had on-going headaches, neck and back pain,
      including up to 10 months after the accident…;

   d) Finally, none of these conditions are included in the definition of “minor
      injuries” as set out in the Schedule.

L.D. and Certas Home and Auto Insurance Company, 19-001472/AABS
                             -- Chronic Pain and MIG --

   • The adjudicator relied on a chronic pain assessment and CNR’s from family
     physician and treating clinic.

   • In his decision, Adjudicator Norris states:

“Chronic pain syndrome and psychological injuries are excluded from the minor injury
                    definition and the $3,500.00 finding limit. “

L.D. and Certas Home and Auto Insurance Company, 19-001472/AABS
                           -- Chronic Pain and MIG --

 • Adjudicator Norris also reflects on MHM and Aviva, 17-007825 which discussed
   the usefulness of AMA Guides for diagnosis of chronic pain – noting it to be “an
   excellent guideline but … not the only standard in which one can be diagnosed
   with a chronic pain condition.”

 • The Guide states at least three of six criteria must be met to confirm a
   diagnosis

L.D. and Certas Home and Auto Insurance Company, 19-001472/AABS
                                 -- Chronic Pain and MIG --

1. Use of prescription drugs beyond the recommended duration and/or abuse of or
   dependence on prescription drugs or other substances;
2. Excessive dependence on health care providers, spouse, or family;
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity
   due to pain;
4. Withdrawal from social milieu, including work, recreation, or other social contracts;
5. Failure to restore pre-injury function after a period of disability, such that the physical
   capacity is insufficient to pursue work, family or recreational needs; and
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-
   avoidance, depression, or nonorganic illness behaviors.

Document. Document. Document

J.W. vs. Security National Insurance, 2020 ONLAT 18-008988/AABS
          -- A Return to Work Does Not Negate Attendant Care Claims --

 • MVA 2014; brain injury, fractures to the skull, spine, ribs, leg, and wrist; a
   catastrophic impairment

 • Prior to his injury, J.W. worked as a lawyer

 • Upon his return to work, he struggled with attention, fatigue, disorganization,
   forgetfulness and irritability; needs included cuing, redirection and
   modification of tasks

 • AC dispute - $803.99 per month for evening meal preparation, emotional
   support, cues, and reminders

J.W. vs. Security National Insurance, 2020 ONLAT 18-008988/AABS
        -- A Return to Work Does Not Negate Attendant Care Claims --

 • Adjudicator Brian Norris noted concern with the IE which:

    o Did not adequately evaluate the cognitive impairment

    o Did not test for issues such as forgetfulness, disorganization and irritability

    o Did not properly consider the reduced cognitive and emotional capacity to
      tolerate daily work demands

    o Did not give weight to the slowed work pace during cognitive testing, the
      poor performance during distraction testing, and the need for cuing

J.W. vs. Security National Insurance, 2020 ONLAT 18-008988/AABS
         -- A Return to Work Does Not Negate Attendant Care Claims --

    “The optics of this matter may seem unusual; here, the applicant experienced
    catastrophic cognitive injuries and claims entitlement to ACBs, but has since
    returned to an intellectually challenging vocation which requires long work
    days. On its face, that does not seem correct. However, upon review of the
    evidence, I conclude he experiences notable fatigue, which is affected by his
    return to work as a litigation lawyer. I find he suffered a traumatic brain injury
    and numerous serious injuries as a result of the accident and these injuries
    cause the applicant to require assistance as a result of fatigue, forgetfulness,
    and irritability.”

Document. Document. Document

M.A. vs. Unifund Assurance Company, 2020 ONLAT 19-000209/AABS
                -- Real World Considerations and IRB Stoppages --

  • M.A. worked pre-accident as a Cleaner for a coffee franchise

  • Insurer stopped the benefit after a year

  • Per Insurer Examination:

     “Due to her deconditioning, she would benefit from performing her pre-
     accident employment tasks on a flexible schedule, utilizing pacing by sitting,
     standing, and taking breaks at the claimant’s own discretion.”

M.A. vs. Unifund Assurance Company, 2020 ONLAT 19-000209/AABS
       -- Real World Considerations and IRB Stoppages – Pre-104 Weeks --

  • Per Adjudicator Avvy Go:

     “It is not reasonable to expect in a real world setting, that someone who
     works as a cleaner in a [coffee shop], could negotiate with her employer, such
     favourable terms of working conditions as to allow her to complete her tasks
     “on a flexible schedule, utilizing pacing by sitting, standing, and taking breaks
     at the claimant’s own discretion.” To find otherwise is to ignore the reality
     facing employees working in low-waged precarious jobs where they often lack
     the power to negotiate favourable working conditions.”

Document. Document. Document

In Other News
                      -- Additional Decisions for Awareness --

• Insurers are not required to pay approved treatment plans beyond the coverage
  limit
   – (P.K. and Co-Operators, 19-004126/AABS)

• Cap of $2,000 is applicable to housing assessments
   – (R.J. and Certas Direct Insurance Company, 19-009603/AABS)

• Treatment plans must be submitted in advance of costs being incurred
   – (K.R. and Certas Direct Insurance Company, 19-003237/AABS)

Questions?
          Brian Cameron, Partner
       bcameron@oatleyvigmond.com

Michelle Baumann, Accident Benefits Specialist
      mbaumann@oatleyvigmond.com

               1-866-269-2481