Volume. 6 Issue. 12 – March 30, 2022
This week a couple of interesting cases. The first case, where the Tribunal addressed an NEB entitlement for a 12 year old at the time, arising from a 2013 accident with evolving normal life activities. Ultimately finding the entitlement ceasing six years after the accident. The Tribunal also dealt with the NEB entitlement arising from a 2nd accident in 2018 under the modified NEB entitlement.
The second case we review a chronic pain case that awarded a 14k chronic pain treatment following the criteria found in the AMA Guides.
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Tribunal Finds NEB Entitlement Ceases Six Years Post MVA
NEB Entitlement Ceases Six Years Post Accident – In Brenner v TD Insurance (20-006389), the Applicant was injured in a 2013 accident when she was 12 years old. TD initiated NEB payments in May 2017 once she turned 16, at the rate of $320 per week. TD continued NEB payments through to July 2018, when entitlement was terminated on the basis of a series of IE’s.
In the interim, Brenner was involved in a May 31, 2018 accident, and TD began paying NEB at the rate of $185 for this 2nd accident, paying same through to the allowable 104 weeks post accident. Brenner submitted that it was “strategic and beneficial for TD to pay her NEBs in this way under the second accident because, pursuant to the version of the Schedule in place at that time, payment would be $185 per week and would be capped at two years.” She further submitted there to be no evidence to support entitlement from the “minor” 2nd accident.
TD asserted that Brenner’s condition had improved considerably by 2018, and relied upon their three IEs, each finding Brenner did not meet the NEB entitlement test from the 1st accident. The Tribunal however was “unable to accept the conclusions of the 2018 s. 44 IE reports. The reports fail to explain how the assessors determined that the applicant did not meet the NEB test despite having the same treatment team and many of the same limitations over the previous four years.” The Tribunal also agreed with Brenner that she was unlikely to qualify for NEB as a result of the 2nd accident. Further, for TD to “attribute her impairments, which remained largely the same, solely to the minor second accident calls into question TD’s decision to terminate payment for NEBs for the first accident and begin remitting NEB payments for the second accident.”
Therefore, the Tribunal agreed with the Applicant “that by conceding that NEBs were payable, the only logical option was that NEBs were payable due to the first accident.” The medical evidence “demonstrates that the applicant’s symptoms and impairments were continuous up to and following TD’s 2018 denial pertaining to the first accident.” While accepting there to have been some improvement in 2018 through to 2019, the evidence did not support termination at the time TD did, and the “stoppage does not appear to be based on any medical evidence.” However, the Tribunal then indicated that the records show that beginning in 2019, “her interests have changed, and it is likely no longer useful to compare her current function or interests to those of her 12-year-old self.”
It was noted that Brenner has been “taking online courses to prepare for her college nursing program and is doing well, she takes dancing classes several times per week, has taken up snowboarding, regularly practices yoga, and has returned to church activities”. Submissions from Brenner referred to her activities as a 12 year old, despite her having no interest in them anymore. It was found to be “evident that by the end of 2019 she had learned how to cope with these headaches and is functioning quite well with her approach and strategies of pacing.” Additionally, it was “difficult to find that a person who is able to dance, snowboard and participate in online schooling is a person who has a complete inability to carry on a normal life.”
Concluding, “it cannot be said that she has a complete inability to carry on a normal life at this stage post-accident. Rather, after years of treatment, investigation and trial and error on coping strategies, it seems that the applicant has adapted to her impairments and is functioning rather well with a full schedule.” Accordingly. Brenner was found entitled to NEB at the rate of $320 from July 4, 2018 through to October 31, 2019.
Tribunal Awards $14K Chronic Pain Program
$14K Chronic Pain Program Awarded – In Persad v Aviva,19-010452, Persad, injured in a September 2017 accident, sought and was ultimately awarded a $14,000 chronic pain program, requested in December 2019.
Aviva had partially approved the chronic pain treatment program in the amount of $2,329.08 for eight, one-hour sessions of psychological treatment following a s. 44 IE with a psychologist. They also relied upon a GP IE from Dr. Ko indicating Persad had reached maximum medical recovery and further submitted that Persad had failed to address the six criteria from the AMA Guides regarding chronic pain. Persad relied upon the chronic pain report of Dr. Brown in conjunction with the CNR of the GP.
The Tribunal found that Aviva’s position regarding the AMA Guides was contradicted by the evidence, finding that Persad in fact met several of the criteria. Attendances with the GP, while not “excessive”, were found “compelling” indicators of a consistency of pain complaints. It was also noted that Persad as per the OCF3 met the test for entitlement to NEB, and the “Tribunal has accepted that a complete inability results in an avoidance of physical activity due to pain.” Given that Aviva accepted that Persad suffered from a complete inability, “it stands to reason that he would have a withdrawal from work and that he has not reached a point of restoration of pre-accident function to pursue work.” Finally, Aviva’s own IE supported the existence of a psychological impairment.
It was also found that Aviva erroneously contended that Dr. Brown both failed to address each AMA criteria and “solely relied on G.P.’s subjective complaints and the duration of the complaints.” The Tribunal then noted “While on the topic of failures, I question the strength of Dr. Ko’s report, as he did not address Dr. Brown’s report, and in turn did not provide any reasons or objective opinion as to why he did not agree with the report, the diagnosis or the recommended treatment.” In addition, the IE “failed to properly consider the relevant evidence that was relied on that confirmed for Aviva that (Persad) suffers a complete inability to carry on a normal life.”
In contrast, the report of Dr. Brown performed a series of tests, performed a physical examination and reviewed the available medical evidence. Ultimately, “As a chronic pain specialist, I afford more weight to Dr. Brown’s report over that of general physician, Dr. Ko. Dr. Brown is specifically trained, skilled and practiced in the field of chronic pain…” Therefore, the chronic pain program was found to be reasonable and necessary.
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