Volume. 6 Issue. 13 – April 6, 2022
This week we examine two cases, the first a CAT case that explores the interplay between vocational and avocational pursuits in considering whether an applicant has sustained a Class 4 Marked impairment in the domain of Adaptation.
In the second, the Tribunal details the peril faced by an insurer in having failed to revisit previously denied treatment plans following a MIG removal.
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Teacher Determined as CAT Despite Numerous Work Returns
NEB CAT Despite Numerous Modified Work Returns – In Powell v Aviva (19-012928), Powell injured in a February 2015 accident sought a CAT determination despite having returned to work as a teacher on a number of occasions post accident.
The work returns were all premised on modified hours/duties and were of relatively short duration. Aviva suggested Powell was exaggerating her level of impairment, had been denied LTD on two occasions, had never received negative performance reviews and had been able to return to work at a minimum of part time and was able to increase her income after the accident.
Aviva’s expert concluded that “at most, there appears to have been an initial temporary exacerbation of the pre-existing anxiety as a result of the subject accident ” This though, was found to “wholly ignore the reams of medical evidence of the applicant’s psychological and cognitive issues that are well documented.”
The Tribunal also pointed to a “critical error” on the part of the assessor, who during her testimony she “repeatedly (stated) in her testimony that because the applicant was not precluded from useful functioning (class 5), she had a class 3 impairment or moderate impairment.” Put another way, this “suggests that a person who is not precluded from useful functioning (class 5) must necessarily mean he or she is moderately impaired (class 3) or better; however, such evidence fails to account for a marked impairment (class 4).”
The Tribunal however found that the “pattern that emerged was that the applicant was able to resume work only on a limited basis with significant support for a limited period of time, and at the expense of all of her other activities of daily living. She would repeatedly push herself to increase her hours and job duties before regressing and having to take time off again. The applicant experienced a progressive decline in her ability to maintain her pre-accident independence in all areas of daily living…”. Therefore, “the evidence is largely consistent that the applicant’s attempts to return to full-time work came at the expense of all her other activities.”
One of Powell’s assessors “noted that it appeared that the applicant applied all of her energy to her job as a teacher, resulting in no residual ability to engage in self care or leisure tasks, taking care of her home, or maintaining basic hygiene”. Another opined that “through a “maladaptive coping strategy,” the applicant avoids stress and pain escalation to reduce the impact of her symptoms at the sacrifice of her quality of life and engagement in activities that were previously enjoyable. The applicant found it difficult to balance the various aspects of her life.” The evidence pointed to Powell having “demonstrated a substantial inability to engage in the meaningful roles and responsibilities of her normal life.” Therefore, the evidence supported a marked (class 4) impairment with respect to Adaptation.
Insurer’s Failure to Revisit Previously Denied Plans Proves Costly
Obligation to Revisit Previously Denied Treatment Plans – In Yang v Dominion (20-008471 v Dominion), the Tribunal found the Applicant Yang entitled to three treatment plans for physical therapy as Dominion was ultimately found not to have provided medical and other reasons for the denials of same. Dominion had denied the three plans because there was no more funding left under the MIG limits. However, Dominion had subsequently removed Yang from the MIG based upon psychological injuries. Dominion contended that as a result it had properly denied the physical plans. The Tribunal noted that once the reason (MIG limits exhausted) was no longer true, they had “an obligation to re-evaluate the reasonableness and necessity of the treatment plans previously denied because now the applicant has access to greater benefit limits.”
This was said to entail the providing of medical reasons and other reasons for the denial of the treatment plan as per section 38(8) of the Schedule. Further, the “Schedule does not differentiate between the reasons why someone is removed from the MIG and the treatment they could receive. Once the applicant is removed, all treatment plans are subject to the test of being reasonable and necessary.”
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