Volume. 7 Issue. 7 – March 1, 2023
This week the Tribunal informs as to the nature of conduct that not only deems ACB ‘incurred’, but also creates liability to pay a significant award.
LAT Update – What Difference Did A Year Make?
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
ACB Deemed Incurred Plus 35% Award Levied
Deemed ACB Award Worthy – Injured in an August 2017 MVA, the Applicant Simpson, in 21-000662 v Nordic Insurance,, sought, amongst other things, entitlement to Attendant Care Benefits (ACB), as well as an award.
The first period for which ACB was sought covered January 2018 through to May 2019. Nordic eventually advised Simpson as at February 2021 that they agreed to pay ACB from January 2018 through to September 2019, upon documentation confirming incurred. The ACB had been provided by Simpson’s two daughters, with evidence at the hearing confirming neither has sustained an economic loss as a result of providing care. Accordingly, the Tribunal ruled ACB was not payable. The Tribunal also declined to “deem” the expenses incurred, given Nordic’s eventual approval.
Following an IE with an OT in August 2019 however, Nordic discontinued entitlement to ACB, as the report indicated that Simpson “could perform her personal care tasks with pacing and the use of assistive devices.” Subsequently, Nordic secured a further IE, with a Dr. Choi. This report confirmed that Simpson “presented with pain, decreased mobility, and decreased exertional capabilities. It is opined that the impairments are indefinite; it is difficult to estimate the duration of the impairment given the suboptimal pace of recovery to date.” The Tribunal found that this report did not support a cessation of ACB entitlement. Nordic relied upon a statement by Simpson “that she performs personal care tasks” to support no further ACB entitlement, however the Tribunal was not in agreement.
There was a further November 2021 report from a Dr. Bentley, that Nordic relied upon, where Simpson states that she is independent with “all aspects of personal care”. The Tribunal however noted that this assessor further opined that Simpson “does suffer permanent serious impairments of important physical function, with anticipated permanent partial disability in the domains of housekeeping and pre-accident social activities, and complete disability in the domain of pre-accident household maintenance tasks”.
Nordic also requested the Tribunal to give weight to the inconsistencies between Simpson’s testimony and the surveillance evidence, despite not having questioned Simpson on the alleged inconsistencies. The Tribunal accordingly afforded no weight to the surveillance evidence, given that Simpson was not provided the opportunity to respond to the allegations. This was found to be premised on a clear violation of the rule in Browne v. Dunn, a 1893 case that essentially stands for the proposition that if a party intends to contradict a witness, the witness must be provided the opportunity to explain the purported contradiction.
The Tribunal ultimately found that there was no indication in the adjuster’s log notes as to why this singular OT IE was preferred over the contemporaneous Form 1 and other medical records. An adjuster for Nordic testified that “Due to the passage of time, however, she cannot say what specifically happened in this file…the insurer has an obligation to critically review medical assessments and decide claims in an unbiased manner. In the Tribunal’s view, this obligation is not fulfilled when the insurer cannot show how conflicting information is considered.” As a result, it was “not possible to understand how this decision was made. This lack of transparency makes the decision to deny attendant care benefits to the applicant unreasonable.”
A further lack of transparency was found in regards to a March 2021 report from a Dr. Kekosz, and how this may have been considered by Nordic. The report indicated in part that the MVA had resulted in “a significant impairment of the left shoulder with a loss of mobility and strength”, with this passage being recorded in its entirety in the log notes. However the notes did not evidence how this significant impairment was considered in regards to ACB. Therefore, “it is unknown how, or even if the insurer continued to adjust this previously denied benefit. This also constitutes a lack of transparency.”
Given the foregoing, the Tribunal deemed Simpson to have incurred the ACB expenses from May 30, 2019 through to August 2, 2019. Further, Nordic was found liable to pay an award to Simpson, as they gave more weight to a single IE over the Form 1 from Simpson, with no explanation having been provided as to why. The medical reports and opinions “unanimously agree that the applicant has serious accident-related impairments. Despite this, there is no clear indication that the denied attendant care benefit continued to be adjusted. This conduct is unreasonable and properly described as immoderate, inflexible and imprudent.”
Further, the “unreasonable behaviour of the insurer is rooted in their lack of transparency. In particular, there is no clear indication that the attendant care benefit continued to be adjusted”. Citing the “vulnerability of the insured person, the need for deterrence, and the overall length of delay” as the applicable factors, the Tribunal found an award of 35% of the deemed incurred ACB to be appropriate.
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