V1301 – A Return to Work Does Not Negate an Attendant Care Benefit
The road to recovery following a motor vehicle accident can be long and hard; the disruption to activity and employment can be significant. For those who suffer severe injuries, a return to work can be extremely challenging. When a person succeeds in such a return to work, it can often be at great cost in terms of physical, emotional and cognitive energy.
When a person returns to work, adjusters will often ask whether an attendant care benefit remains relevant to the accident benefits claim. After all, returning to work demonstrates a rather high level of independence and capability. In such cases, adjusters can be quick to arrange insurer examinations to address the continuing benefit and stoppages often follow. Are such stoppages reasonable in all cases? We think not.
We were pleased to recently review the LAT’s decision of J.W. and Security National Insurance Company (Tribunal File Number: 18-008988/AABS). The case related to a gentleman who was injured in 2014. As detailed in the decision, J.W’s injuries included brain injury and fractures to the skull, spine, ribs, leg, and wrist; he was declared as suffering a catastrophic impairment.
Prior to his injury, J.W. worked as a lawyer. His work involved long days and was intellectually challenging. Post-accident, he succeeded in returning to work although he was challenged by ongoing issues related to attention, fatigue, disorganization, forgetfulness and irritability. Information on file confirmed his need to have cues, to be redirected, and to modify tasks.
J.W. sought ongoing access to an attendant care benefit at an entitlement rate of $803.99 per month. The care was recommended in relation to evening meal preparation, emotional support, cues, and reminders. Security National subsequently denied the attendant care benefit given its reliance upon its insurer examination reports.
In the LAT’s decision, Adjudicator Brian Norris accepted J.W.’s evidence of impairment over that presented by the insurer. In speaking to each of the insurer examination reports, he highlighted concerns including that they did not adequately evaluate the cognitive impairment, did not test for issues such as forgetfulness, disorganization and irritability, and did not properly consider the reduced cognitive and emotional capacity to tolerate daily work demands. When impairment was noted, the Adjudicator recognized the examiner did not give weight to the slowed work pace during cognitive testing, the poor performance during distraction testing, and the need for cuing.
In confirming J.W.’s entitlement to attendant care, Adjudicator Norris stated as follows:
“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.”
Ultimately, this decision reminds us that we must consider a person holistically. We encourage that physical, emotional, and cognitive abilities, and the depletion thereof due to other activities, must be considered when assessing attendant care. Clearly, an ability to engage in one activity does not necessarily equate to ability in all activities.
We congratulate our very own associate lawyer William Keele, who brought this important case to the LAT during his time working with our friends at McLeish Orlando Lawyers LLP, for achieving this excellent outcome.
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