V601 – The Fight for Rights of Elderly Clients

With advancing age, we often see an increased incidence of conditions that can severely compromise a person’s well-being and independence. Factors such as chronic pain, serious health conditions, medication side-effects, reduced mobility, and emotional and cognitive decline can dramatically impact a person’s lifestyle and care needs.

With their often complex health histories, the elderly population can be quite vulnerable to injury when involved in motor vehicle accidents. To further complicate matters, such individuals are often also quite vulnerable to the claims process itself; insurers can be quick to assume that impairments are not accident related and that post-accident declines are simply as a result of the normal aging process. We often bear witness to elderly clients being subjected to early denials and pervasive claim difficulties.

This brings us to the recent LAT decision of 16-004622, A.K and Aviva Insurance Canada. At the time of the LAT’s hearing, this applicant was 82 years of age. The case went to hearing given Aviva’s denials of chiropractic, physiotherapy and massage therapy services. Also in dispute was a requested orthopaedic assessment.

The applicant’s medical history was largely undisputed. A.K.’s pre-existing conditions included chronic neck and low back pain for which he visited his family doctor frequently and for which referral to rheumatologist had been made on more than one occasion. He also suffered from high cholesterol and hypertension prior to his accident.

The applicant’s position was that the accident aggravated his pre-existing arthritic and chronic back and neck issues; he reported an experience of chronic pain post-accident. The records supported the applicant’s report of pain, headache, sleep disruption, dizziness, and emotional compromise. Records also demonstrated the family doctor’s support of ongoing physical treatments, given that they made a positive difference for his patient. Consultation with an orthopaedic surgeon led to diagnosis of chronic pain syndrome and further recommendation for continued therapy.

In despite of the above, the insurer responded to the treatment and assessment requests with denials and subjected the applicant to insurer examination. The insurer examiner confirmed opinion that the applicant suffered uncomplicated soft tissue injuries; he concluded that the applicant’s disabilities and impairments pre-dated the accident. The examiner detailed that the applicant had received treatments for over 6-months already and took note of the applicant’s report of only 10% improvement therein. The examiner concluded that further facility based treatment was therefore not reasonable and necessary.

In considering the disputed physical treatments, and the orthopaedic assessment, Adjudicator Anwar sided with the applicant. His comments included the following:

“I find that the disputed treatment plan is reasonable and necessary. The treatment plan stated that the applicant had been making slow progress with facility-based treatment and would benefit from continued treatment sessions outlined in the treatment plan. I accept this prognosis. The proposed treatment is related to accident-related impairments, the costs associated with the services are reasonable and the treatment plan sets out appropriate goals, such as pain reduction and increased range of motion, reasonable ways to monitor progress and identifies barriers to recovery. I reject Dr. Jugnundan’s position that the applicant will not benefit from continued facility-based treatment because his injuries are soft-tissue in nature and he has received treatment for over six months. In reaching this conclusion, Dr. Jugnundan fails to consider the applicant’s prior medical history, particularly his pre-existing chronic back and neck pain and arthritis, as well as his age. He notes that the applicant complained of pain and discomfort in his back and right knee while doing range of motion testing but fails to account for these complaints or provide any explanation in his conclusion. The accident aggravated the applicant’s pre-existing chronic pain in his back and neck. The applicant was also diagnosed with the [chronic pain] syndrome in a subsequent examination by Dr. Benmoftah, which I accept, and is a vital piece of information. Under these circumstances, I do not accept that home-based exercises are an appropriate alternative. Hence, I find the treatment plan reasonable and necessary.”

Notably, the Adjudicator also dismissed the surveillance as put forward by Aviva. In dismissing the surveillance, the Adjudicator stated:

“I find the surveillance report to be unpersuasive. The report depicted the applicant relied on a cane to navigate through most of his daily activities, if not all, which does reflect functional limitations. In the instance where he did walk without the cane, he did so with a slight limp. None of the medical documents claim that the applicant is completely immobile. Hence, I do not find the contents of the report to discredit the applicant. Furthermore, the activities undertaken by the applicant and outlined in the report do not, on a balance of probabilities, show that he does not suffer from pain, limitations or chronic pain syndrome, or has completely returned to all of his activities of daily living. In fact, the report itself recommends that additional surveillance be completed at two other occasions to further observe the applicant’s social activity.”

It is a shame that this applicant was delayed in accessing reasonable and necessary care. It is further disappointing that he was subjected to the inherent stresses of insurer examination, surveillance, and the appeal process. Perhaps the saving grace is that this decision is both considerate and fair in nature. We recognize that the involved medical, rehabilitation and legal professionals ought to be pleased with the outcome of their efforts and advocacy.

Official Decision:

16-004622, A.K. and Aviva Insurance Canada

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