V701 – LAT Awards Full-Time Attendant Care for Psychiatric Impairment
We are pleased to report on a decision released in relation to one of our present clients. This hearing, 17-005604, B.D. and Wawanesa Mutual Insurance Company, was led by our lawyers Robert Durante and Erin Murray. The dispute related to competing assessments of attendant care needs in the context of a client who suffers from psychiatric impairments.
B.D. was injured in a car accident in January 2014. Both parties agree that she suffers from Post-Traumatic Stress Disorder, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Somatic Symptom Disorder. She is confirmed as suffering Catastrophic Impairment due to mental or behavioural disorder.
There were several Form 1’s completed to assess attendant care entitlement through the course of the claim. Over time, the treating therapists consistently found entitlement at a much higher rate than that determined at insurer examinations. Most recently, the treating therapist’s Form 1 tallied entitlement at $5,489.14 per month while the insurer examination found the benefit limited to just $1,174.53.
B.D.’s impairments are such that she is easily overwhelmed by noise, bright lights and sounds. Her sensitivity to smell is so severe that cooking of meals is completed outside of the home. She feels vulnerable when she is outside of her home and when around other people. She has episodes of panic and she has meltdowns with yelling and screaming at times. Of great significance, she dreads the night time and finds it challenging and difficult, because everything intensifies at night: her anxiety, her symptoms and her pain. She wakes up multiple times at night due to nightmares and she requires help to be settled back down.
B.D.’s attendant care providers are N.G. and B.B., these are her boyfriend and her mother. Both providers gave evidence at the hearing. In combination, they provide approximately 140-hours per week of attendant care support. Notably, B.D.’s treating psychotherapist, Mr. Allan Walton, confirmed his opinion that if this level of care were not provided, then B.D. would almost need to be committed, because she could not function.
In contrast, the insurer’s examiners suggested that B.D. should receive just two hours per day of supervisory care. The insurer engaged two occupational therapists, Linda Cottrell and Kathryn Blaney, and a psychiatrist, Dr. Uri Wolf, to perform the IEs. All three testified before the LAT. Ms Cottrell testified at the hearing that she recommended 120 minutes of supervisory attendant care, because she felt if B.D. had a bad dream or nightmare, or if she required support, then she could pick up the phone and call someone. She felt that B.D. does not require an attendant to be physically present continuously because the needs are intermittent and might not arise on a daily basis.
In rendering her decision, Adjudicator Anna Truong found as follows:
I preferred the evidence of Mr. Walton and placed more weight on it than I did on Dr. Wolf. Dr. Wolf does not adequately explain why exactly 120 minutes of supervisory attendant care may be medically required when he initially testified he would not recommend any supervisory attendant care at all. Furthermore, Dr. Wolf’s reports are lacking in details: they provide the reader with the diagnoses and refer them to the OT reports for further detail.
I preferred the evidence of Mr. Walton, because he is the Applicant’s treating Psychotherapist and he has been following her condition for four years. He knows her and her condition better than Dr. Wolf who only saw her twice for one hour assessments. Mr. Walton’s and Dr. Philip’s reports were more thorough and contained interviews from N.G. and B.B. Family interviews are a valuable source of information, especially for patients suffering from psychiatric disorders. It is even more valuable in this case, because the family members are the attendant care providers providing around the clock care. No one would know the Applicant’s condition better than them. Furthermore, in addition to treating the Applicant, Mr. Walton also treated N.G., so he would get a different perspective on the Applicant’s behaviour and her interactions with others.
The Applicant’s testimony as well as those from her mother and boyfriend, in addition to Mr. Walton and Dr. Miller’s reports, combined with the Applicant’s presentation at the hearing, paints a picture of a woman with severe psychiatric impairments whose mood is unpredictable due to her anxiety and depression. The Applicant requires prompting to eat and get out of bed on a daily basis. She also requires assistance in managing and driving to her appointments on time. Her meltdowns and nightmares are disruptive and unpredictable.
While Ms. Cottrell asserts the Applicant can call someone in these situations, I cannot see how someone with the Applicant’s psychiatric impairments could control herself effectively in order to call for help over the phone, especially if the Applicant wakes up in the middle of the night in a panicked state afraid she is going to die. If the Applicant were able to control her psychiatric state so well, she would not require supervisory attendant care at all. Furthermore, N.G., B.B., Mr. Walton and even the Applicant all agree, when the Applicant experiences these episodes, speaking to her does not help. Therefore, Ms. Cottrell’s idea of using the phone to call someone would not be effective during her night episodes.
It is clear from the evidence the Applicant has extensive psychiatric impairments, which impact her functioning and ability to adapt to her environment. In fact, her psychological diagnoses support this. From immediately after the accident, the Applicant has been provided with around the clock attendant care by N.G. and B.B. Even with their care and support, the Applicant is still struggling. Everyone familiar with the extent of her conditions and the daily impacts of it, agree if the Applicant were not provided with around the clock supervisory attendant care, her condition would deteriorate. I agree.
Weighing the evidence as a whole, I find the Applicant requires around the clock supervisory attendant care as a result of her psychiatric impairments.
This decision is an outstanding validation that those with severe psychiatric impairment can and should receive around-the-clock care for supervisory purposes when necessary. We are thankful to the dedicated group of individuals who have supported B.D. over the years as including her family, care providers, and medical and rehabilitation providers.
17-005604, B.D. and Wawanesa Mutual Insurance Company