Applicant Meets Burden of Proof for Benefits- Applicant and Echelon LAT 16-003221

July 18, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Echelon LAT 16-003221

Date of Decision: June 20, 2017
Heard Before: Adjudicator Susan Mather

Entitlement to Benefits: Applicant meets the burden of proof for her entitlement to benefits; Insurer does not provide sufficient evidence to the contrary

The applicant was in a car accident on March 14, 2010, when the car she was a front seat passenger in was rear-ended. The applicant and her husband were both injured in the accident and their two-year-old daughter sustained fatal injuries.  In June 2015, the applicant was found to be catastrophically impaired as a result of the accident due to the severity of the mental impairments she sustained. In June 2014, the applicant sought a rehabilitation benefit pursuant the SABS.  At the time of the application the applicant was 29 years old with two young children at home.

The applicant was seeking to extend the services of an occupational therapist, Lisa Hutchinson, who had been working with her to help her increase her involvement in activities of daily living both in her home and with her children. Echelon denied the benefit on the basis that the Treatment and Assessment Plan did not contain a clear rational as to why the applicant continued to require occupational therapy. The applicant disagreed and submitted an application to the LAT.

Issues:

1. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,363.23 for occupational therapy services denied by Echelon on October 15, 2014?
2. Is the applicant entitled to interest on any overdue payment of benefits?
3. Is the applicant entitled to costs?

RESULT

1. The applicant is entitled to receive a rehabilitation benefit in the amount of $ 2,363.23 for occupational therapy services.
2. The applicant is entitled to interest on the overdue payment of benefits.
3. The applicant is not entitled to costs.

Treatment Plan

The Schedule requires an insurer to a pay rehabilitation benefit to an insured person who sustains impairment as a result of an accident, and to pay for all reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market. The burden of proof rests with the applicant to show on the balance of probabilities that the rehabilitation benefits sought are reasonable and necessary.

Following the accident in 2010 the applicant underwent numerous examinations and assessments by the insurer’s examiners, her own family doctor, her psychiatrist and a multi-disciplinary team hired by her legal counsel. Her severe trauma was well documented. The report of her treating physician states that the “applicant requires a great deal of support and treatment to have any chance of improving” and that even with help the applicant’s prognosis was at best guarded and likely poor.

The Arbitrator reviewed all the evidence and the law and determined that the treatment plan in dispute is for reasonable and necessary measures to reduce or eliminate the effects of a disability resulting from the applicant’s impairment and to facilitate the applicant’s reintegration into her family. The goods and services recommended fall into the category of “life skills training” as set out in section 15(5) of the Schedule.

The evidence Echelon relies on to deny the benefit does not persuade the Arbitrator that the applicant has not met the burden of proof to show that the treatment and assessment plan was reasonable and necessary.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.