Minor Entitled to EEG Without Diagnosis of Concussion - Applicant v Wawanesa

May 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Entitlement to EEG: benefits; MIG; applicant is minor; no formal diagnosis of concussion however the benefit is approved

Date of decision: March 31, 2017
Heard Before: Adjudicator S. F. Mather

The applicant was involved in a car accident at the age of 14 on September 14, 2014 and sought medical benefits pursuant to the SABS. Following the accident, the applicant reported suffering headaches, dizziness, concentration and focusing issues as well as changes in mood and emotional status affecting her performance in school. She was assessed by  a psychologist who recommended the applicant undergo an electrophysical brain measurement (“EEG”) in a Treatment and Assessment Plan dated December 17, 2015. Wawanesa denied the treatment plan on the basis that the applicant had not been diagnosed with a concussion. The applicant applied to the LAT for resolution.

Issues:

1. Is the applicant entitled to $1950.00 for the EEG assessment recommended by a psychologist, in a treatment plan (OCF-18) dated December 17, 2015?
2. Is Wawanesa entitled to costs?

Results:

1. The applicant is entitled to $1950.00 for the EEG recommended by a  psychologist in a Treatment and Assessment Plan (OCF-18) dated December 17, 2015?
2. Wawanesa is not entitled to costs.

Analysis:

The applicant filed three documents authored the psychologist with her written submissions:

1. Psychological and Consultation Final Report Dated September 15, 2016
2. Psychological Consultation Addendum Report dated August 22, 2016
3. Letter to the Principal of the applicant’s school dated September 27, 2016

Wawanesa argues that these reports and letters were not submitted according to the Rules and are highly prejudicial and complains that it did not have the opportunity to forward the reports to the assessors that conducted the Insurer’s Examiner for their opinion. Wawanesa requests an order excluding these reports and all documents pursuant to LAT Rules.

Rule 19.4 of the LAT Rules provides:

If a party fails to comply with any Rules or Orders with respect to disclosure or inspection of documents of things, or list of witnesses, that party may not rely on the document or thing as evidence, or call witnesses to give evidence without the consent of the tribunal.The Arbitrator was not prepared to exclude the reports and the letters delivered with the litigation guardian’s submissions on the basis that they were not delivered by September 12, 2016. The documents that Wawanesa is objecting to are all dated after the date of the July 18, 2016 Case Conference.  The Psychological Consultation Report and the letter to the school principal are both dated after the September 12, 2016. The reports were delivered by the date set out in the Tribunal order for the delivery of written evidence for the written hearing. If Wawanesa felt that it was prejudiced by these documents it could have requested an adjournment of the proceeding to allow its assessors who provided the Insurance Examinations to provide their opinions.

Wawanesa also asks the Tribunal to exclude all of the evidence psychologist’s evidence since the litigation guardian has not provided any medical records other than the report dated May 9, 2016 and the reports and letter submitted with her evidence and submissions. The Arbitrator was not prepared to exclude the evidence as the documents were filed before the deadline set by the Tribunal for the applicant’s evidence and submissions.

Entitlement to Benefit

The Schedule states that an insurer shall pay for all medical benefits which are reasonable and necessary. Medical benefits include EEG tests, which are a medical service as described by s. 15(1)(a) of the Schedule. The Arbitrator was satisfied that the EEG in the amount of $1950.00 recommended in the OCF-18 dated December 17, 2015 was reasonable and necessary. The Arbitrator was satisfied that the applicant proved on the balance of probabilities that the medical benefit sought was reasonable and necessary and I

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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.