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A.K v State Farm Insurance Company

A recent License Appeal Tribunal (LAT) decision, A.K v State Farm Insurance Company (Tribunal File Number: 16-002503/AABS)(ON LAT) (January 12, 2018) addressed the issue of pre-existing medical conditions in applicants applying for CAT designation.

In this case, the applicant was an eight year old child who was injured in a motor-vehicle accident on October 2, 2014. The applicant was struck by a vehicle as a pedestrian and sustained a traumatic brain injury. He applied for and received medical, rehabilitation and attendant care benefits from State Farm, the respondent.

After exhausting the non-CAT benefits, the applicant applied for CAT designation under s. 3(2)(d)(ii) of the SABS Schedule – effective September 1, 2010. This criteria requires a score of 3 (severe disability) as a result of a brain injury on the Glasgow Outcome Scale (GOS).

The respondent disputed this on the grounds that the applicant was severely disabled at the time of the accident. As such it was not clear that the index accident significantly impacted his daily functioning and increased his need for supports.

The applicant suffered a severe brain injury as a three month old infant. He arrived in Canada with his mother and four siblings as a refugee in 2010. Following his arrival he was assessed by a physician and was diagnosed with cognitive sequelae, seizure disorder, developmental, speech and cognitive delays.

He had behavioural issues and displayed aggression towards others.

Despite his disability he was able to attend school and was making gains at the time of the accident. For example, he was able to ride a bus to school and was making improvements in social skills. His frustration tolerance was improving and he was able to self-calm.

Both the applicant and the respondent submitted medical and OT assessments.

The adjudicator agreed with the applicant’s position and found that the brain injury he sustained significantly worsened his condition and daily functioning which resulted in the need for increased daily supports.

The applicant met the GOS 3 (severe disability) criteria and was deemed CAT.

The adjudicator found that the applicant’s CAT assessment was more compelling for the following reasons:

  • The report included a review of the pre-accident medical records.
  • The applicant’s mother was interviewed by the assessing OT and psychologist. She provided information on specific changes to her son’s daily functioning after the accident including his increased need for supports.
  • The OT in-home GOS assessment focused on changes to the applicant’s daily functioning that occurred as a result of the accident, including self-care, behavioural responses and changes in medical needs and treatment.
  • The OT provided specific examples of the applicant’s decreased functioning such as an increase in self-harm behaviours and disturbances in his sleep cycle.
  • The assessors compared the GOS findings to normal dependences for the applicant’s age.
  • The assessment provided a thorough analysis of the GOS rating and its applicability to the applicant.

The adjudicator noted following problems with the respondent’s CAT assessment:

  • The assessors did not review all relevant pre-accident medical documents to compare with the applicant’s function at the time of the assessment.
  • It did not address the mother’s concerns about the changes to the applicant’s function following the accident.
  • The assessors did not analyze how the GOS rating is applicable to a minor and if the applicant met the criteria for CAT using the GOS.
  • The assessors were not clear about what criteria was being assessed for CAT designation. For example, the OT assessment referred to “marked impairment” which refers to the AMA guides for permanent impairment (criterion 8) and did not refer to the GOS which was the proper criterion.

This decision sets a precedent that all relevant pre-accident medical records should be reviewed when preparing CAT applications for clients with significant pre-accident disabilities.

It also makes clear that the applicant’s current level of function must be compared to pre-accident function by using specific examples of changes to needed supports.

When it comes to assessing children, the parents and/or caregivers should be included in the interview. The same is true for adults. The caregivers, family members and others who knew them from before and after should be approached to provide appropriate information.

The decision in this case also serves as a reminder for assessors to be clear about the criterion they are using when applying for CAT.