The Benefits of Using a Life Care Plan report in Estate Planning/Litigations

  • by glarehab
  • Oct 12, 2023
  • Blog
  • 1 comment
Categories
Blog
Categories
Blog

The Benefits of Using a Life Care Plan report in Estate Planning/Litigations

By Galit Liffshiz MA OT Reg.(Ont)
Certified Life Care Planner/Designated Capacity Assessor

Covering health care expenses for the elderly and individuals with a disability is a growing concern in Canada. This is especially relevant at present, given the increased desire of Canadians to age at home following the Covid-19 pandemic.

When it comes to home care, Canadians must figure out what level of care they require, the overall cost, and what role the family might play in providing these services.

Home care encompasses a wide range of services delivered to individuals of all ages in their home. Purposes of home care services include short-term care for recovery from surgery or acute illness, as well as longer-term care for those who are disabled or experiencing limitations because of a chronic condition, aging, or terminal illness.

Unlike hospital and physician services, home care is not an insured service under the Canada Health Act. Therefore, the provinces and territories are not required to offer it to qualify for federal transfers for health care. While Ontario provides home care services, these are very limited and there are unmet needs.

Home care services should be considered and included in estate planning and insurance coverage.

When advising clients on establishing a Will or getting insurance coverage, we need to determine if their families include any special needs member/beneficiary. When there is a dependent person or a person with chronic illness in a family, there might be some obligations of the advisors of the Will (i.e. Estate Lawyers, Life Insurers or Financial Planners) to make special considerations.

Special needs beneficiaries refer to individuals who, due to intellectual, cognitive, functional disabilities, brain diseases, mental illnesses, or injuries, are unable to effectively manage their personal or financial matters. This includes conditions such as Down syndrome, cerebral palsy, autism, Alzheimer’s disease, dementia, schizophrenia, bipolar disorders, and brain injuries.

Life Care Planners can be a good addition to the team of advisors when planning an estate in such cases.

The Life Care Plan is a structured, working document that identifies and estimates an injured or disabled person’s current and future needs in the areas of: home care, medical, rehabilitation, equipment, medication, transportation, and home/environmental accessibility.

Life care planners are certified rehabilitation professionals and educators. They maintain objectivity and base their recommendations upon research literature, the opinions of consulting team members (physicians, therapists), and patient-specific data.

Each recommendation is tied back to the data collected in the interview or history taken with the client or family, as well as review of the available medical records and information regarding client prognosis. Recommendations consider disability, individual, family, and regional factors.

The recommendations are proactive and not reactive. Life care plans are developed in a preventative manner with the goal being to minimize the frequency of occurrence, severity and duration of disability-related complications.

At GLA we are offering Life Care Plans for individuals with a disability. This can be an important tool to calculate expected future life expenses due to aging and disability, as it relates to estate planning or estate litigations.

sfsdfsdsdfd

On the Benefit of Using a Life Care Plan Report in Estate Planning and Litigation

  • by glarehab
  • Oct 12, 2023
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

On the Benefit of Using a Life Care Plan Report in Estate Planning and Litigation

Reviewing the Mrs. Kollmuss and Mr. Kollmuss case law BCSC 709 (CanLll) 2012, we will examine the judge’s assessment of a matrimonial dispute regarding health and care expenses related to a child with disability when parents are divorcing.

In this case, Mrs. Kollmuss, the mother of a child with a disability, is seeking various forms of relief from her ex-husband to help support her child.

Mrs. Kollmuss and Mr. Kollmuss had two children together, Nicholas who was 19 years old, which is healthy and independent and Curtis, who is 16 years old.

Curtis requires constant supervision and care, as he is disabled.

Curtis has Bardet-Biedl syndrome, which is a rare genetic disorder, with highly variable symptoms, which may include retinal degeneration, obesity, reduced kidney function, polydactyly (extra digits of the hands or feet) among many other features).

He is legally blind and is expected to fully lose his vision by the time he is 20 years of age. He has scoliosis and epilepsy with absence seizures, Stereotypic Movement Disorder, and is functioning at the mental age of a 5-year-old. He also has problems with his hips, legs, and feet, affecting his mobility.

In 2010 Mrs. Kollmuss and Mr. Kollmuss got divorce. Following the separation, it was agreed that Curtis would reside in the family home with his mother, as both parents would like to keep him out of government facilities.

Additionally, it was agreed that Mr. Kollmuss would pay child support, spousal support, special needs summer camp, and 70% of Curtis’s day care.

It was agreed that in the instance that the house was sold, 60% of earnings would go to Mrs. Kollmuss and 40% would go to Mr. Kollmuss.

Mrs. Kollmuss disputed the agreement for the support and distribution of equity from the family home, as she claims that the cost of supporting Curtis, in a way that both parties want, is greater than what’s being provided.

When making decisions in this case, the judge considered what was known about Curtis at the time of the trial and what the parties both wish for Curtis.

The judge considered that Curtis attends school Monday to Friday, where he has full-time access to a special needs educator, but this will no longer be the case when Curtis turns 20.

Additionally, it is known that both parties would like him to remain at home with his mother and out of government facilities.

However, Due to the progressive nature of Curtis’s disability, the judge pointed out that there were several “unknowns” that are relevant to each issue being addressed.

These “unknowns” include future funding when Curtis turns 20, and the level of care that will be required of his parents in the near and distant future.

The judge highlights that Curtis’s needs may be to great and costly for his parents in the future, and questioned if Curtis will have access to programs and care that will enable him to live the life that his parents presently hope and plan for him.

Without a Cost of Future Needs report, the judged was forced to base his decision on what was known about Curtis and what the parties both wish for Curtis.

This left the high possibility that both parties will have to return to court in the future, and made it difficult for the parties to plan financially.

In this case, a Life Care Planner could help with calculating expected current and future life expenses of aging and or disability.

The Life Care Plan is a structured, working document that identifies and estimates an injured or disabled person’s current and future needs in the areas of home care, medical, rehabilitation, equipment, medication, transportation, and home/environmental accessibility.

Life care planners are certified rehabilitation professionals and educators. They maintain objectivity and base their recommendations upon research literature, the opinions of consulting team members (physicians, therapists), and patient-specific data.

Each recommendation is tied back to the data collected in the interview or history taken with the client or family, as well as review of the available medical records and information regarding client prognosis. Recommendations consider disability, individual, family, and regional factors.

At GLA we are offering Life Care Plans for individuals with a disability. This can be an important tool to calculate expected future life expenses, due to aging and disability, as it relates to estate planning or estate litigations and in case of family dispute during a divorce.

sfsdfsdsdfd

The Importance of Evidence to Support Recommendations in a Future Care Cost Report

  • by glarehab
  • Jun 02, 2023
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

The Importance of Evidence to Support Recommendations in a Future Care Cost Report

In this blog, we will explore the significance of having appropriate evidence to support recommendations in a FCC Report.

We will examine the judge’s assessment of a Life Care Planner’s (LCP) report in the case decision of Constantinou v. Stannard, 2021 ONSC 5585 [1].

On December 1, 2016, Ms. Constantinou visited her father’s property in Schomberg to meet electricians working there. Ms. Stannard, who rented an accommodation on the property, owned a large dog.

Upon arrival, Ms. Constantinou encountered Ms. Stannard and her dog in a van. Ms. Stannard requested a rope from Ms. Constantinou to tie up her dog, as he could not remain inside where the electricians were working.

While passing the lunge line to Ms. Stannard, the dog bit Ms. Constantinou’s right hand and then grabbed her left elbow with his mouth. Ms. Constantinou did not provoke the dog in any way. She struggled to free herself from the dog’s grip, while Ms. Stannard pulled on the dog’s leash to restrain him.

As a result of the incident, Ms. Constantinou suffered various injuries, with the most significant being a torn left rotator cuff. She filed a claim against Ms. Stannard, seeking compensation for the damages caused by the dog bite.

The dog bite caused a partial tear of the long head of the biceps in her left shoulder, resulting in a significant change in the functionality of her shoulder.

The judge concluded that Ms. Constantinou had suffered damages as a direct result of the dog bite.

The parties held different positions regarding the appropriate amount to be awarded, and the trial focused on the assessment of damages.

The plaintiff relied an occupational therapist with experience in life care planning to prepare a report to assess Ms. Constantinou’s future care costs.

The judge found that the cost estimates provided by the LCP were “overinflated and lacked a factual foundation in the evidence”, which raised concerns about the overall reliability of her report.

For example, the LCP’s estimated the Ms. Constantinou’s need for assistance with snow removal for 10 to 14 times per month for five months per year, or 50 to 70 times per year. This amount of snow clearing was acknowledged by the plaintiff’s counsel to be unnecessary.

As Ms. Constantinou had already required driveway clearing services before the dog bite the judge was not in agreement with this recommendation by the LCP, and stated that the only reasonable expense to compensate for her injury is the additional cost of having the person clearing the driveway also clear the walkways, which would only add about ten minutes to each service.

The LCP estimated the future cost of care in the event that Ms. Constantinou would require additional shoulder surgery. However, Dr. Richards, her orthopedic doctor, indicated that there was only a 10% chance of Ms. Constantinou needing one additional surgery. Therefore, this estimation was not supported by the evidence.

The LCP calculated the mileage costs and hospital trips based on the assumption that the surgery would take place at Sunnybrook Hospital in Toronto.

Ms. Constantinou’s first surgery was performed at MacKenzie Richmond Hill Hospital, which is much closer to her home. As a result of these assumptions, the LCP presented an inflated estimate of the cost of future surgery.

The LCP did not exclude costs associated with medical challenges unrelated to the shoulder injury. She included mileage expenses as reimbursement for additional visits to Ms. Constantinou’s family doctor, even though these visits were not related to the shoulder injury.

The LCP suggested awarding costs for a series of massage therapy sessions, despite no evidence of a recommendation for such therapy by any of Ms. Constantinou’s physicians. The value of massage therapy in managing her shoulder injury was not supported by evidence.

To add on, the LCP calculated the costs of past and future chiropractic care without any evidence or recommendation from Ms. Constantinou’s treating doctors, that such care was necessary for addressing the sequelae of her shoulder injury.

Lastly, the LCP supported Ms. Constantinou’s desire to convert her existing bathtub to a walk-in bathtub based on her difficulty in getting out of the bathtub. However, the evidence did not support the conclusion that her difficulty in transferring in and out of the bathtub was related to her shoulder injury, making this expense unreasonable.

Based on these factors, the judge concluded that the LCP’s recommendations were overinflated and lacked factual strength in assessing the costs and needs of Ms. Constantinou’s care.

In GLA we follow several important principles in composing a life care plan, including making recommendations that are supported by evidence, eliminating recommendations for needs that do not relate to the accident, and making sure that travel to services is reasonable.

We make sure that we get support for our recommendations from the treating team and the medical team, and always recommend the referral source to have our report reviewed by the client’s physician.

[1] Constantinou v. Stannard, 2021 ONSC 5585 (CanLII), https://canlii.ca/t/jkktv, retrieved on 2023-05-15

sfsdfsdsdfd

Thomas Andreas Klatt v. La Toc Holdings Limited, 2021 ONSC 2121

  • by glarehab
  • Feb 23, 2023
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

Thomas Andreas Klatt v. La Toc Holdings Limited, 2021 ONSC 2121

Hope you are enjoying the winter season!

In this edition of our newsletter, we will be discussing the court decision Thomas Andreas Klatt v. La Toc Holdings Limited, 2021 ONSC 2121 [1].

In particular, we will be examining the judge’s satisfaction and critique of the Life Care Planner’s (LCP) future care cost (FCC) report.

In this court case, Mr. Klatt and his family traveled from Toronto to the Sandals Regency La Toc Golf Resort & Spa in Saint Lucia on January 4, 2009. During the first two days of their holiday, Mr. Klatt slipped on the stairs on his way to the plunge pool and suffered a serious injury to his left leg. He was diagnosed with a left quadriceps rupture, requiring surgery.

Mr. Klatt relied on the expert evidence of a LCP, who was qualified to give expert evidence on the quantification of future care needs and costs.

The judge found the LCP’s FCC report to be of assistance because of two major factors:

First, the LCP used appropriate evidence to support the recommendations. The LCP’s analysis was clearly rooted in the range of medical reports  provided.

The LCP report included Mr. Klatt’s information as well as the LCP’s own clinical observations and experience with life care plans. The recommendations were based on evidence the LCP had personally observed, such as the instability in Mr. Klatt’s knee.

The judge stated that the LCP provided medical justification and credible explanations for the recommendations made in the report. For instance, to justify Mr. Klatt’s need for attendant care and increased rehabilitative services in the future, the LCP explained by writing:

 “Based on all available information, it is reasonable to expect that Mr. Klatt will ultimately require extra-ordinary assistance, and/or assistance at an earlier age, compared with had the SFA had not occurred…Further, in the event he does undergo a total knee replacement (TKR) surgery, he will require an extra-ordinary scope of assistance for [completing] personal care tasks including meal preparation, dressing/undressing, bathing/showering, bedroom and bathroom hygiene, grocery shopping, transfers and mobility (indoor/community) as he progresses from non-weight bearing to weight bearing, and gradually resumes independent mobility.”

The judge goes item by item to look for factual foundation and evidence to support the life care planner’s recommendations.

Hence, FCC reports should clearly explain the link between the evidence and recommendations to ensure credibility.

Moreover, the LCP reports focused on Mr. Klatt’s medical needs from his knee injury and not other pre-existing conditions.

In FCC reports, it is crucial for life care planners (LCPs) to put the plaintiff as nearly as possible in the position they would have been but for the injury.

The LCP clarified that her life care plan was only related to Mr. Klatt’s knee injury and not to other medical needs he experiences as a result of other conditions unrelated to the Saint Lucia accident (for instance, his history of cardiac issues).

While these positive points in the FCC report should be noted, there are also two areas of concern we should consider.

The judge accepted the defendant’s critique that the LCP tended to use high-end market ranges for required services.

To rectify this issue, the judge relied on an accountant who was qualified to give evidence in damage quantification. The accountant undertook calculations based on a lower market rate for a personal support worker, housekeeping, and handyman services.

It is recommended that LCPs avoid using high-end ranges in their recommendations. One thing LCPs can consider doing to achieve relatively realistic values for services, is to research three or more hourly rates for a particular service within the client’s region of residence and average them to determine the midpoint cost [2].

Another issue was that the LCP added additional services, such as future psychology, physiotherapy, massage therapy and chiropractic sessions, for which there is little evidence Mr. Klatt will be requiring at the forecast level of frequency.

The judge addressed this issue by discounting the future care costs by 15%.

It is important for LCPs to avoid adding additional services that were not recommended, were not used before or will not be used in the future. However, if a service is necessary, then the level of frequency should be adjusted using the support of medical evidence.

In conclusion, LCPs should provide sufficient evidence to justify their FCC recommendations using medical records, clinical observations, and recommendations by other healthcare professionals. LCPs should also address health conditions unrelated to the injury which can be a complicating feature in the FCC and avoid recommendations for unrelated issues.

At GLA Rehab, we have certified LCPs who are skilled in professional report writing and can give expert evidence on the quantification of future care needs and costs.

We are educating ourselves with recent case laws and adapting our recommendations as per recent decisions.

If you are in need of assistance, please contact us. We would love to help.

Best wishes for a productive winter season!

From all of us at GLA Rehab.

References

[1] Thomas Andreas Klatt v. La Toc Holdings Limited, 2021 ONSC 2121 (CanLII), <https://canlii.ca/t/jf46r>, retrieved on 2023-01-05

[2] Boone v. O’Kelly, 2021 ONSC 2308 (CanLII), <https://canlii.ca/t/jf56t>, retrieved on 2023-01-05

sfsdfsdsdfd

Basic Supervisory Care in the Attendant Care Assessment, Form 1: Things to Consider When Making Recommendations

  • by glarehab
  • Feb 21, 2023
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

Basic Supervisory Care in the Attendant Care Assessment, Form 1: Things to Consider When Making Recommendations

In the court decision Joslin-Mielke v Pembridge, 2022 CanLII 57402 [1], the applicant was a passenger on a motorcycle that was involved in a MVA on May 23, 2016. She sustained severe orthopaedic injuries which included a fracture of the hip, femur, two toes, and ribs on the left side.

The applicant and the respondent disagreed on the monthly amount of attendant care benefit (ACB) from December 20, 2016 to May 23, 2018.

The applicant argued that she needed assistance in basic supervisory care for medical emergency needs at night, whereas the respondent submitted that this was not reasonable and necessary.

In this blog, we will be discussing ‘Basic Supervisory Care’ in the Attendant Care Assessment, Form 1 and how OTs can better address this section by drawing on the results of this court decision.

According to OSOT’s “Assessment of Attendant Care Needs, Form 1: A Resource for Reflective Practice” [2],

Basic supervisory care refers to the time an attendant spends waiting to assist with “hands-on” needs that are unpredictable and/or may present a risk. It may include the following:

  • The inability to be physically, cognitively, behaviourally and/or emotionally self-sufficient in an emergency situation.
  • The potential risk of a bowel accident or condom catheter displacement for a client who is dependent on care.
  • The need for assistance in toileting.

Special consideration is made for night care if a client requires “supervision and/or hands-on care from the time they retire for bed at night until the expected wakening time in the morning.”

According to OSOT,  the following issues at night can be allocated to basic supervisory care:

  • Assistance with bed mobility to prevent skin breakdown
  • Assistance with genitourinary needs e.g., the need for an attendant to be available should the client experience incontinence
  • Reattachment of tubing if it becomes displaced from the trachea
  • Decreased mobility and assistance into wheelchair
  • Inability to be self-sufficient during an emergency
  • Inability to respond to an emergency
  • Needing custodial care due to changes in behavior

In the subject court decision, the main area of divergence was whether basic supervisory care for night-time emergency care was necessary.

The applicant argued that due to her complex leg injuries, reduced range of motion, and need for mobility aids to walk, she requires assistance at night should an emergency occur.

The applicant OT allotted 3,360 minutes to this section, whereas the respondent OT determined this was not necessary.

The applicant OT’s assessment on November 2, 2016 stated that the applicant was unable to bear weight on her right leg without external support, had a reduced range of motion in her leg, and reduced walking and standing tolerance and balance.

She could not access the stairs, could not walk without a walker and external supports, and needed a power wheelchair to get about the community.

In Level 2 of Form 1, the applicant OT determined that the applicant would not be self-sufficient in an event of an emergency when she is asleep at night, stating that the “applicant lacks [the] ability to independently get in and out of a wheelchair or to be self-sufficient in an emergency.”

In the respondent OT’s Attendant Care Assessment on November 30, 2016, the applicant was observed being able to access the main level of her home with the use of a walker for support, access her bathroom without her walker using the counter for support, and demonstrated safety and independence with all transfers.

The respondent OT noted that the applicant was independent under ‘basic supervisory care’ and demonstrated adequate mobility to exit her home in case of an emergency, even with the use of a walker or cane for support.

The judge sided with the respondent OT because her reports were “more reasonable and complete in their assessment of the ACB of the client.”

The arbitrator stated that there was no unique night-time challenges that would hinder the applicant’s ability to respond to an emergency.

The arbitrator added that the OT assessment did not include a formal balance assessment or observation of the client climbing stairs, to support her recommendation for assistance during an emergency at night.

The arbitrator opined that the “totality of evidence” points to the fact that the applicant’s mobility has improved to the point where attendant care in the event of an emergency at night is not reasonable and necessary, as the applicant was self-sufficient to manage on her own.

In this decision, the client mainly suffers from orthopaedic injuries as a result of the MVA. The main indicator for whether she was able to be self-sufficient at night was her mobility skills.

However, if a client suffers from more complex injuries such as brain injury, the considerations for basic supervisory care at night would be more nuanced.

Consideration would have to be made about the effects of cognitive, physical, behavioral, and environmental issues on the client’s ability to be independent.

Clients with significantly impaired balance, weakness and risk of falling will need supervision and physical assistance during the day and at night to get to the washroom safely. In these cases, a formal balance assessment must be completed.

Clients who require prompts and reminders throughout the day or that are not able to respond when under pressure may require assistance under Basic Supervisory Care. In these cases, the OT would be required to complete cognitive screening and to collect collateral information from the client’s caregivers.

Clients that are experiencing behavioral difficulties such as depression, anxiety and irritability with anger outbursts may need periodical and unpredictable assistance to calm down, to retract from a scene or to relax. In these cases, the OT may need to get support for recommendation under this section from the psychologist or psychotherapist that are familiar with the client’s behavioural problems.

Here at GLA Rehab, we have experienced OTs who regularly conduct the AC Assessment, Form 1. They assess clients holistically across all these domains using a wide range of assessment tools with the goal of providing client-centered treatment and care.

If you are in need of assistance, please reach out to us. We would love to help.

References

[1] Joslin-Mielke v Pembridge, 2022 CanLII 57402 (ON LAT), <https://canlii.ca/t/jq24n>, retrieved on 2023-01-26

[2] Ontario Society of Occupational Therapists. (2011). Supporting Occupational Therapy Practice in Ontario’s Auto Insurance Sector, Assessment of Attendant Care Needs, Form 1: A Resource for Reflective Practice. Toronto, ON.

sfsdfsdsdfd

Simmons v. BelairDirect Insurance Company, 2023 CanLII 26935 (ON LAT)

  • by glarehab
  • Feb 06, 2023
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

Simmons v. BelairDirect Insurance Company, 2023 CanLII 26935 (ON LAT)

Hello everyone! Hope you are all embracing the blooming beauty and rejuvenating spirit of the spring season! 🌸

In this edition of our Spring Newsletter, we will be discussing the case decision of  Simmons v. BelairDirect Insurance Company, 2023 CanLII 26935 (ON LAT) [1], in which the applicant was designated catastrophically impaired in criterion 8 of the Statutory Accident Benefits Schedule (SABS).

Ms. Simmons, the applicant, was involved in an automobile accident on February 15, 2018. She sustained a concussion and fracture of her tibia that required surgery. After the accident, she was diagnosed with several mental disorders, including depression with anxiety and PTSD.

When her medical-rehabilitation funding was exhausted, she applied for CAT designation.

The applicant assessor submitted that the applicant suffered from Class 4 (marked) impairments in activities of daily living, social functioning, and adaptation, while the IE submitted that the applicant suffered from a Class 4 (marked) impairment in activities of daily living, and a Class 3 (moderate) impairment in the other three areas of function.

One important difference between the two teams of assessors is that the applicant assessor is a psychiatrist, whereas the IE assessor is a psychologist.

The applicant assessor, being a psychiatrist, considered the applicant’s physical and medical issues, stating that it is important to look at all the applicant’s psychological symptoms and their interaction with her pain and concussion to understand the full scope of her impairment.

The IE assessor, being a psychologist, rather than a medical doctor, primarily focused on the client’s impairments resulting from depression and anxiety, overlooking the influence of her physical and medical conditions on her overall impairment.

In addition, there were variations in the assessor’s interpretation of what makes for a Class 4 (marked) impairment in social functioning.

The respondent rated the applicant with a Class 3 (moderate) impairment in social functioning because “she does not decompensate in all stressful situations.”

They point to surveillance videos showing her taking her dog for a short walk, taking her son to the pool, and engaging in a lengthy conversation at a busy playground and in a restaurant.

The adjudicator did not accept this submission, stating that:

 “It would be unduly onerous to require that the applicant decompensate in any situation involving any amount of stress to establish class 4 (marked) impairment. That would arguably be closer to a class 5 (extreme) impairment…”

The judge added that the applicant’s medical records and testimonies from witnesses corroborated that she suffered from impairments in social functioning.

The applicant had dramatic changes in social functioning after the accident. She became emotionally volatile, short-tempered, aggressive, profane, easily overwhelmed in stressful situations, and prone to panic attacks and emotional breakdowns.

The applicant’s mother testified that the applicant often loses her temper and becomes abusive and profane, describing an episode where she was humiliated by the applicant’s behaviour when they had friends over for dinner.

The applicant’s medical records documented her yelling at her mother during an assessment with a psychiatrist, and a distinct tone of exasperation was present in many of her treatment providers’ notes.

Other examples of altercations and inappropriate behaviour were also documented, such as a physical fight with her neighbor in July and August 2022, and an incident at the airport where she panicked after being separated from her mother for 15 minutes and “lost it at a couple of people.”

The judge observed during the LAT that the applicant frequently broke into tears and needed multiple breaks to compose herself. Additionally, she displayed hostility and combative behaviour during cross-examination, including yelling and swearing at counsel. The judge remarked that her conduct exceeded that of a challenging witness.

According to the judge, these instances of verbal and sometimes physical altercations serve as evidence of the applicant’s Class 4 (marked) impairment in social functioning; they indicate that she is significantly impeded in her ability to interact appropriately and get along with others, including her family, treatment providers, and members of the public.

The most dramatic illustration of decompensation comes from the Occupational Therapy (OT) report. The OT assessment began at the applicant’s home, and consisted of interviewing the applicant and her mother.

During the situational component of the OT assessment, the occupational therapist suggested they go to the grocery store and provided the applicant with a list of items.

The OT provided a vivid description of what followed in his report, which the adjudicator produced verbatim in the case decision:

“Upon being told that she is required to leave her residence to go shopping, Ms. Simmons demonstrated significant distress. She was observed to rub her hands and cry profusely, like she did much throughout the entire assessment. She was observed to stutter, scream and uttered ‘I cannot be rushed at all, this is not happening, I don’t want to go shopping, I just don’t feel like today is a good day to go out’. She was observed to franticly run out of the door, into her own apartment which was located across the hall’. She was provided 20 minutes, in which time her mother attempted to desensitize and calm her down’. Ms. Simmons was retrieved into the apartment by her mother, after which she again reported; ‘I have to get my son at five, and he depends on me, I have to make sure that I’m ready for him, If I try this shopping, this will kill me for the rest of the day, I’m already sick, I can’t…’ she was observed to cry profusely once again which rubbing her hands. She reported ‘I usually save my energy for the whole day; sometime I have friends to motivate me to leave the house. They sometimes take me to the dog park in the morning. I feel like having a schedule is key, and without one I’m struggling so hard to have it, I have no time management’.

Her mother attempted to comfort her as she was crying however, she pushed her mother away and screamed ‘I have to get their mommy, you don’t have to do s***, you just have to watch me… I’m tired… I’m so tired… don’t touch me, don’t touch me… I can’t handle any more stress and bull**** in my life, it’s all stress and bull****… I can’t do this, I didn’t brush my teeth, I am wearing the same clothing as I did yesterday, I don’t look presentable, I don’t want to do this’
She then left the apartment once again, pushing her mother’s hands away and forgot about the kettle which was running as she turned it on to make tea.
The occupational therapist attempted to retrieve the client once again; however, the client was adamant she is not leaving her residence today, even to attempt.

The test was subsequently terminated.”

The adjudicator determined that this was compelling evidence that the applicant is Class 4 (marked) impaired in adaptation, noting:

 “[the applicant] has not worked since the accident, and I cannot envision her succeeding in any workplace. She can decompensate dramatically when she encounters stress in activities of daily living or social interactions, and she tends to avoid stressful situations…”

Healthcare providers should document the client’s behaviour and examples of decompensation during treatment sessions to provide additional information about their daily function and behaviour as evidence in court.

An OT report and situational assessment play a pivotal role in determining whether the client’s impairment level falls into the catastrophic category, as they reveal the client’s ability to function and cope in stressful situations and demonstrate their overall capabilities. They also act as supporting evidence to testimonies and self-reports.

At GLA Rehab, our OTs are skilled in professional report writing and situational assessments, guiding clients through the CAT impairment application process and making appropriate referrals.

We stay up to date with recent case decisions and improve our recommendations accordingly.

Please contact us for assistance. We are here to help.

Best wishes for a refreshing spring season!

From all of us at GLA Rehab.

[1]Simmons v BelairDirect Insurance Company, 2023 CanLII 26935 (ON LAT), <https://canlii.ca/t/jwjzk>, retrieved on 2023-05-15

sfsdfsdsdfd

What is the Test of Admissibility?

  • by glarehab
  • Oct 25, 2022
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

What is the Test of Admissibility?

In this blog, we will discuss the recent court decision: Morris et al. v. Prince et al., 2022 ONSC 1291. In this voir dire, the judge ruled the defense expert life care planner’s evidence inadmissible due to his “failure to be impartial and unbiased.”

In the subject case, the Plaintiff was a pedestrian who was struck by a motor vehicle driven by the Defendant. As a result of the MVA, the Plaintiff suffered a traumatic brain injury.

An expert in life care planning and vocational rehabilitation was retained by the Defendant to provide the court with evidence regarding the Plaintiff’s future care needs and vocational capabilities.

In this case, the Plaintiff seeks a ruling to declare the evidence of the defense expert life care planner inadmissible because it does not meet the Mohan test for admissibility.

The judge determined the admissibility of the defense expert’s proposed evidence using the Mohan criteria which state that:

“Admissibility of expert evidence has to be (a) relevant (b) necessary in assisting the trier of fact, (c) does not fall within any exclusionary rule and (d) is given by a properly qualified expert.”

Justice Mitchell determined that the defense expert was not a properly qualified expert due to his lack of impartiality and independence as an expert witness.

According to Justice Mitchell, a proposed expert’s impartiality is one of the basic standards for the admissibility of expert evidence.

He further states that expert witnesses have a “special duty to the court to provide fair, objective and non-partisan assistance [and] if they are unable or unwilling to comply with this duty, they are unqualified to give their opinion and should not be permitted to do so.”

The defense expert life care planner erred in overstepping and aligning himself with the Defendant who is also his client.

Justice Mitchell determined that the Defendant’s life care planner assumed the role of an advocate for the Defendant’s position from the outset of his retainer and therefore is unable to provide fair objective evidence in this case.

In the defense expert’s report, he highlighted the positive information about the Platintiff and downplayed injuries and capabilities. The positive information highlighted was not relevant to the assessment of the Plaintiff’s future care needs.

To highlight the positives and downplay the negatives regardless of evidence is, in the judge’s view, an indication of bias in favor of the Defendant and demonstrates that the defense expert does not understand his role and duty to the Court to remain impartial and free of bias.

In addition, rather than meeting with the Plaintiff to conduct an independent assessment of his vocational abilities and his ability to perform activities of daily living (which the defense expert admitted was industry best practice), he relied entirely on reports, interviews and assessments conducted by others.

One-half of the defense expert’s 60-page report was a summary of the information he reviewed. The defense expert did not request, let alone conduct, an in-person, virtual or telephone interview with the Plaintiff.

Justice Mitchell opines that this strongly suggests a lack of independence in his approach to the assessment of the issue.

Justice Mitchell further states the defense expert has the responsibility to provide the Court with his opinion as to the realistic future needs of the Plaintiff. His optimism for the Plaintiff’s future should have played no part in his assessment of future care needs.

To conclude, life care planners should bear in mind the importance of providing unbiased, impartial and independent evidence in court, as these are basic standards for the admissibility of expert opinion and evidence.

To be precise, the expert’s opinion must be impartial in the sense that it reflects an objective assessment of the question at hand. It should also be independent in the sense that it must be a product of the expert’s independent judgment, uninfluenced by who retained him/her, or the outcome of the litigation.

Sources

Bartlett, Danielle. “Morris Et Al. v. Prince Et Al., 2022 ONSC 1291.” Ontario Trial Lawyers Association Blog, 26 May 2022, https://otlablog.com/morris-et-al-v-prince-et-al-2022-onsc-1291/.

sfsdfsdsdfd

The Importance of OT Input in the Diagnosis of Chronic Pain

  • by glarehab
  • Oct 25, 2022
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

The Importance of OT Input in the Diagnosis of Chronic Pain

In Mustafa v. Aviva General Insurance Company, 2022 CANLII 81523 (ONLAT), Mr. Mustafa was involved in an MVA on April 25, 2018 and developed psychological and physical impairments including pain.

Mr. Mustafa reported symptoms of headaches, neck, shoulder, and back pain, disturbance of sleep, and disturbance of physical activities. He also experienced psychological symptoms of worry, anxiety, anger, low energy, fatigue, sleep problems, difficulties with concentration, and memory problems.

Following assessments with his family physician, Mr. Mustafa attended an examination at Mediwise Healthcare Centre. This resulted in the OCF-18 for functional impairment assessment and physiotherapy.

Mr. Mustafa attended a functional impairment assessment with Dr. Nathanson, chiropractor, in June 2020 who diagnosed him with chronic pain.

The OCF-18s were denied and an IE was sent. The September 2020 IE assessor indicated that there was no evidence of musculoskeletal or neurologic impairment in this case.

Aviva submits that the OCF-18 issued by Mediwise Healthcare Centre is not reasonable and necessary due to the “lack of contemporaneous medical evidence.”

The insurer further submits that the applicant does not meet the test for a diagnosis of chronic pain as described in the American Medical Association (“AMA”) Guides.

Vice-Chair Brett Todd states that answering the chronic pain question is necessary to justify the OCF-18s. He agrees with the respondent that the examiner did not properly assess the applicant against the criteria required to provide a diagnosis of chronic pain.

To meet a diagnosis of chronic pain, an individual must meet at least three of the six criteria set out in the AMA Guides:

  • Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
  • Excessive dependence on health care providers, spouse, or family;

Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

  • Withdrawal from social milieu, including work, recreation, or other social contacts;
  • Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and
  • Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.

In the subject case, there was no OT on file.

OT assessment and intervention could have helped the chiropractor or any physician to illustrate the impact of Mr. Mustafa’s pain on his function.

In the chronic pain assessment set by the AMA Guides, as listed above, criteria (II)- (VI) are asking about the client’s level of dependency on health care providers, spouse, or family with daily functions; development of physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.

OTs are uniquely trained to evaluate the impact of pain on the client’s ability to engage in meaningful activities as per the domains listed above.

OT assessment and intervention reports are describing the extent of the pain symptoms on a client’s physical, cognitive, and psychosocial function and are identifying challenges in clients’ engagement of daily activities.

This would assist the chiropractor in Mr. Mustafa’s case to substantiate the diagnosis of chronic pain.

Here at GLA Rehab, our OTs are experienced in evaluating functional status and assessing changes in all these domains. Our OTs have the tools to address dependency on others, deconditioning, fear of movement, withdrawal from activities of daily living and the effect of the client’s mood on his/her function.

We are also skilled in conducting situational assessments, which help illuminate the relative impacts of various impairments on a client’s ability to engage in self-care, housekeeping, caregiving, driving, work and recreational activities.

If necessary, our OTs can also recommend referrals to other specialists, who can explore diagnosis and prognosis related to pain and emotional symptoms.

All this information is useful to assist physicians in reaching the diagnosis of chronic pain.

If you have a client who demonstrates changes in ability to manage daily function and is reporting changes in behaviour, it is imperative that an OT be part of the assessment and rehab team.

Please contact us. We would love to help.

Best wishes for a safe and productive Autumn season!

From all of us at GLA Rehab!

Sources:

 Mustafa v Aviva General Insurance Company, 2022 CanLII 81523 (ON LAT), <https://canlii.ca/t/jrtcv>, retrieved on 2022-10-22

Rondinelli, R. D., Genovese, E., Katz, R. T., Mayer, T. G., Mueller, K. L.,

Ranavaya, M. I., & Brigham, C. R. (2022). Pain-Related Impairment. In AMA

Guides to the Evaluation of Permanent Impairment, Sixth Edition, 2022 (Vol. Sixth,

2022, pp. 0): American Medical Association.

sfsdfsdsdfd

Cognitive Functional Capacity Evaluation (Cog-FCE)

  • by glarehab
  • May 05, 2022
  • Blog
  • 0 comment
Categories
Blog
Categories
Blog

Cognitive Functional Capacity Evaluation (Cog-FCE)

GLA Rehab now offers an assessment called the Cognitive Functional Capacity Evaluation (Cog-FCE.)

This is in addition to Cognitive Functional Capacity Evaluation (FCE) and Vocational Assessment which we have been doing so far.

The FCE mostly addresses the physical capacity and physical limitations, as they affect work capacity and employability. The FCE is not designed to accommodate for the cognitive and/or behavioural challenges, faced by individuals with traumatic brain injury or mental health conditions.

The Cognitive Functional Capacity Evaluation (Cog-FCE) accounts for the functional cognitive barriers, and psycho-emotional and behavioural barriers to return to work, faced by this diagnostic group. It compliments the FCE that addresses the physical barriers.

This assessment will be completed by our occupational therapists in collaboration with our trained FCE+Cog-FCE assessors.

So, what is the Cognitive Functional Capacity Evaluation?

The Cognitive Functional Capacity Evaluation (Cog-FCE) is designed to evaluate the ability to work for individuals with cognitive disabilities.

This assessment helps to explain how clients’ cognitive challenges may affect their ability to work. This evaluation will be used to assist with a client’s return-to-work plan and goals, as it combines a cognitive analysis with a focus on how the client is able to perform functionally and vocationally.

The first step involves an analysis of the cognitive job demands of the client’s pre accident job.

The second step is when the OT will be using a variety of different assessment methods, including a combination of subjective and objective measures. The OT will use high-level cognitive screens and questionnaires that will provide a baseline of the client’s cognitive status.

Some of the work-related cognitive tasks that the OT will look for are the client’s ability to follow instructions, remember procedures, sustain attention on a task, problem solve, plan and organize, reason, self-regulate, self-correct decisions, meet deadlines, work under pressure, be flexible and shift thoughts and plan when needed, multi-task, use adequate judgement and more.

We will address the client’s ability to communicate with others, be clear, understand instructions and self-advocate in a work environment.

The third step, work simulation, is when the OT will be asking the client to complete tasks that mirror the demands they would be responsible for if they were to return to work. This is through simulated situational assessments and analysis of the client’s ability to meet job demands. The OT will create situational tasks that model real-life work demands to see how these cognitive disabilities may manifest during work tasks.

Why is this evaluation helpful?

The Cognitive Functional Capacity Evaluation can be a very helpful tool to assess a client’s occupational performance and cognitive disabilities, in relation to their ability to perform their pre-accident job or any job that is “reasonably suited by education, training or experience.”

By taking a comprehensive and holistic approach to assessment, the client is observed through several different avenues of obtaining information.  The assessor can develop further insight into how the client’s cognitive disability is apparent in a variety of tasks and situations.

The assessment findings and the identified gaps in ability to perform the cognitive job demands will be of assistance for Income Replacement Benefits claims and disputes

The team at GLA Rehab is excited to start using the Cognitive Functional Capacity Evaluation as this will allow us to collect data related the client’s ability to work, while he/she/they are coping with cognitive-behavioural impairments, following a motor vehicle accident.

sfsdfsdsdfd