The claimant was a six year old minor, who sustained a significant brain injury as well as other impairments as a result of an accident on May 28, 2015. She was deemed catastrophically impaired. The claimant disputed entitlement to rehab benefits for tuition and other expenses for the claimant’s brother to attend school as recommended in three different treatment plans. As a result of the claimant’s injuries, the public school she attended pre-accident was unable to meet her needs for an EA that was recommended. The claimant’s parents found a private school that could meet her special needs, which required funding. The funding for the claimant’s attendance at the private school was approved. She had a twin brother with whom she had a special bond and with whom she had always attended the same school. It was determined that the brother’s attendance at the private school proved to demonstrate significant improvements for the claimant. Three treatment plans were submitted for funding of the twin brother’s tuition at the school. The claimant argued the treatment plans for private tuition for the brother was reasonable and necessary as it achieved the rehabilitative goal of reducing the effects of the claimant’s disability. The insurer relied on the opinion of the IE expert, who determined the treatment plans were not reasonable and necessary as there were ethical concerns about using the brother as a rehabilitative tool and that it could have an adverse effect on the brother both academically and emotionally. The IE expert also opined that the brother may develop compassion fatigue and come to resent the claimant. In addition, the claimant might also become overly dependent on her brother for her future academic success. Adjudicator Hines found that the treatment plans were reasonable and necessary, but were not payable because they were incurred prior to submission of a treatment plan. Adjudicator Hines found the case was unique as the claimant responded negatively to conventional treatment that caused harm and disruption to the claimant’s family. The evidence supported that the brother’s attendance at the same school resulted in significant improvements to the claimant’s communication skills and had a positive impact in her social skills with her peers. The issues raised by the IE expert were speculations and not evidence based. In addition, the insurer did not request production of the claimant brother’s medical and academic records. Adjudicator Hines also took into consideration the testimony of the mother of the claimant, who was found to be a credible witness and gave testimony that both the claimant and her brother thrived at the school. However, the insurer raised an argument that the plans were not payable since they were incurred prior to being submitted. Adjudicator Hines agreed that the insurer was not liable to pay the treatment plans because of the claimant’s failure to comply with section 38(2) of the SABS.
