O.A. v. TD Insurance Meloche-Monnex

The claimant disputed entitlement to additional funding for catastrophic impairment assessments. The insurer had approved $12,000 for an executive summary, psychological assessment, neurocognitive assessment, orthopaedic assessment, and occupational therapy assessments. The claimant sought a further $11,533.24. Adjudicator Boyce concluded that the denied assessments were not reasonable and necessary. The denied items were psychometric testing, scoring, and interpretation; neurocognitive testing, scoring and interpretation; a musculoskeletal examination; an occupational therapy situational evaluation; an occupational therapy collateral interview; and a WHODAS 2.0 assessment. Adjudicator Boyce found that the claimant’s proposed assessments were needless bifurcations or duplications of assessments, which was done to garner additional funding. He noted that the insurer was able to complete its catastrophic impairment assessments with funding of $12,000 and the claimant failed to prove why his assessors could not also do so. The claimant’s arguments that he suffered unique complex injuries warranting additional funding was rejected. The claimant’s argument that his assessors required twice as long because of his poor English skills was also rejected. Adjudicator Boyce did award a total of $400, being the cost of completing the OCF-18 and the OCF-19.

E.C. v. Northbridge Commercial Insurance Company (18-006384)

The claimant sought reconsideration of the Tribunal’s rejection of catastrophic impairment costs. Adjudicator Grant rejected the reconsideration request. He acknowledged two typos / misnomers, but neither affected the Tribunal’s decision. He maintained that the Tribunal applied the correct legal test, which required the claimant to prove that the disputed assessments were reasonable and necessary. The Tribunal considered the claimant’s physical and psychological conditions and determined that the claimant did not meet his onus. Adjudicator Grant rejected the argument that the Tribunal could not rely upon the content of medical records as it was hearsay. The Tribunal was permitted to accept hearsay and assess its weight. Second, the medical records were to be accepted as accurate unless the claimant called evidence to contradict the content. If the claimant wished to dispute the accuracy, he needed to summons the creator of the record to examine them at the hearing. Finally, Adjudicator Grant rejected the argument that he could not hear the reconsideration because he was the adjudicator hearing the original application. Jurisprudence was clear that a reconsideration is not a statutory right and that administrative tribunals are permitted to provide rules governing reconsideration the process, including who will hear the reconsideration.

D.L. v. Aviva Insurance Canada (19-001860)

The claimant sought entitlement to CAT assessments totalling more than $26,000, as well as four treatment plans for passive physical therapy, and a psychological assessment. Vice Chair Farlam rejected the claims. While accepting that assessments are speculative in nature, the claimant failed to prove that there was any reasonable basis to investigate whether the he was catastrophically impaired. There was insufficient objective evidence to suggest a WPI of 55 percent or a marked impairment in three or more areas of function. Vice Chair Farlam noted that by the time the claimant had proposed the CAT assessments he was working, doing child care, exercising at the gym, doing home renovations, and was not using prescription medications. For similar reasons, the claimed physical therapy and psychological assessment were denied.

A.S. v. Certas Home and Auto Insurance Company (19-004994)

The claimant was involved in a 2009 accident. She sought entitlement to three assessments and a series of CAT assessments. An initial issue was raised as to whether section 25 of the post-2010 SABS applied, or if section 24 of the earlier SABS applied. The adjudicator held that section 25 of the 2010 SABS applied, as the transitional rules did not keep section 24 in force. On the claimed benefits, Adjudicator Farlam concluded that none of the assessments were payable. the claimant failed to provide evidence that the subject accident caused ongoing impairment, particularly in light of a subsequent accident she was involved in. Regarding the claimed CAT assessments, the adjudicator held that there was no reasonable basis to investigate whether the claimant was catastrophically impaired, and no evidence led that the claimant might have a 55 percent WPI. It was again noted that the claimant’s complaints arose primarily after her second accident.

E.C. v. Northbridge Commercial Insurance Corporation (18-006384)

The claimant was involved in an accident on February 9, 2006 and disputed entitlement to a treatment plan for $25,659.25 proposing catastrophic assessments. The insurer argued that the claimant had sustained only minor, soft tissue injuries as a result of the subject accident and had not established that catastrophic assessments were either reasonable or necessary due to lack of objective medical evidence. Adjudicator Grant noted that, by their nature, assessments are speculative and are conducted to determine if a specific condition exists or threshold has been met, but accepted the insurer’s position that there must be “some” suggestion that a specific condition exists in order to conclude that further investigation is reasonable or necessary. An IE paper review acknowledged that the claimant sustained injuries from the initial accident and that the current complaints were the same as before the accident, but also considered that there was no medical evidence to support that the claimant’s current pain complaints were related to the accident. The IE assessor noted a six-year gap in medical records, along with no supporting medical records to substantiate the claimant’s subjective complaints. The claimant did not provide any records to contradict those findings. Adjudicator Grant dismissed the claimant’s application in its entirety.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant disputed entitlement to the cost of CAT assessments in the amount of $22,400. The claimant argued that the proposed assessments were reasonable and necessary to determine whether or not she sustained a catastrophic impairment because “it is possible [she] may be catastrophically impaired, either under s. 3.1 of the Schedule, criteria 7 (whole person impairment) or criteria 8 (marked impairment in there or more areas of function).” The claimant further pleaded that she did not have the means to fund the assessments herself, nor was she personally required to fund the assessments under section 25 (1) 5. In Response, the insurer pleaded that first, the each assessment must be reasonable and necessary, and second, that the fees charged for each assessment must themselves be reasonable. The insurer further noted that the claimant had the burden to show that each constituent element that makes up the CAT assessment is itself reasonable and necessary on a balance of probabilities. Adjudicator Farlam agreed that the onus of proof was on the claimant, and that the associated fees must also be proven to be reasonable and necessary. Adjudicator Farlam dismissed the claimant’s case, noting a lack of medical evidence in the records reviewed, including a lack of explanation by the claimant’s treating practitioners as to how the specific conditions alleged by the claimant were related to the subject accident. Adjudicator Farlam was extremely critical of the claimant’s CAT assessors, in particular, Dr. Igor Wilderman, a general practitioner with a focus on chronic pain. Dr. Wilderman diagnosed the claimant with PTSD, despite seemingly not having a licence to practice psychology or psychiatry; his failure to note in his report that he reviewed key evidence, including psychiatric reports on record, or explain in sufficient detail how any of the 14 diagnoses he made were actually caused by the subject accident. Of note, Dr. Wilderman listed “female sex” as one of the claimant’s barriers to recovery. Adjudicator Farlam gave this report little weight.

A.L. v. Unica Insurance Inc. (18-008890)

The claimant sought a determination of a catastrophic impairment based on a WPI in excess of 55 percent. He also sought entitlement to ACBs, the denied portion of CAT assessments, and various medical benefits. Adjudicator Lake concluded that the claimant did not suffer a catastrophic impairment. She rejected the claimant’s experts opinions on WPI for mental or behavioural impairments because it relied on opinions from other experts which those experts later retracted. Even if all other WPI were accepted, the claimant would only have a 42 percent WPI. The ACBs claim was dismissed because it was for a period beyond the 104 week mark. Adjudicator Lake agreed with the claimant that CAT assessments were not paid out of the medical benefits limits, and found that six of proposed seven assessments were reasonable. Finally, Adjudicator Lake held that the treatment plans for further physiotherapy were reasonable and necessary, but that the claims for assistive devices, an attendant care assessment, and a two-part neuropsychological examination were not.

S.K. v. Technology Insurance Company Inc. (19-003749)

The claimant sought entitlement to social work services, HST on treatment plans, and the cost of CAT assessments. Adjudicator Chakravarti held that the limitation period applied to the social work services because the denial of the proposed rate was clear and unequivocal. Section 7 of the LAT Act did not apply because the claimant did not provide any details as to why the dispute was brought outside the limitation period. The limitation period did not apply to the HST claim because the insurer provided contradictory reasons in the denial letter. The limitation period did not apply to the CAT assessments either because the denial letter only indicated that the insurer had not made a decision regarding the proposed costs.

A.M. v. Wawanesa Mutual (18-008775)

The claimant sought a catastrophic impairment determination, as well as entitlement to NEBs, ACBs, various medical benefits, and the denied portion of catastrophic impairment assessments. The insurer argued that the claimant’s psychological injuries and epilepsy were not accident-related, but resulted from pre-existing conditions. Adjudicator Lake agreed with the insurer and dismissed all claims. She found that the claimant had suffered from various pre-accident impairments (epilepsy, migraines, major depressive episodes related to the death of the claimant’s daughter). Further, surveillance of the claimant showed that she was not credible in her self-reporting. Adjudicator Lake was also critical of the claimant’s experts assigning the maximum WPI when converting psychological impairment. With respect to psychological impairment caused by the accident, Adjudicator Lake found Class 1 and 2 impairments. The claims for NEBs and ACBs were similarly dismissed. The denied portions of the CAT assessments were not reasonable and necessary, and the claimed medical benefits were dismissed.

F.A. v. Aviva General Insurance (18-0011952)

The claimant sought entitlement to various medical benefits and payment for the cost of examinations. Adjudicator Johal ruled that all disputed plans were not reasonable or necessary based upon the evidence provided. Further, the claimant had not satisfied her onus to prove on a balance of probabilities that the treatment and assistive devices were effective for her recovery. With regards to the cost of the CAT Assessments, Adjudicator Johal found that the assessments were not necessary to determine whether the claimant had a catastrophic impairment. The insurer raised the issues of whether the accident was the cause of the claimant’s injuries. The adjudicator determined that the claimant was not forthright about her pre- and post-accident medical history, her employment history and other traumatic life events. In conclusion, Adjudicator Johal held that the medical evidence suggests that the accident was not a necessary cause of the claimant’s physical complaints nor did the accident exacerbate her injuries.