The claimant alleged that a stroke six weeks after the accident was caused by the accident. She sought entitlement to IRBs and an electric scooter. The parties agreed that the “but for” test was the appropriate test for causation. Adjudicator Parish concluded that the medical evidence did not prove that the stroke was caused by the accident. The injuries the claimant did sustain in the accident did not support entitlement to IRBs or an electric scooter.
The claimant sought entitlement to IRBs; the insurer argued that the dispute was barred by the limitation period. Adjudicator Ferguson agreed with the insurer and held that the denial of IRBs had been more than two years prior to the LAT application, and that the denial was clear and unequivocal. The claimant’s argument that he interpreted the denial as allowing him to seek IRBs at a later date was not accepted. It was further noted that the denial was to be considered in an objective manner rather than a subjective manner.
The insurer sought repayment of $9,673.38 in IRBs and accountant fees of $2,353.93. Adjudicator Ferguson concluded there was an overpayment of IRBs because the claimant had misrepresented his pre-accident income and that the insurer’s payment of IRBs was therefore made in error. He held that he had no jurisdiction to order the claimant to reimburse the insurer for the cost of the accounting costs.
The claimant sought entitlement to IRBs. The only issue in dispute was the quantum of IRBs payable. The claimant submitted that she earned $1,500 gross income in the 4 weeks pre-accident whereas the insurer submitted that based on the evidence, the claimant earned $700 gross income in the 4 weeks pre-accident. Adjudicator Neilson found that the testimony of the claimant, her husband, and her employer about her earning $1,500 in the 4 weeks pre-accident was unreliable because it was not supported by financial documentation. Adjudicator Neilson noted that she preferred the evidence of the insurer and relied on financial documents submitted by the claimant, including her T4 and payroll slips, to conclude that the claimant earned $700 gross income in the 4 weeks pre-accident. Adjudicator Neilson concluded that the claimant had not met her onus of proving a gross income of the higher amount of $1,500 in the 4 week pre-accident period.
The claimant disputed her entitlement to eight treatment and assessment plans and post-104 week IRBs. Adjudicator Kershaw awarded all of the medical benefits in dispute, save for a portion of a treatment plan that sought funding for a weighted vest. With respect to the weighted vest, Adjudicator Kershaw agreed with the IE neurologist’s opinion that the vest had no scientific utility and therefore was not reasonable and necessary. As for the claim for post-104 week IRBs, Adjudicator Kershaw noted that it was accepted by both the IE assessors and the claimant’s doctors that the claimant had psychological difficulties. Adjudicator Kershaw also relied on the claimant’s doctors’ reports noting that the claimant had cognitive difficulties and dizziness, which he opined would preclude her from returning to employment. Adjudicator Kershaw did not accept the insurer’s vocational assessor’s evidence identifying other suitable employment opportunities for the claimant, noting that the claimant’s psychological and cognitive issues prevented her from returning to gainful employment. As such, Adjudicator Kershaw concluded that the claimant was entitled to post-104 week IRBs.
The claimant sought entitlement to IRBs. The insurer argued that the limitation period applied. Adjudicator Harmison concluded that the claimant was time-barred from seeking IRBs. She held that the insurer clearly told the claimant that he did not qualify for IRBs in its response to his OCF-1. The insurer also set out the two year time limit and procedure to dispute entitlement. Adjudicator Harmison further held that it was not the date of the OCF-3 submission that triggered the limitation period.
The claimant sought reconsideration of the Tribunal’s order for her to repay IRBs of $17,200. She argued that the insurer still owed her IRBs for a period prior to her return to work, which should be offset against the repayment. The hearing adjudicator did not address her argument. Associate Chair Jovanovic ordered a new hearing on the claimant’s entitlement to IRBs in order to quantify whether there was any offset that the claimant was entitled to in relation to the ordered overpayment.
The claimant sought entitlement to various treatment plans, IRBs and dental treatment. The insurer raised section 33 and 55 defences due to the claimant’s failure to provide requested information and attend IEs. Adjudicator Ferguson held that the claimant was barred from seeking IRBs and dental treatment for failing to provide dental records, invoices, an OCF-10, income tax returns, and post-accident income information requested per section 33. The adjudicator held that there was no legal basis for the claimant’s argument that as long as best efforts are made under s. 33, the claim moves forward. The adjudicator also held that the claimant’s appeal for other goods and services of a medical nature was barred per section 55. The claimant’s reason for non-attendance was that her psychological and pain-related impairments prevented her from leaving her house, which was not supported with any evidence and the insurer had surveillance showing her participating in various ADLs outside of her house. The adjudicator denied various treatment plans due to lack of medical evidence, but found the balance of a chiropractic treatment plan payable as the insurer only denied the treatment plan based on the MIG, and was not allowed to rely on the MIG position after covering psychological treatment.
The claimant sought entitlement to IRBs and various medical benefits for chiropractic services. Adjudicator Watt held that the claimant was not entitled to IRBs or the medical benefits in dispute. The claimant suffered soft-tissue injuries and claimed he could not complete computer work for more than 30 minutes and his headaches caused dizziness and poor concentration. The claimant continued to play hockey, baseball and floor hockey 2-3 times per week. The claimant ran an eBay and Amazon store buying and selling collectibles. He was unable to provide any supporting documentation to verify his income. IE assessors found that the claimant did not meet the IRBs test. Another IE assessor found that chiropractic treatment was not reasonable and necessary as the claimant had achieved maximum medical benefit from chiropractic services. The adjudicator focused on the fact that the claimant could engage in physical sports without complaints of headaches and neck pain.
The claimant sought entitlement to IRBs from the date of denial until her return to work and various medical benefits, including a chronic pain assessment, and a two-part physiatrist assessment. Adjudicator Lake held that the claimant did not meet the IRBs test and both the chronic pain assessment and two-part physiatry assessment were not reasonable and necessary. The only evidence on the claimant’s essential tasks of pre-accident employment were from self-reports to medical professionals. There were no entries in medical records regarding her ability to work for the period in dispute. The insurer relied on three IE reports (psychology, neurology, orthopedic surgeon) which all concluded that the claimant did not suffer an inability to perform the essential tasks of her pre-accident employment. The adjudicator found the IE reports to be largely convincing accounts of the claimant’s post-accident condition. With regard to the disputed chronic pain assessment, the adjudicator preferred the two IE reports from the insurer which both found that the assessment was not reasonable and necessary. The adjudicator noted that the referring chiropractor did not make a finding as to whether the claimant’s alleged chronic pain occurred as a result of the accident, failed to comment on pre-accident migraines, and omitted details of pain levels and complaints, whereas one of the IE assessors was authorized to practice on chronic pain management. Additionally, there was no medical documentation on file beyond the assessment report from the referring chiropractor. With regard to the two-part physiatry assessment, there was conflicting evidence regarding the claimant’s impairments as she was able to return to work in a physical role, yet unable to complete ADLs involving her work tasks. The adjudicator also noted that the claimant did not pursue other recommended investigations, such as an MRI, to determine her physical status, which was one of the goals of the treatment plans.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP