Category: LAT Rules

The claimant sought entitlement to a psychological assessment and a chronic pain assessment, plus a special award. As a preliminary matter, the parties’ submissions refer to a disagreement over whether the psychological assessment was withdrawn with prejudice by the claimant at a previous case conference in an earlier Tribunal matter. Adjudicator Maleki-Yazdi found that the claimant could proceed with the dispute, as there was no final order from the Tribunal regarding the assessment. The claimant argued that the insurer’s denial did not comply with section 38(8), as the denial was not made within 10 business days. The insurer argued that the treatment plan was submitted to Aviva Insurance Company of Canada, a separate legal entity, and the documents were not received by the insurer nor did it have access. Furthermore, the insurer submitted that the claimant did not comply with section 38(2) because the claimant incurred the cost of the treatment plan less than 10 days after the submission. Adjudicator Maleki-Yazdi held that the evidence demonstrated that the assessment was incurred prior to the submission to the insurer and none of the exceptions listed in section 38(2) applied to the case. With respect to chronic pain assessment, Adjudicator Maleki-Yazdi held that there was evidence that, as a result of the accident, the claimant experienced an exacerbation of the constant and/or severe pain that she experienced prior to the accident. Considering how frequently the claimant visited with her family physician, the fact that there were no further assessments of either Chronic Pain Syndrome or chronic neck/back sprain during the months prior to the accident demonstrated that she was not experiencing constant and/or severe pain leading up to the date of loss. There was also evidence that the claimant experienced some functional limitations as a result of the physical pain. The chronic pain assessment was there found to be reasonable and necessary. The special award claim was dismissed.

The claimant sought entitlement to two treatment plans for chiropractic services, massage therapy, and physiotherapy. The insurer submitted that it was not liable to pay either treatment plan in dispute because neither were signed by the health care provider and the claimant as required by section 38(3). The claimant argued that the first time the insurer raised the issue of non-compliance with section 38(3) was in its written hearing submissions and the insurer’s denial letters did not raise the issue of the OCF-18s being unsigned. Adjudicator Lake found that if the insurer was not consenting to an unsigned copy of the OCF-18 being received through HCAI and wanted to view the executed hardcopy on file at the clinic, it was incumbent upon the insurer to request a copy of the OCF-18 upon receipt of the electronic version through HCAI. The insurer’s decision to first raise the issue in its written submissions was inappropriate. Adjudicator Lake found that further massage therapy was reasonable, but the remainder of the claims were not proven.