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As a preliminary matter, the parties’ submissions refer to a disagreement over whether the psychological assessment was withdrawn with prejudice by the claimant at a previous case conference in an earlier Tribunal matter.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.

The claimant sought entitlement to two medical benefits for chiropractic treatment and interest. In addition to the two treatment plans that the parties agreed would be addressed in the written hearing, the claimant’s initial submissions addressed a number of new issues that were not contained in his application to the Tribunal, that were not raised or addressed at the case conference and were not confirmed in the Case Conference Order as being properly in dispute. The claimant also filed a Notice of Motion with the Tribunal seeking to add 15 additional issues or amendments to the written hearing, the bulk of which were those addressed in his initial submissions but were not captured by the Case Conference Order or addressed by the insurer in its response. Adjudicator Boyce noted that granting the claimant’s request to add additional issues at this stage in the proceeding would be procedurally and substantively unfair to the insurer and would not result in a fair and open process. Accordingly, the claimant’s motion was dismissed without prejudice, as these issues and sub-issues would require a fresh application in order to proceed properly and fairly and in order to afford the insurer the requisite amount of procedural fairness. With respect to the medical benefits, the claimant submitted that because he was not aware of the insurer’s denial of the treatments he incurred in this current dispute he continued to submit expenses via OCF-6 and not via the requested OCF-18 treatment plans. Adjudicator Boyce held that section 38(2) was triggered because the claimant incurred all of the chiropractic treatment prior to submission of the treatment plans in dispute. The adjudicator agreed that none of the section 38(2) exceptions applied to the claimant’s case and held that there was no issues with any of the insurer’s denial notices, with its adjusting of the claimant’s claims or its reliance on IEs.