Kyrylenko v. Aviva Insurance Canada (2021 ONSC 4929)

The claimant appealed the Tribunal’s decision that he was not entitled to payment for benefits related to two treatment plans that the insurer had failed to respond to within 10 business days. Despite the language of section 38(11), the Tribunal considered whether the medical benefits were reasonable and necessary, and whether the MIG applied and barred entitlement to the claimed in-home assessment. The Divisional Court granted the appeal and held that the insurer was liable for all amounts on the treatment plans related to the 11th business day onwards until the treatment plan was properly denied. The Tribunal erred in considering the “”reasonable and necessary”” test for the entitlement when section 38(11) applied, and the Tribunal erred in considering the prohibition on in-home assessments under section 25(2) for MIG claims, given that section 38(11) required payment. The Court ordered the insurer to pay the treatment amounts that relate to the period after the 11th business day following submission of the treatment plan. The Court returned to matter to the Tribunal for a decision on the claim for a special award.

Mohamud v. Certas Home and Auto Insurance Company (19-005153)

The claimant disputed entitlement to four treatment plans for various assessments and assistive devices, and a special award. The insurer raised a preliminary issue, claiming that the disputed dental assessment was barred by the limitation period. The insurer denied the plan on April 6, 2017, provided a clear and unequivocal denial and warned of the two-year limitation period. The claimant argued that the limitation clock did not begin until July 26, 2017, when the insurer sent a letter partially approving other dental procedures and noting that it “will not pay for any treatment that it had not authorized.” Adjudicator Lake ruled in the insurer’s favour, noting that the April 2017 denial was clear and provided notice of the two-year limitation. Furthermore, Adjudicator Lake noted that there was no power to extend the limitation period. Regarding the other treatment plans, the claimant requested to add additional evidence in the form of clinical notes and records. Adjudicator Lake denied the request, agreeing with the insurer that Orders should be followed. As there was no reason to why the late record could not have been produced earlier, the request was denied. Adjudicator Lake awarded the claimant part of a disputed OCF-18 for assistive devices and interest and dismissed the remainder of her claim.

Halstead v. Aviva Insurance Company (19-01394)

The claimant sought a medical benefit in the amount of $12,341.56 proposing that the insurer pay the cash difference between her old vehicle, a 2016 Volkswagen Jetta, and a new vehicle, a 2017 Hyundai Tucson, which was a larger and more spacious SUV. The claimant and her treating OT argued that the new vehicle was necessary as the claimant’s job as a coffee shop newspaper producer and distributor required her to drive to over one hundred locations in the province over the course of two days every week to deliver papers. They noted that her old vehicle was smaller and lower to the ground which caused a strain on her hips while driving, made it more difficult to get in and out of the vehicle, and that the lower trunk height caused a strain on her back. The insurer denied the treatment plan on the grounds it was not reasonable or necessary as a result of the accident. The insurer noted in its denial letter that an IE would be arranged, but did not follow-up up on this and had no competing medical opinion. The claimant ended up purchasing the Hyundai. Vice-Chair Boyce noted that the claimant submitted two reports by the OT in support of the new vehicle, an original report from 2017, and an addendum report from 2020. Both the claimant and the OT took measures to find cheaper alternatives when selecting vehicles. Because the insurer did not arrange an IE, the claimant made the decision to purchase the Hyundai after a lengthy delay as it was necessary for her continued employment. Vice-Chair Boyce ruled in the claimant’s favour and found the medical benefit payable. A special award in the amount of $1,200.00 was also granted for the insurer’s withholding and delay.

Z.K. v. Allstate Insurance Company Canada (17-006929)

The claimant sought entitlement to a catastrophic impairment designation, further chiropractic treatment, and the cost of denied neuropsychological and triage CAT assessments. Adjudicator Johal accepted that the claimant suffered three Class 4 marked impairments in each of activities of daily living; concentration, persistence, and pace; and adaptation in work or work-like settings. Prior to the accident the claimant ran a business for about twelve years, and became a licenced mortgage agent two years before the accident. He was very outgoing and social, hosted parties, and visited friends. He was healthy both physically and mentally and had no pre-accident conditions. After the accident, which was relatively minor, the claimant developed back and neck pain, and headaches. His mental functioning declined. He lost over 30 pounds, had no appetite, had poor short term memory, and needed assistance with basic personal care tasks. The claimant’s family believed he was depressed, and he reported being in frequent pain. He no longer entertained or visited friends. He did not return to work, and he rarely drove. The claimant’s neuropsychological assessor diagnosed the claimant with a severe pain disorder and moderate depressive disorder. She concluded that the claimant suffered Class 4 marked impairments in the above-noted spheres. The claimant’s psychological assessor made similar conclusions and conducted various testing to rule out malingering and feigning. Adjudicator Johal preferred the evidence of the claimant’s assessors over the IE assessors, who approached their role as a “detective” rather than neuropsychologist. The IE assessor also used testing methods that were not well peer-reviewed or had no validity measures. Adjudicator Johal denied the disputed chiropractic treatment because it was completed by a chiropractor, but largely proposed counselling and educational services, which were outside of the chiropractor’s scope of practice. The neuropsychological CAT assessment was approved, despite no evidence of head injury. Adjudicator Johal wrote that the request for an assessment was to show that there is a reasonable possibility that the claimant has the condition that is being investigated. The claimant did not need to show or prove that he had the condition in order for an assessment to be deemed reasonable and necessary. Finally, the triage CAT assessment was denied as there was no evidence presented why it would be required and what assessment of the claimant it would provide.

Viera v. Aviva General Insurance (19-007227)

The claimant sought entitlement to a chronic pain assessment, and argued that the insurer’s denial did not comply with section 38(8). Adjudicator Lake agreed that the insurer’s denial did not comply with section 38(8), as none of the denials included any specific details about the claimant’s condition forming the basis of the insurer’s decision and only generally referred to the claimant’s injuries without any details or explanation. There was also no medical reason for the denial. The final denial contained a number of grammatical errors that made it unclear to an unsophisticated person, nor did it stated that the proposed assessment was not reasonable and necessary. The special award claim was dismissed. The adjudicator held that the failure to comply with section 38(8) did not meet the burden for a special award. The insurer simply misapplied the SABS.

K.W. v. Aviva General Insurance (18-006969)

The claimant requested a reconsideration of the Tribunal’s decision denying various medical benefits and IRBs, seeking an order quashing the decision and ordering a rehearing on all parts of the matter. Adjudicator Watt dismissed the applicant’s request, noting that his decision set out the evidence, the law, and why he gave more weight to some arguments over others. He emphasized that a reconsideration is not an opportunity to re-argue positions that previously failed before the Tribunal or to have evidence re-weighed.