The claimant appealed and sought judicial review in relation to five LAT decisions. The accident that gave rise to the claims occurred in 2007. The issues in dispute in the LAT hearings included the limitation period and entitlement to IRBs and medical benefits. The Court examined whether the LAT decisions disclosed an error of law, were unreasonable, or were rendered in a manner that breached procedural fairness. The appeals and judicial review applications were dismissed.
The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.
The claimant appealed the Tribunal’s dismissal of her claim for a catastrophic impairment designation and various treatment plans. The Court dismissed the appeal, finding that there was no merit to the claimant’s arguments. The claimant had not been denied procedural fairness, and had been provided with all documentation referred to during the hearing. The Tribunal’s findings of fact were based on the ample evidence before it, as was the conclusion that the claimant’s impairments were largely a result of pre-existing conditions.
The claimant appealed the Tribunal’s decision that she was failed to attend an IE in relation to a claimed prescription expense. The claimant argued that the SABS does not permit an IE in relation to prescriptions. The Divisional Court granted the appeal, holding that only items required to be submitted on a treatment plan could be referred to IE. Items permitted to be submitted by way of OCF-6 could not be assessed at an IE. The Court also held that the $250 threshold referred to in section 38(2) did not apply to prescription. Rather, it only applied to “goods with a cost of $250 or less per item.” The Court wrote that the adjudicator ought to have followed the FSCO decision in Ward v. State Farm, which was persuasive authority for the claimant’s position.
The claimant applied to the LAT for a catastrophic impairment designation and the cost of a private addiction treatment centre. The claimant suffered injuries from an accident that culminated in him being prescribed increasingly higher amounts of morphine to relieve his accident-related back pain. At some point, the claimant’s historic substance abuse issues, which were dormant for many years, had resurfaced and he relapsed. The claimant subsequently turned to illicit drugs to cope with his pain and stress. He was diagnosed with polysubstance abuse disorder, depression and somatic symptom disorder. While the claimant was on a positive trajectory after completing an in-patient drug treatment program, he eventually relapsed while battling cancer and passed away shortly after the LAT hearing . Given that the claimant passed away shortly after the LAT hearing, the question of catastrophic impairment was rendered moot. The sole issue remaining was whether the claimant’s attendance at the private addiction treatment centre was reasonable and necessary. Adjudicator Norris considered whether the accident caused the claimant to experience depression, somatic symptom disorder and to relapse into polysubstance disorder. Adjudicator Norris held that the accident need not be the sole cause of the claimant’s injuries but need only be found to be a factor that materially contributed to the injuries. Adjudicator Norris concluded that the claimant’s polysubstance use disorder was directly caused by the accident, and the in-patient treatment program was an accident-related expense. Even though the addiction treatment received by the claimant could have been covered by OHIP, Adjudicator Norris found that it was reasonable and necessary, as expert evidence revealed that the urgency of the situation required immediate treatment and certain on-site care that an OHIP-funded facility could not provide for.
The claimant was injured in a 1994 accident. She received benefit under the relevant SABS until at least 1996. In 2015, the claimant contacted the insurer and requested that her claim be re-opened as her accident-related impairments had worsened, and that she required 24-hour supervisory care. The insurer agreed that care was required, but disputed the amount of time needed for care, and the amount of the indexed attendant care benefit. The claimant also disputed entitlement to various medical benefits for physical therapy and sought a special award. Vice Chair Todd agreed with the claimant’s proposed attendant care services and accepted that the claimant required supervisory care for severe tremors that impacted her physical safety and would prevent her from engaging with her environment in an emergency. Vice Chair Todd also awarded all the disputed treatment plans for the deteriorating physical condition the claimant demonstrated. Finally, Vice Chair Todd granted a 50 percent special award on ACBs and medical benefits, holding that the insurer’s decision to challenge the cause of the claimant’s injuries only upon re-opening the claim in 2015 (and not at any point during the original adjusting of the claim in the 1990s). The insurer’s behaviour suggested that it did not review the medical records on file from the 1990s. Additionally, the insurer took four years to fully investigate and respond to the 2015 request to re-open the claim.
The claimant disputed entitlement to a chronic pain assessment and a psychological assessment. The claimant argued that in denying these plans, the insurer did not specify a medical basis for the denial or request further medical documentation from the claimant. The claimant further contended that the insurer failed to provide a medical ground for maintaining the MIG designation of the claimant, and that, regardless of whether the proposed treatment plans were deemed reasonable and necessary, sections 38(8) and 38(11) of the SABS preclude the insurer from maintaining such designation. The insurer argued that, contrary to section 33.1(1) of the SABS, the claimant failed to provide her family doctor’s CNRs in support of her proposed OCF-18s as requested until approximately two years after the accident. Furthermore, the insurer submitted that sections 38(8) and 38(11) of the SABS were fulfilled by its request for the CNRs. Adjudicator Roswell preferred the insurer’s argument, holding that insurers have the right to reject treatment and assessment plans during the time when a claimant is eligible for goods and services under the MIG where the claimant submits requested medical information past the deadline specified in the SABS and does not exhaust the MIG. A medical basis is only a prerequisite for an insurer’s denial of proposed OCF-18s where the relevant medical records are produced by the claimant in the time frame prescribed by 33.1(1) of the SABS, which the claimant failed to do. Adjudicator Roswell also noted that, under s.38(6) of the SABS, the insurer’s decision to refuse a treatment and assessment plan under s. 38(5) is final and cannot be reviewed. Therefore, Adjudicator Roswell found that the insurer’s denial notice was sufficient. In addition, Adjudicator Roswell held that the claimant’s pre-existing psychological conditions, evidenced in the CNRs, constituted evidence sufficient to remove the claimant from the MIG.
The claimant appealed the Tribunal’s decision that she was not entitled to various medical benefits. The claimant argued that the Tribunal’s refusal to convert the videoconference hearing to a written hearing was a breach of procedural fairness and natural justice. The claimant’s counsel had argued that the claimant was unable to participate in the hearing due to psychological injuries, but provided no evidence in support of the motion. The Tribunal rejected the motion and the matter proceeded by videoconference, and the claimant called no evidence. The Court rejected the appeal, holding that the Tribunal’s processes were fair and the decision to proceed with the videoconference was not a breach of procedural fairness or natural justice. The claimant was given the opportunity to make submissions on the motion and the Tribunal provided written reasons for its decision. The Court also rejected the argument that the adjudicator was biased.
The claimant applied to the LAT for a catastrophic impairment designation under Criteria 8. She had already exhausted her $65,000 non-CAT policy limit. The claimant bore the onus of proving on a balance of probabilities that she had a “Marked” or Class 4 impairment in at least three of the four domains set out in the AMA Guides. Adjudicator Forbes noted that a “Marked” impairment sufficient for a CAT designation requires the claimant to show that their impairments “significantly impede useful functioning.” In conducting this analysis, Adjudicator Forbes emphasized that it was crucial that the claimant’s pre- and post-accident functions be accounted for based on the available medical and documentary evidence. Adjudicator Forbes found that the medical and documentary evidence showed that the claimant had pre-existing limitations on her daily life before the accident, which were not significantly impeded by the accident, and that the claimant’s post-accident condition showed signs of improvement. Adjudicator Forbes held that the presence of “some” post-accident limitations on a claimant’s useful functioning does not rise to the high bar of significantly impeded useful functioning. As a result, the claimant was not deemed CAT and no further medical/rehabilitation benefits were payable.
The claimant disputed entitlement to vocational/academic training services, a mattress, a massage chair, and a Stairmaster. The Tribunal found that the claimant did not meet the burden of proving that the disputed benefits were reasonable and necessary. Despite recommendations from occupational therapists and physicians, there was a lack of supporting medical evidence to justify the proposed treatment plans. The appeal was dismissed.
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Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP