Category: Medical Benefits

Mensah v Co-operators General Insurance Company (24-014094)

The claimant was involved in an automobile accident in February 2022. She applied to the LAT seeking CAT determination under Criterion 8 and entitlement to IRBs, ACBs, and numerous medical benefits. The claimant brought a motion to exclude the surveillance evidence because the respondent did not comply with the case conference order to disclose the investigator’s handwritten notes, the surveillance agreement between the respondent and the investigation company, all communications between the investigator and the respondent, invoices, and unredacted adjuster log notes that relate to surveillance. The LAT found that the surveillance evidence was admissible because of the probative nature of the evidence. The LAT found that the claimant was not CAT and not entitled to the majority of the issues in dispute.

Bartok v Intact Insurance Company (24-003081)

In August 2023, the claimant was involved in an incident while operating a Boomer Beast 2 D Deluxe electric three-wheeled vehicle. The vehicle “spontaneously broke” and caused the claimant to fall onto the roadway and sustain injuries. The preliminary issue in dispute at the LAT was whether the claimant was involved in an “accident” as defined by the SABS. The first part of the three-part test to address this issue, pursuant to Adams v. Pineland (2007 ONCA 844), is to determine whether the involved vehicle is an “automobile” in ordinary parlance. The LAT considered the characteristics of the vehicle and determined that it was an “automobile”, and the claimant was involved in an “accident” as defined by the SABS. Among other things, Adjudicator Levitsky noted: (1) it has a seat with a back, handlebars, a headlight, and brake lights; (2) its maximum speed is approximately 40 km/hr, and it is equipped with a speedometer; and (3) the purpose and function of the Boomer Beast is for it to be used on-road and off-road. Adjudicator Levitsky stated: “given the features indicated above, I am not persuaded that the Boomer Beast fits neatly into the category of mobility scooter.” Adjudicator Levitsky concluded: “I find that the Boomer Beast was designed for and is capable of the transportation of passengers on streets and highways. Applying Grummett, I find that the Boomer Beast is accordingly an “automobile” in ordinary parlance, and the applicant was accordingly involved in an “accident” pursuant to s. 3(1) of the Schedule.” With regards to medical benefits, the LAT found the claimant, who would be outside of the MIG due to a fracture, was not entitled to the disputed attendant care assessment. Adjudicator Levitsky stated: “I am not satisfied by the applicant’s argument that an insured person is automatically entitled to an attendant care assessment so long as they have sustained an injury that is not minor. In my view, the applicant has the onus of proving, on a balance of probabilities, that the fees charged are reasonable, and that an assessment is necessary for the preparation of an attendant care needs form.”

Hou v Aviva General Insurance Company (25-000946)

The claimant was involved in an automobile accident in August 2023. He applied to the LAT to dispute IRB quantum and entitlement to medical benefits and a special award. The LAT found that the IRB quantum calculated by the insurer was correct as it was based on the self-employed claimant’s income in the last fiscal year. The LAT found that IRBs were not payable for the period prior to submission of an OCF-3, and also not payable for the period in which the claimant failed to comply with s. 33 requests for documents that were reasonably required to assess entitlement to IRBs. S. 33 suspensions of benefits were not upheld for periods related to requests that were not considered reasonable. The claimant was found to be entitled to part of the balance of an OCF-18 that was partially approved up to the MIG limits, but the LAT found that the amount proposed for a re-assessment was not reasonable and necessary. The LAT found that the claimant was entitled to a special award as the insurer unreasonably delayed approval and payment of IRBs

Jendrika v. Intact Insurance Company (2025 ONSC 652)

The claimant appealed the Tribunal’s decision that she was not entitled to IRBs or disputed medical benefits. The Court dismissed the appeal, holding that there was no procedural unfairness in conducting a written hearing, and that the claimant’s appeal was largely based on disagreement on the weight to be given to the evidence and expert opinions. Neither party made submissions regarding the MIG, so the adjudicator was entitled to conclude that it was not an issue in dispute. Finally, the Tribunal applied the correct test for pre-104 week and post-104 week IRBs.

Bailey v Traders General Insurance Company (24-003141)

The claimant was involved in an automobile accident in July 2020. She applied to the LAT seeking entitlement to IRBs and medical benefits. With regards to IRBs, the parties disagreed over the period when the “complete inability” standard comes into effect. The claimant argued that the wording “104 weeks of disability” means that this standard does not apply until an insured person has had a cumulative period of 104 weeks at the “substantial inability” standard. Since the applicant returned to her pre-accident role for a period following the accident, she argued that the nine-week period at issue remained within “the first 104 weeks of disability”. As such, the “substantial inability” standard would apply. The respondent disagreed, arguing that the stricter standard comes into effect once 104 weeks have elapsed since the accident. The LAT agreed with the respondent and found that the “complete inability” standard comes into effect 104 weeks after the accident.

Landa v. The Dominion of Canada General Insurance Company (498/21; 152/22; 396/23; 397/23)

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.

Laljee v. Aviva General Insurance Company (2024 ONSC 2577)

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.

Atkinson v. Economical Mutual Insurance Company (22-002008)

The claimant sustained a non-catastrophic impairment and applied to the Licence Appeal Tribunal (“LAT”) to dispute entitlement to attendant care benefits (“ACB”), medical benefits, housekeeping expenses, and occupational therapy services. Regarding the ACB claim, Adjudicator Forbes found that the claimant was not entitled to the claimed amount of $10,228.37 per month. Instead, Adjudicator Forbes accepted the respondent’s recommendation, concluding that the approved rate of $1,509.99 per week was reasonable and necessary. The claimant also sought reimbursement for ACBs in the amounts of $216.96 and $289.28 for November and December 2021, respectively. However, she failed to provide a detailed breakdown of the services rendered or the hours billed for those periods. As a result, it was not possible to determine the level of care provided or assess the appropriate payment amounts. In the absence of sufficient particulars, Adjudicator Forbes found that the circumstances warranted applying the “ratio method” outlined in Malitskiy v. Unica Insurance Inc., 2023 ONSC. Relying on the recommendations in the s. 44 Form 1, Adjudicator Forbes concluded that the claimant was entitled to $85.61 for November 2021 and $114.15 for December 2021 in ACBs. Since these amounts had already been paid by the respondent, no further amount was owed to the claimant for those periods.

Joaquim v. Intact Insurance Company (2023 ONSC 5120)

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.

Ossipova v. BelairDirect Insurance Company (21-001405)

The claimant applied to the LAT for the balance of various partially approved medical benefits. The insurer’s denials were almost entirely based on the position that the claimant sought rates in excess of the rates authorized in the Professional Services Guideline. In addition, the insurer had approved 1-hour sessions for psychological therapy, rather than the 1.5 hour-sessions that had been proposed. Adjudicator Todd found that $200 was payable for completion of OCF-3s and OCF-18s. $80 per hour was found payable for osteopathic therapy, which was less than the $150 proposed and more than the $58.19 initially paid based on the Guideline rate for unregulated providers. Adjudicator Todd found that 1.5-hour therapy sessions were reasonable.

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