P.S. v. Allstate Insurance (18-012633)

The claimant was seriously injured in a 2013 accident and sought a determination that he suffered a catastrophic impairment due to a combined WPI of 55 percent. He also sought entitlement to three treatment plans for further physiotherapy and psychotherapy. The claimant suffered from chronic pain and abused opioids as a result of his injuries. He also suffered cognitive issues from a traumatic brain injury. The claimant was unable to work as a result of these effects. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment. There was agreement between the parties that the claimant’s physical injuries had a total WPI of 17 percent. The disagreement focused on the neuropsychological impairment, psychological impairment, and equivalent WPI. Adjudicator Hines accepted the claimant’s expert’s opinion that impairment existed under Table 2 of Chapter 4 (neurocognitive), but did not agree with applying the high end of the range (14 percent). She was critical of the executive summary physician applying the WPI rather than the claimant’s neuropsychologist. She accepted the evidence from the neuropsychologist’s expert testimony that she would have given a rating of 12 percent WPI. With regard to psychological impairment, the claimant was diagnosed with major depressive disorder, and somatic symptom disorder. None of the claimant’s assessors or the insurer’s assessors found any Class 4 Marked Impairments. Both assessors agreed that there were Class 3 Moderate Impairments in Activities of Daily Living, and Adaptation. The differences of opinion existed with regard to Social Functioning, and Concentration, Persistence, and Pace. Adjudicator Hines accepted the opinions of the claimant’s expert who rated him Class 3 Moderate Impairment in both of these spheres of function. In order to convert the rating into a WPI, the claimant’s expert argued that a range of 30 to 40 percent WPI was appropriate by using a GAF score of 45 to 50. The insurer’s expert, who found slightly lower impairment in the two disputed spheres of function, opined that the claimant’s GAF was 54 to 56, which he converted into 21 to 24 percent WPI. Adjudicator Hines was critical of the range provided by the claimant’s expert, and noted that despite no findings of Class 4 Marked Impairments, the WPI range was equivalent to such. She was again critical of the claimant’s psychologist leaving it to the executive summary physician to provide the WPI range. She concluded that the appropriate WPI was 29 percent, based on the insurer’s expert’s testimony that all four Class 3 Moderate Impairments would not exceed that number. The total WPI was 48 percent, which was insufficient to be deemed a catastrophic impairment. However, Adjudicator Hines did award all three claimed treatment plans based on the claimant’s ongoing impairments and the coping and relief the treatment provided. The adjudicator noted that the insurer was only responsible for payment on the treatment plans up to the remaining medical benefits limits of $50,000.

B.M. v. Unica Insurance Inc. (19-009381)

The claimant sought entitlement to two medical benefits for physiotherapy and occupational therapy services. The claimant had a significant pre-accident medical history that included a workplace accident, two separate motor vehicle accidents in 2013, chronic lumbar radiculopathy, and chronic lower back pain. He was also involved in a subsequent motor vehicle accident in 2016 after the subject accident. The insurer argued that the disputed treatment plans fail the test for causation. The claimant submitted the disputed treatment plans shortly after the 2016 accident. The insurer argued that the claimant ought to have commenced an accident benefits claim in relation to that loss. The claimant argued that the accident need not be the sole cause of the injuries in order to meet the “but for” test as established in Sabadash v. State Farm. Vice Chair McGee found that the subject accident met this threshold and deemed the two treatment plans to be reasonable and necessary. An issue was also raised as to whether the insurer satisfied the IE notice requirements in section 44(5) of the Schedule. The insurer sent IE notices to the claimant, but omitted crucial information as to the reasons for the sought examination. The notices simply stated “Rescheduled assessment” and “RESCHEDULED” as the reasons. Vice Chair McGee found that the insurer’s notice was patently deficient. Neither of the IE notices provided comprehensible “medical or other reasons” for the requested examinations. She reasoned that an insured person should not be expected to piece together “medical or other reasons” for an examination from disparate notices and correspondence or to advise an insurer of deficiencies in those notices so they may be corrected. Vice Chair McGee concluded that the appropriate remedy was the exclusion of the IE reports.

Marca v. Aviva Insurance Company (19-004839)

The claimant sought entitlement to NEBs, a medical benefit for physiotherapy services, interest on overdue payment of benefits, and an award. The claimant argued that she had partially resumed some activities post-accident but not at all. The claimant also argued that even though she had returned partially to her personal care, she experienced pain when performing these activities. Adjudicator Farlam found that the claimant was not entitled to an NEB for a number of reasons. The first was that the claimant’s self-reporting of her post-accident capabilities in the OCF-12 did not establish a complete inability to carry on a normal life as a result of the accident. The claimant indicated that she could “partially” do all of her pre-accident activities except washing floors, sewing, dancing and dance instructing. The Disability Certificate was given little weight given the lack of detail and explanation that the disability was temporary. The rest of the records put forward did not establish that the claimant was completely unable to carry on a normal life and only showed minor injuries. With respect to the disputed treatment plan, the claimant submitted that the treatment plan was reasonable and necessary to deal with her pain, help regain strength and improve her range of motion. The insurer argued that the treatment plan was not reasonable and necessary because the claimant, by having already received rehabilitation treatment, had achieved the plan’s proposed goals. Adjudicator Farlam found that the disputed treatment plan was reasonable and necessary, in part. The claimant had experienced enough improvement as a result of this treatment that it was reasonable and necessary to allow her treatment to be continued and the overall costs of achieving her goals was reasonable. However, Adjudicator Farlam agreed that the insurer was not required to pay for the assessment and two treatment sessions that were incurred before the plan was submitted.

P.M. v. Aviva General Insurance (19-002717)

The claimant sought removal from the MIG and entitlement to medical benefits for physiotherapy, massage therapy as well as the cost of psychological and physiatry assessments, and completion of an OCF-3. The claimant also sought a special award. Adjudicator Lake found the claimant’s injuries were outside of the MIG due to her chronic pain, but held she was only entitled to medical benefits for physical treatment and the cost of the psychology assessment. Adjudicator Lake also considered the claimant’s section 38 denials of benefits, and held that there were deficiencies. The insurer referred to the $3,500 funding limit under the MIG and enclosed portions of the SABS relating to the MIG, but did not advise the claimant that the MIG applied to her accident related impairments. Further, the insurer never cured the deficient notices, so benefits were payable if incurred more than 10 business days after submission. She also rejected the argument that benefits had to be incurred to be payable under section 38(11), as the section only said that benefits had to “related to” the period of non-compliance, not that they needed to be incurred. Adjudicator Lake rejected the special award claim, reasoning that the insurer’s failure to comply with its obligations under section 38 of the SABS did not amount to an unreasonable withholding or delay in payment of benefits.

J.C. v. Aviva General Insurance Company (19-004734)

The claimant sought entitlement to various medical benefits, including medical cannabis, physical treatment, and a chronic pain program. The insurer argued that the claimant could not dispute two of the treatment plans due to IE non-attendance. The claimant responded that it wasn’t reasonable to request a psychiatric assessment for the medical cannabis. Adjudicator Johal found the insurer’s IE notice complied with section 44, and rejected the claimant’s argument that the IE request was not reasonable. The claimant was therefore barred from disputing the two treatment plans due to section 55. With regard to the remaining treatment plans, Adjudicator Johal held that the claimant failed to prove that the proposed treatments were reasonable and necessary, and dismissed the claims.

G.R. v. Aviva General Insurance Company (18-004375)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision awarding seven medical benefits, denying attendant care expenses, and granting a special award on a functional impairment assessment, which had been deemed incurred. The claimant argued that ACBs should have been awarded and should have been deemed incurred under section 3(8). Adjudicator Mazerolle rejected the claimant’s reconsideration request holding that the claimant had not incurred any ACBs, and that the Tribunal made no error in not deeming the expenses incurred. He also rejected the argument that McMichael v. Belair applied, reasoning that it was decided under an earlier version of the SABS that did not require attendant care services to be incurred. Adjudicator Mazerolle granted the insurer’s reconsideration request in relation to the functional impairment assessment. He accepted that the insurer was not given an opportunity to respond to the argument that it should be deemed incurred under section 3(8). He requested that both parties make submissions on whether the insurer’s unreasonable withholding or delay in payment of the functional impairment led the claimant not to incur the expense.

B.S. v. Aviva Insurance Canada (19-001828)

The claimant sought removal from the MIG and entitlement to physiotherapy and two assessments. Adjudicator Maleki-Yazdi found that the claimant’s injuries fell outside of the MIG and that the claimant was entitled to all three treatment plans. Additionally, she concluded that the insurer’s section 38 notices were deficient. All three denials were similarly worded and simply stated that there was no “compelling evidence that shows that your injuries do not fall within the Minor Injury Guideline.” No further details regarding the “compelling evidence” was provided. The adjudicator held that the denials were vague and did not provide the claimant with meaningful explanation for the denials to allow her to make an informed decision about whether to accept or dispute the decision. Subsequent denials following the IEs did provide meaningful explanation, but the insurer would have been required to pay for all incurred treatment up to the date of the proper denial.

D.L. v. Aviva Insurance Canada (19-001860)

The claimant sought entitlement to CAT assessments totalling more than $26,000, as well as four treatment plans for passive physical therapy, and a psychological assessment. Vice Chair Farlam rejected the claims. While accepting that assessments are speculative in nature, the claimant failed to prove that there was any reasonable basis to investigate whether the he was catastrophically impaired. There was insufficient objective evidence to suggest a WPI of 55 percent or a marked impairment in three or more areas of function. Vice Chair Farlam noted that by the time the claimant had proposed the CAT assessments he was working, doing child care, exercising at the gym, doing home renovations, and was not using prescription medications. For similar reasons, the claimed physical therapy and psychological assessment were denied.

R.T. v. Aviva General Insurance (19-007347)

The claimant sought entitlement to IRBs and further physiotherapy treatment. Adjudicator Watt dismissed both claims. He held that the claimant failed to submit evidence that would prove that pain prevented her from returning to work. He also noted that the claimant was self-limiting in assessments and that objective testing showed full ranges of motion. The proposed treatment plan did not comment on why further passive therapy was required, or what relief may result from further treatment. The claimant was found to have met maximal medical recovery from such treatment.

F.C. v. Aviva Insurance Canada (18-001359)

The insurer sought reconsideration of the Tribunal’s decision awarding NEBs and a treatment plan for failure to comply with sections 36 and 38, respectively. Adjudicator Boyce dismissed the reconsideration. He held that Stranges v Allstate was not good law in relation to the current version of the SABS, which required payment of NEBs until a proper denial is given to the claimant. He also rejected that the Tribunal should apply section 7 of the LAT Act in the insurer’s favour to cure the lack of NEBs denial.