Chen v. Chubb Insurance Company of Canada (19-008582)

The claimant disputed her entitlement to NEBs, three medical benefits for treatment, and an attendant care assessment. Adjudicator Grant dismissed all of the claims. He found that the claimant was not prevented from engaging in substantially all of the activities in which she ordinarily had prior to the accident. The claimant had not provided a comparison of her pre- and post-accident activities, specifically on the amount of time spent on said activities, as well as the value and importance placed on each. The adjudicator also noted that the claimant had not provided any affidavits or oral evidence to speak to the Heath v Economical factors, and as such he only had the claimant’s assertions in the written submissions to rely on. Similarly, the claimant’s evidence did not support the need for further treatment, and the IE doctors had concluded that the claimant had reached maximum medical recovery. Finally, the attendant care assessment was not reasonable and necessary because the claimant had reported being independent with self-care.

Berisha v. Certas Home and Auto Insurance Company (19-012869)

The claimant sought entitlement to medical benefits and interest. The claimant had earlier been accepted as catastrophically impaired. The insurer disputed the overall costs of assessments, which it had partially approved. Vice Chair Boyce concluded the claimant was not entitled to any of the partially denied assessments. The claimant claimed entitlement to the assessor’s denied travel expenses for an in-home assessment. The insurer argued that pursuant to s.25(4) it was not liable to pay more than $2,000 for fees and expenses on any one assessment and the claimant bore the burden to prove the cost was reasonable and necessary. The claimant argued that she lived in a rural area, which justified the travel cost. Vice Chair Boyce agreed that the insurer was not obligated to pay for the provider’s travel expenses in addition to the $2,000 cap under s.25(5)(a), which was already included in the capped fee amount. No evidence was provided to show the provider was unwilling to travel if her travel expenses were not paid. The claimant also claimed entitlement to full payment for a neuropsychological CAT assessment. The insurer denied payment of the clinical file review claim in the amount of $2,000 based on s.25(5)(a) limit that includes a file review. The claimant submitted that the assessment had two components: psychological and neurological. The neurological assessment proposed was two separate assessments conducted by one assessor. Vice Chair Boyce agreed that the individual assessments were capped at $2,000 and the cost of the neuropsychological assessment at $5,500 more than the other assessments was not reasonable or necessary. The Tribunal had consistently found file reviews necessarily formed part of conducting an assessment and was not separate from the $2,000 payment. The claimant further claimed a remaining $2,000 for a neuropsychological assessment. The insurer again denied payment on the basis of s.25(5)(a) and argued that the claimant had attempted to skirt the s.25(5)(a) fee limit for assessments by intentionally separating the assessments into psychological and neuro-cognitive assessments to get two separate $2,000 payments. The OCF-18 provided the same descriptions and codes on the OCF-18 for both assessments. Vice Chair Boyce found the claimant had not demonstrated the reasonableness of the unapproved portion of the OCF-18.

Salim v. Aviva General Insurance (19-006944)

The claimant was involved in a serious accident. He was skateboarding and was hit by a vehicle and suffered nasal, left elbow, pelvic, and sacral fractures, and psychological injuries. The claimant applied to the LAT disputing entitlement to NEBs, ACBs, and the full cost of partially approved medical benefits. Adjudicator Farlam dismissed the claimant’s dispute in its entirety. With respect to NEBs, Adjudicator Farlam noted that the claimant travelled post-accident, resumed full-time education, and resumed his participation in sports including judo and wrestling. Adjudicator Farlam held that while the claimant required help with some self-care tasks and had ongoing physical and psychological limitations, he did not meet the NEBs disability test. With respect to ACBs, Adjudicator Farlam noted that the claimant reported that his family cared from him. However, the claimant did not submit proof of incurred expenses nor economic loss. Adjudicator Farlam noted that the claimant did not submit OCF-6s, receipts, invoices, or any other proof of incurred benefits. Adjudicator Farlam dismissed the claimant’s submissions that ACBs be “deemed incurred” as he did not believe that ACBs were reasonable and necessary in light of the 8 month delay in submitting a Form 1. With respect to the disputed medical benefits, Adjudicator Farlam opined that the claimant had not proven that the balance of the treatment plans were reasonable or necessary.

Rattan v. Aviva Insurance Company (19-006304)

The claimant applied to the LAT disputing his entitlement to three medical benefits and interest. The insurer argued that the doctrine of res judicata prevented the claimant from re-litigating his entitlement to two of the disputed benefits, which the LAT had dismissed in a previous decision. Adjudicator Grant agreed with the insurer that res judicata applied as entitlement to the two disputed treatment plans had been adjudicated on the merits and the claimant was attempting to re-litigate a final decision of the LAT. With respect to the third medical benefit, Adjudicator Grant dismissed the claim noting that he preferred the evidence of the IE orthopaedic surgeon to that of the claimant’s family physician with respect to whether further treatment was reasonable and necessary. Adjudicator Grant held that the family physician’s diagnosis was based solely on the claimant’s subjective reports whereas the IE orthopaedic surgeon completed a thorough physical examination and his objective findings were that the claimant did not suffer an impairment warranting further treatment.

R.J. v. Certas Direct Insurance Company (19-009603)

The claimant sought payment for a housing accessibility assessment in excess of the $2,000 approved by the insurer, and sought a special award on cognitive training sessions that had been denied in 2017 but approved shortly before the hearing. Adjudicator Grant held that the $2,000 limit for assessments in section 25 applied to housing accessibility assessments, and that there was no carve out created by any Guidelines. He granted a special award of $200 on the cognitive training because the insurer had approved it shortly before the hearing, and had approved a similar treatment plan only months after denial of the subject treatment plan. The insurer had not set out a clear rationale for refusing the denied fees in the first place, and its approval of similar fees a few months later suggested that the fees were reasonable and necessary.

Nijjar v. Pembridge Insurance Company (19-011065)

The claimant disputed his entitlement to IRBs for an 18 month period and interest on medical benefits that had been resolved. Adjudicator Lake dismissed the claim for IRBs. She placed little weight on a “Physical Description of Job” sheet and a job description attached to an employer’s confirmation form that indicated a physically demanding job, because of contradictory findings. For example, the claimant had reported during IEs that his job was not heavy but required extended standing. The Adjudicator was unable to clearly determine the claimant’s job title or duties, and as such was unable to determine which job duties he was unable to perform. Interest was awarded on the two medical benefits from the date they were incurred. She dismissed the argument that interest should not be payable until the date that the claimant submitted requested medical records from his family doctor.

C.M. v. Intact Insurance Company (18-008995)

This is a reconsideration decision of Adjudicator Manigat. The insurer sought reconsideration of Adjudicator Manigat’s initial decision wherein she found that the claimant was entitled to the balance of a psychological treatment plan in the amount of $887.93 plus interest. The insurer submitted that the Tribunal considered the wrong issue in dispute and did not consider the issues stated in the Case Conference Report and Order. Adjudicator Manigat referred to a transcript of the hearing wherein she restated the issues in dispute and noted that the insurer did not object to these issues, despite the fact they were different than stated in the Case Conference Order. Therefore, Adjudicator Manigat held that the issues in dispute that she considered were correct, as proven by the transcript of the hearing. However, Adjudicator Manigat agreed with the insurer that she failed to consider all of the evidence before her with respect to the treatment plan. Adjudicator Manigat reviewed the evidence and agreed that the claimant failed to provide sufficient evidence that she required the balance of the disputed treatment plan. Adjudicator Manigat therefore granted the insurer’s request for reconsideration and varied the original decision.

Mattina v. Federated Insurance Company of Canada (19-011267)

The claimant sought entitlement to a treatment plan for physiotherapy. The insurer argued that it was not liable to pay the disputed treatment plan because it was not signed by the claimant or a health care professional as required by section 38(3). The insurer had not raised the issue of noncompliance with section 38(3) in its two Explanation of Benefits issued to the claimant regarding the disputed treatment plan. Adjudicator Lake found that if the insurer was not consenting to an unsigned copy of the treatment plan 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 upon receipt of the electronic version. Further, Adjudicator Lake wrote that the insurer’s failure to only raise the issue at this late stage of the proceeding was inappropriate. She concluded there was no breach of section 38(3). The claimant argued that the insurer failed to comply with its obligations under section 38(8), as it provided no medical reasons for its denial of the disputed treatment plan. The insurer provided two OCF-9s that simply indicated the treatment plan was not reasonable and necessary. Adjudicator Lake determined that these reasons did not discharge the insurer’s obligations under section 38(8) as neither denial provided any details regarding the claimant’s condition that formed the basis of the insurer’s decision. The treatment plan was payable starting on the 11th business day after the insurer received the treatment plan.

Lin v. Aviva Insurance Canada (19-006064)

The claimant sought to IRBs and further chiropractic treatment. The insurer raised a preliminary issue that the claimant improperly relied on three exhibits that were not previously served on the insurer and sought to have them struck. Adjudicator Norris agreed holding that the claimant failed to submit evidence to prove that the documents were previously disclosed or to explain the failure to properly disclose them. With respect to IRBs, the insurer paid the benefit until May 27, 2018, when it concluded that the claimant no longer qualified. The adjudicator agreed with the insurer’s decision, stating that the claimant failed to provide evidence that any of her healthcare professionals recommended that she refrain from her pre-accident employment as a supermarket cashier. Finally, the adjudicator found that the treatment plan for chiropractic treatment was not reasonable and necessary because the family physician’s treatment recommendations were untimely and there were no treatment records showing how or if the claimant benefitted from the treatment. The claimant’s family physician made no clear recommendations for the claimant to continue with treatment during the period leading up to and around the submission of the treatment plan.

B.M. v. Aviva Insurance Company (18-009572)

The claimant disputed entitlement to three treatment plans for physiotherapy and chiropractic services, and a special award. Both parties raised preliminary issues at the hearing: the claimant alleged that the insurer failed to give appropriate notice under section 38, while the insurer alleged that the claimant failed to comply with the Tribunal’s rules of disclosure when he introduced both an affidavit from himself and a written statement from his treating physiotherapist in his hearing submissions without prior notice. Vice-Chair White allowed the additional evidence submitted by the claimant, noting that the Order of Adjudicator John was “overly broad” and its only direction regarding disclosure and deadlines noted that no new evidence could be submitted after the date of the hearing. As the evidence was provided on the date of the hearing, it was allowed. Vice-Chair White ruled that the insurer did not comply with section 38 in relation to two of the disputed treatment plans, as the denial letters were insufficient in their language and medical and other reasons for the denial. The services incurred between the 11th business day and the date of the final (compliant) denial were found payable. The third disputed treatment plan was found not payable based on the chiropractic IE. Although a special award was requested in the Case Conference Order, the claimant did not raise the issue within the pleadings submitted, and as such, it was not considered.