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.

Hutchinson v. Aviva General Insurance Company (2023 ONSC 1472)

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.

Rupani v. Travelers Insurance Company of Canada (21-004893/AABS0

The catastrophically-impaired claimant brought an application to dispute medical and housekeeping benefits. Her claim for housekeeping was denied because she was unable to establish that the workers that she hired had provided services in the scope of employment they ordinarily engaged in. Adjudicator Grant found that it was not enough for the claimant’s hired workers to have claimed to be certified professionals on Kijiji. Adjudicator Grant held that the treatment plan for an emotional support dog was denied under s. 38 because the claimant had incurred the expense prior to submitting the treatment plan. Finally, Adjudicator Grant found that the claimant’s treatment plan for lidocaine injections was not reasonable or necessary. The claimant was noted to have stated in her medical records that she did not find the injections helpful, and several of her treatment providers had opined that the injections were not reasonable or necessary.

Zhu v. The Co-operators General Insurance Company (20-012105/AABS)

The claimant applied to the LAT to dispute entitlement to NEBs, various medical benefits, and an OCF-6 for clothing and eyewear. Adjudicator Neilson found that the claimant had not established that he suffered a complete inability to return to his pre-accident life .The claimant failed to include in his submissions evidence to support his claims for clothing and eyewear. Adjudicator Neilson granted $2,594 of a denied physiotherapy treatment plan because the insurer had failed to explain why it had reduced the approved hourly rate for the treatment. She denied the remaining $1,475.48 of the treatment plan because the claimant failed to provide evidence or reasons to refute the insurer’s IE report in which the assessor recommended that the claimant engage in self-directed exercises rather than physiotherapy. The claimant first complained of back pain nearly one year after the accident. Adjudicator Neilson stated that the claimant could not establish that the back pain was caused by the accident, given the length of time between the date of the accident and the claimant’s first complaint. She denied two treatment plans for physical therapy that were proposed in July 2020, over one year after the date of the accident. Adjudicator Neilson awarded the claimant the disputed treatment plan for psychological services. The insurer had refused the treatment plan on the basis that the claimant’s psychological impairments were not a “direct result” of the accident. Adjudicator Neilson found that s. 15 of the SABS required an impairment to be “a result” of the accident and not a “direct result”.

Shaikh v. Economical Insurance Company (20-009837/AABS)

The claimant brought a LAT application to dispute NEBs and his MIG designation. Adjudicator Flude found that the claimant was not entitled to NEBs because he had failed to submit a signed application for NEBs until June 8, 2020, approximately a year after the accident of July 16, 2019. Adjudicator Flude confirmed that an application for NEBs could not be considered complete until a signed OCF-3 has been submitted. The claimant was found to be ineligible for NEBs in the period following the submission of his application because he failed to respond to a s. 33 request issued by the insurer. Adjudicator Flude also found that the claimant’s injuries fell within the MIG. The claimant had failed to report his significant pre-accident history with his medical examiners, which rendered their diagnoses regarding his impairments unreliable. The Adjudicator noted that the claimant’s medical records reflected an improvement of his symptoms from July 2019 to November 2019. He drew an adverse inference from the claimant’s failure to produce further medical records after November 2019 and opined that the records would have reflected an improvement of the claimant’s symptoms. Adjudicator Flude concluded that the claimant did not suffer from chronic pain syndrome as a result of the accident and that his injuries were minor in nature.

Han v. Wawanesa Mutual Insurance Company (21-014475)

The claimant disputed entitlement to a physiatry assessment proposed three years after the accident but which was never incurred. Because the LAT dispute would not be determined until after the expiry of the five year policy period, the insurer brought a motion arguing that the disputed assessment could not be awarded because it was not incurred within the five year policy period. Vice Chair Flude dismissed the motion, holding that the claimant’s right to payment of the assessment did not lapse as of the five year mark. Vice Chair Flude reasoned that entitlement under the SABS could not be rendered void as a result of the Tribunal’s dispute resolution timelines, and that the date of submission of the treatment plan was the relevant date to consider. The insurer could not escape liability by delays resulting from the dispute process.

Prillo v. Coseco Insurance Company (20-014401/AABS-R)

The claimant filed a request for reconsideration arising from an October 14, 2022 decision, in which Adjudicator Pahuta ruled that the claimant sustained “minor injuries” and was not entitled to further treatment outside of the MIG. The claimant filed for reconsideration under Rule 18.2 (b), alleging that Adjudicator Pahuta made an error of law or fact. The claimant also argued that they suffered from chronic pain, which would remove them from the MIG. Adjudicator Pahuta noted that the claimant’s evidence was considered in full, including the chronic pain report of Dr. Robertus, which was weighed against the overall medical evidence and family doctor records showing only minor pain complaints post-accident, with most entries being for unrelated issues. The claimant made several other allegations, including that pre-accident back pain and osteoporosis would have resulted in a MIG removal, an OCF-3 was not properly considered, and that the disputed OCF-18s were not properly viewed for necessity. Adjudicator Pahuta noted that many of these arguments were not made in the original submissions, and it appeared that the claimant was attempting to re-litigate the original issues by way of making alternative arguments not originally made at the hearing. While all of the issues brought up by the claimant were considered, the same issues were now being re-argued with several new and alternative arguments being introduced. As the claimant’s evidence related to issues already fully considered and addressed in the original decision, the request for reconsideration was denied.

Jeffery v. Travelers Insurance Company of Canada (20-013979/AABS)

The claimant was denied IRBs and medical benefits and sought entitlements to the benefits along with a Special Award from the Tribunal. The Tribunal held that the claimant was not entitled to IRBs or medical benefits for physiotherapy treatment. The adjudicator held that since no benefits were owed to the claimant, a s. 10 award was not applicable. The adjudicator found that the insurer did not comply with s. 36(4), which required that the insurer shall pay the benefit or give notice with medical reasons and any other reasons why it will not pay the benefit within 10 days of receiving an application and completed disability certificate. The insurer did provide notice to the claimant but did not provide medical reasons for refusing the application and relied on the fact that the claimant returned to work within 7 days of the accident. In addition, the insurer’s notice was not considered proper as it did not include the right to appeal the decision. Eventually, the insurer provided the proper notice with the appropriate medical reasons. The statutory entitlement for breaching s. 36(4) was determined to be for the period where the claimant was not given the proper notice. However, since the claimant was working during the period of statutory entitlement, the claimant’s actual entitlement was nil.

Russell v. Dumfries Mutual Insurance Company (20-004264/AABS)

The claimant applied to the LAT for a CAT designation, ACBs, and medication. The adjudicator found that the claimant did have a CAT impairment under Category 8 and was entitled to receive ACBs and medication. The Tribunal rejected the insurer’s argument that the pre-accident family death was the cause of the claimant’s psychological impairment. The LAT found that the claimant was not entitled to an ACB of $6,000/per month as she did not require 24/7 supervision and was able to work 3 to 4 hours a week. Although she was involved in a fire in 2018 from leaving the stove on, it did not mean she required 24/7 supervision. The claimant was found to be entitled to $1,561/per month in ACBs. The claimant was entitled to incurred ACBs, occupational therapy fees, an audiometric and speech-language pathology assessment, a social work assessment and RSW services.

Bennett v. The Co-operators (20-014453/AABS)

The claimant filed a LAT Application disputing several OCF-18s with interest. A special award was also claimed. The claimant argued that her worsening pre-accident fibromyalgia had resulted in numerous falls prior to the accident which required physical treatment. The main issue was payment of an OCF-18 for an attendant care assessment. The assessment had been incurred and a Form 1 recommending $1,231.30 in attendant care had been submitted. The Co-operators denied the OCF-18. The Co-operators argument involved s. 25 and s. 14. They argued that the claimant’s issues and injuries were not as a result of the accident, and while she had in fact been removed from the MIG due to her pre-exisiting conditions, the attendant care assessment would not be payable as any injury was pre-existing and not “as a result of the accident”, which would not allow access to attendant care. Furthermore, they argued that under s. 18(2), the claimant would only be removed from the cap on MR funding, and that under s. 25(2) or s. 14, this would not establish entitlement to an attendant care assessment solely based on a pre-existing condition. Adjudicator Grant disagreed, noting that the Co-operators appeared to be conflating the intentions of s. 25 and s. 14 in order to split impairments from access to funding. He further noted that a plain reading of s. 14(2) showed that once the insured had received notice of removal from the MIG, it was final and complete — there was no “partial removal”. Adjudicator Grant found the occupational therapy report submitted by the claimant to be persuasive compared to her medicals, and ruled that the OCF-18 and resulting report were reasonable and necessary in order to establish her post-accident level of functioning.