Aviva Insurance Company of Canada v. Suarez (2021 ONSC 6200)

The insurer appealed the Tribunal’s decision awarding four treatment plans for chiropractic therapy, two as reasonable and necessary, and two others due to non-compliant section 38 notices. The insurer argued that because the claimant had not received the treatment, she was not permitted to apply to the LAT. The Court rejected the insurer’s position, holding that the claimant did not have to receive treatment prior to disputing her entitlement. The Court agreed, however, that payment for the treatment plans was not required until the claimant incurred the treatment. The Court also preserved the insurer’s ability to dispute payment upon receipt of invoices and incurred expenses, and held that interest was only payable once the treatment was incurred.

Kyrylenko v. Aviva Insurance Canada (2021 ONSC 4929)

The claimant appealed the Tribunal’s decision that he was not entitled to payment for benefits related to two treatment plans that the insurer had failed to respond to within 10 business days. Despite the language of section 38(11), the Tribunal considered whether the medical benefits were reasonable and necessary, and whether the MIG applied and barred entitlement to the claimed in-home assessment. The Divisional Court granted the appeal and held that the insurer was liable for all amounts on the treatment plans related to the 11th business day onwards until the treatment plan was properly denied. The Tribunal erred in considering the “”reasonable and necessary”” test for the entitlement when section 38(11) applied, and the Tribunal erred in considering the prohibition on in-home assessments under section 25(2) for MIG claims, given that section 38(11) required payment. The Court ordered the insurer to pay the treatment amounts that relate to the period after the 11th business day following submission of the treatment plan. The Court returned to matter to the Tribunal for a decision on the claim for a special award.

M.F. v. Belair Insurance Company (18-003847)

The claimant submitted a request for reconsideration arising out of a decision which found that he was not entitled to medical benefits and post-104 week IRBs because the claimant’s psychological impairments were not a result of the accident. The claimant’s reconsideration request was made on the basis that there was fresh evidence (a new IE report from the insurer) that was not before the Tribunal when rendering its decision. The IE report found that the claimant’s psychological impairments flowed from his accident-related chronic pain. Adjudicator Grieves accepted that the new report was not available at the hearing, could not have been obtain previously by the claimant given that the Tribunal’s decision was rendered three months prior to the claimant receiving the report, and that the evidence would likely have affected the result at the hearing. As such, she granted the request for reconsideration in part, finding that the claimant was entitled to post-104 week IRBs and some of the disputed medical benefits.

Almayahi v. The Co-Operators General Insurance Company (20-001166)

The claimant sought entitlement to two chiropractic treatment plans and a special award. Adjudicator Grant found that the claimant was entitled to payment for the costs of both treatment plans on the basis that the medical documentation supported his reports of consistent and ongoing pain since the accident, and that the goals of pain reduction, increased range of motion, and return to activities of normal living were reasonable and necessary. Adjudicator Grant further found that the claimant was entitled to a special award in the amount of $470.74, representing 10 percent of the total amount payable on the treatment plans. He determined that the insurer unreasonably withheld treatment by failing to acknowledge or consider new medical records from the claimant’s family physician and chronic pain treatment providers which challenged the conclusions of its IE assessor.

Butler v. Allstate Insurance (19-013444)

The claimant applied to the LAT disputing entitlement to attendant care benefits and medical benefits. The dispute proceeded by written hearing. Adjudicator Lake held that the claimant was not entitled to ACBs for the three periods claimed. For the first period, Adjudicator Lake dismissed the claim as the claimant sought benefits prior to submission of a Form 1, which was not permitted per s. 42. For the second period, Adjudicator Lake dismissed the claim because, while Allstate approved ACBs at the rate of $3,000 per month, the claimant did not provide any evidence that his son and attendant care provider sustained an economic loss nor that the claimant incurred the expenses as the claimant did not submit attendant care invoices. Adjudicator Lake did not find there was any evidence that Allstate withheld ACBs and therefore, she declined to deem the expenses incurred. As for the third period, Allstate reduced the claimant’s ACBs to $448.49 per month. Adjudicator Lake held that even if she accepted the claimant’s higher ACB rate, the claimant again failed to produce evidence that ACBs were incurred and that his son suffered an economic loss. Adjudicator Lake also dismissed the claimant for “planning, service” under the treatment plans, as this was not payable per the FSCO Professional Services Guideline.

Viran v. Aviva General Insurance Company (19-008488)

The claimant sought entitlement to physical treatment and various assessments, as well as a special award. Adjudicator Grant determined that the claimant was entitled to the disputed physical treatment plan, finding that the claimant’s pre and post-accident visit history with her family doctor was indicative of significant and ongoing accident-related pain complaints and noting that pain relief, even as the lone goal of treatment, was a legitimate and sometimes reasonable and necessary goal. He further found that chronic pain assessment payable in light of the insurer’s non-compliance with section 38(8). The insurer failed to respond to the treatment plan, even at the time of the hearing, and Adjudicator Grant advised that the door was now closed to the option of curing the defective notice. Adjudicator Grant also granted a special award in the amount of $300.00, finding that the insurer failed to meet its obligation to continue to adjust its file as new medical evidence became available that clearly contradicted its IE assessor’s finding and was also in non-compliance with section 38 of the Schedule.

Biro v. Unica Insurance Inc. (20-003720)

The claimant was involved in an accident in 2007. In 2017, FSCO issued a decision granting the applicant ACBs and certain medical benefits. FSCO determined the claimant was not catastrophically impaired and denied a claim for NEBs. The claimant appealed the FSCO decision. The appeal was denied. In April 2020, the self-represented claimant applied to the LAT claiming $6 million for chiropractic services arising from the accident. Adjudicator McGee found that the LAT did not have jurisdiction to hear the application because the claimant had not filed a treatment plan as required under s. 38, and the insurer did not have the opportunity to approve or deny the benefit claimed in the LAT application. Adjudicator McGee found that without a denial of a benefit, the LAT did not have power under the Insurance Act to hear or decide on an application for benefits. The LAT application was dismissed. As the LAT did not have jurisdiction, Adjudicator McGee did not address the other grounds for dismissal raised by the insurer.

Moran v. Aviva General Insurance (19-008529)

The claimant applied to the LAT seeking entitlement to psychological and chiropractic treatment, an orthopaedic mattress, and various assessments. Causation was an issue as the claimant had a slip and fall incident and a second motor vehicle accident after the subject accident. Adjudicator Lake held that the “but for” test was the appropriate test for causation. Adjudicator Lake found that the claimant’s psychological impairments were caused by the subject accident. The claimant failed to prove on a balance of probabilities that his physical impairments were caused by the subject accident. The psychological benefits in dispute included the rate payable for a psychotherapist. Adjudicator Lake found that it was appropriate for Aviva to pay a psychotherapist at a lower rate than a psychologist. The claimant was not entitled to the disputed brokerage fee and the amount claimed for documentation and support. The claimant was not entitled to benefits related to physical impairments. The application was dismissed.

Kazmi v. Pembridge Insurance Company (19-010107 and 20-001345)

The claimant applied to the LAT disputing entitlement to IRBs and two medical benefits. The matter proceeded by way of written hearing. Adjudicator Farlam found that the claimant was entitled to an IRB at the rate of $291 per week and awarded the two medical benefits plus interest. With respect to IRBs, the parties agreed that substantive entitlement was not an issue. The insurer argued that the claimant was not entitled to an IRB pursuant to s. 33(6) because he failed to provide documentation necessary to adjust his claim. Adjudicator Farlam held that the claimant responded to the insurer’s requests and there was no valid suspension of benefits pursuant to s. 33. Adjudicator Farlam noted that the claimant had valid reasons for not complying with the insurer’s requests, including misunderstanding the nature of the insurer’s request for medical documents, and finding that the claimant gave best efforts to obtain the requested documents. With respect to the disputed cost of a mattress, Adjudicator Farlam awarded this benefit as she preferred the evidence of the claimant’s treating physician to that of the IE occupational therapist. Adjudicator Farlam held that the treating physician likely knew the claimant best, diagnosed the claimant with chronic back pain, and wrote to the insurer asking it to consider funding a firm mattress. Adjudicator Farlam agreed that the mattress was reasonable and necessary. Adjudicator Farlam also awarded the cost of a chiropractic treatment plan based on the evidence of the claimant’s treating physicians, and noted that the claimant’s family physician wrote a letter to the insurer requesting it reinstate funding of chiropractic care.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.