Vespa v. Aviva General Insurance Company (2022 ONSC 3283)

The claimant appealed the Tribunal’s denial of a chiropractic treatment plan, arguing that the adjudicator’s failure to refer to a specific medicolegal report suggested the lack of procedural fairness or denial of natural justice. The Divisional Court dismissed the appeal. The Court concluded that the Tribunal’s reasons demonstrated that the initial decision and reconsideration decision were fair. The reasons demonstrated that the Tribunal had engaged with the claimant’s argument and explained why the Tribunal disagreed with the claimant’s position. The Court explained that an adjudicator is not required to refer to every piece of evidence before him or her; procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.

Rattani v. Unifund Assurance Company (20-001512)

The claimant applied to the LAT seeking entitlement to various medical benefits, including further physical treatment and assessments. Section 38(8) of the SABs provide that an insurer shall respond to a treatment plan within 10 business of receipt and must provide the claimant correspondence outlining all medical and all other reasons for any denial. As guidance, the LAT explained that medical and other reasons should at the very least include specific details about a claimant conditions which form the basis for the insurer’s decision. In this case the claimant submitted a treatment plan for an assessment of function to identify barrier to recovery. The insurer denied two assessments citing the lack of medical evidence and the report of its IE assessor who agreed with the findings of an emergency physician that the claimant sustained a left sprain and lumbosacral strain in the accident. Adjudicator Kaur found the insurer’s denial to be insufficient. The insurer failed to provide adequate medical reasons explaining why the assessments were denied. Stating that there was “insufficient medical documentation” was not a medical reason, nor was simply repeating one finding of the IE assessor. The insurer’s denial did not provide an explanation that would allow the claimant to understand why the proposed assessments were not reasonably and necessary in light of the two cited reasons. One treatment plan for physical therapy was also awarded as being reasonable and necessary. The remaining proposed medical treatment was denied by the Tribunal as not reasonable and necessary.

G.H.M. v. Wawanesa Mutual Insurance Company (20-009986)

The claimant was a six year old minor, who sustained a significant brain injury as well as other impairments as a result of an accident on May 28, 2015. She was deemed catastrophically impaired. The claimant disputed entitlement to rehab benefits for tuition and other expenses for the claimant’s brother to attend school as recommended in three different treatment plans. As a result of the claimant’s injuries, the public school she attended pre-accident was unable to meet her needs for an EA that was recommended. The claimant’s parents found a private school that could meet her special needs, which required funding. The funding for the claimant’s attendance at the private school was approved. She had a twin brother with whom she had a special bond and with whom she had always attended the same school. It was determined that the brother’s attendance at the private school proved to demonstrate significant improvements for the claimant. Three treatment plans were submitted for funding of the twin brother’s tuition at the school. The claimant argued the treatment plans for private tuition for the brother was reasonable and necessary as it achieved the rehabilitative goal of reducing the effects of the claimant’s disability. The insurer relied on the opinion of the IE expert, who determined the treatment plans were not reasonable and necessary as there were ethical concerns about using the brother as a rehabilitative tool and that it could have an adverse effect on the brother both academically and emotionally. The IE expert also opined that the brother may develop compassion fatigue and come to resent the claimant. In addition, the claimant might also become overly dependent on her brother for her future academic success. Adjudicator Hines found that the treatment plans were reasonable and necessary, but were not payable because they were incurred prior to submission of a treatment plan. Adjudicator Hines found the case was unique as the claimant responded negatively to conventional treatment that caused harm and disruption to the claimant’s family. The evidence supported that the brother’s attendance at the same school resulted in significant improvements to the claimant’s communication skills and had a positive impact in her social skills with her peers. The issues raised by the IE expert were speculations and not evidence based. In addition, the insurer did not request production of the claimant brother’s medical and academic records. Adjudicator Hines also took into consideration the testimony of the mother of the claimant, who was found to be a credible witness and gave testimony that both the claimant and her brother thrived at the school. However, the insurer raised an argument that the plans were not payable since they were incurred prior to being submitted. Adjudicator Hines agreed that the insurer was not liable to pay the treatment plans because of the claimant’s failure to comply with section 38(2) of the SABS.

Wang v. Co-Operators General Insurance Company (20-009692)

The claimant applied to the LAT seeking entitlement to benefits, including a CAT assessment, after being involved in a motor vehicle accident. Vice-Chair Shapiro found that the claimant failed to establish on the evidence that a CAT assessment would be both reasonable and necessary in the circumstances, highlighting that the threshold requires the claimant to demonstrate that her impairments warrant investigation that she possibility has a CAT impairment. Specifically, as the claimant was alleging mental and behaviour impairments, she would need to a show Class 4 marked impairments. The claimant relied largely on her own self-reports which the Tribunal found to be contradictory and inconsistent, including in relation to her injuries, her medical functionality, her symptoms, and her work history. Two further treatment plans for an attendant care assessment and chiropractic services were also dismissed as not reasonable and necessary.

E.J. v. Economical Insurance (20-008287)

The minor claimant was the daughter and sibling of family members involved in a serious accident. The claimant was not herself in the vehicle at the time. The claimant applied for accident benefits, but the insurer denied the application arguing that the claimant was not in an accident. Vice Chair Lake agreed that the claimant was not involved in an accident, but that she was an insured person. The claimant was a dependent of her father. Her father suffered physical injuries as a result of the accident. The claimant suffered psychological injuries as a result of her father’s injuries. The claimant was therefore entitled to accident benefits as an insured person. A treatment plan for psychological treatment was awarded. An claim for lost educational expense was not awarded because it was not incurred prior to the accident.

Yang v Dominion of Canada General Insurance Company (20-008471)

The claimant sought entitlement to four OCF-18s for physical treatment. The claimant had been removed from the MIG for psychological reasons, but the insurer maintained its denials of the disputed physical treatment plans. The claimant argued that the treatment plan denial letters were improper and failed to mention the medical and other reasons for the denial, contrary to the SABS. The reasons provided for three of the four denial letters were because there was no more funding left under the MIG limits. Vice Chair Lester held that once that reason was no longer true, the insurer has an obligation to re-evaluate the reasonableness and necessity of the OCF-18s previously denied because the claimant now has access to greater benefit limits, and provide updated medical and other reasons for the denial of the OCF-18s. As such, the claimant was found to be entitled to three of the four physical treatment plans.

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.

Powell v. Aviva Insurance Company of Canada (19-012928)

The claimant sought a catastrophic impairment designation, entitlement to ACBs, and medical benefits for occupational therapy and vision therapy. Adjudicator Grieves found that the claimant suffered a Class 4 Marked Impairment in adaptation, and therefore met the catastrophic impairment definition. The accident was a relatively minor rear-end collision, but resulted in the claimant suffering from a mild TBI, and psychological injuries. She continued to work after the accident, but only on a part-time basis. She lacked motivation to engage in daily routines, showered only once per week, had trouble preparing meals, and the claimant’s home was scattered with garbage and cat feces. The claimant experienced multiple periods where she needed to live with her mother because she could not manage independent living. Adjudicator Grieves found the claimant was entitled to ACBs of $644.63 per month for assistance with meal preparation and bathroom and bedroom hygiene. She was critical of the insurer’s assessor, who considered only the claimant’s physical abilities and failed to consider the claimant’s psychological barriers. Medical benefits for aquatherapy was dismissed as it was duplicative, and the claimant already had access to a pool and personal trainer. A treatment plan for a professional organizer and a treatment plan for vision therapy was awarded.

Luluquisin v Aviva Insurance Company of Canada (20-010381)

The claimant (who was catastrophically impaired) sought entitlement to attendant care benefits at the rate of $6,000 per month as well as various medical benefits. Adjudicator Farlam accepted the insurer’s monthly attendant care rate ($1,029.42 per month) as the claimant failed to establish with medical evidence that $6,000 per month in attendant care services was reasonable and necessary, had failed to attend an IE, and the treatment provider had failed to respond to a section 46 request for additional information. Adjudicator Farlam found that the claimant was entitled to previously partially approved amounts for case management services and chiropractic treatment (if not already paid), but not the denied remaining balances. She further found that the remaining disputed benefits were not payable, given the lack of evidence to support that the proposed services were reasonable and necessary.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.