Category: Medical Benefits

D.L. v. Aviva General Insurance Company (19-000651)

The claimant sought entitlement to medical benefits, a social work assessment, an OCF-3 expense, and interest. Adjudicator Boyce concluded that the claimant was entitled to the three medical benefits, but not the assessment or expense. The insurer agreed to fund these treatment plans subject to a ruling with respect to the amounts proposed in excess of the maximum hourly rate in Superintendent’s Guideline No. 03/14. The insurer sought a breakdown of the services to be rendered, at what frequency or at what rate. Adjudicator Boyce found that treatment plans should clearly articulate the service provided and identify the provider and the appropriate rate. Adjudicator Boyce looked to the signing provider for each treatment plan and assumed that the provider’s area of expertise was the dominant modality for each. The applicable rate for each signing provider was then used to calculate the fees for each OCF-18. With respect to the assessment, Adjudicator Boyce found no reason to interfere with the insurer’s denial and that the type of assessment did not appear to be consistent with the claimant’s diagnosis and that there was no compelling medical evidence to indicate that a social worker assessment was required as a result of injuries sustained in the subject accident. Finally, the claimant sought $200 for an OCF-3 Disability Certificate. Adjudicator Boyce agreed with the insurer that the claimant submitting six OCF-3s from the same clinic in a three-year span was excessive where the claimant had not pointed to any change in circumstance. Further, neither the claimant, nor the clinic provided particulars to support why it was necessary to provide an updated OCF-3. Accordingly, Adjudicator Boyce found that the claimant was not entitled to the expense because it was not reasonable or necessary.

Jamon v. The Co-operators (19-006256)

The claimant sought entitlement to IRBs and various medical/rehabilitation benefits, including an attendant care assessment and functional abilities assessment. With respect to IRBs, Adjudicator Parish found that the claimant had proven on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment as a supervisor at Dairy Queen, emphasizing the claimant’s ongoing post-concussion symptoms, which were not addressed in the insurer’s IE reports. Adjudicator Parish further found that the attendant care assessment was reasonable and necessary because of the claimant’s self-reported difficulty with performing her personal care tasks, and that the functional abilities assessment was reasonable and necessary as it could have assisted with the determination of ongoing entitlement to IRBs. In light of her findings, Adjudicator Parish also granted a 25 percent special award on the attendant care and functional abilities assessment due to the insurer’s failure to investigate the claimant’s concussive symptoms.

Khosla v. TD General Insurance Company (19-010508)

The claimant applied to the LAT disputing her entitlement to a chiropractic treatment plan. The issue in this dispute was the application of sections 38(5) and (6), and the MIG. The insurer denied the treatment plan in accordance with section 38(5) on the basis that the claimant was being treated within the MIG. Later, the insurer removed the claimant from the MIG and the claimant argued that once the insurer removed the claimant from the MIG, it failed to reconsider its denial of the disputed treatment plan and failed to make a determination regarding its reasonableness and necessity. The insurer argued that it was entitled to deny the plan pursuant to section 38(5) as this section allows an insurer to refuse to accept a treatment plan if the plan described goods and services during any period which the insured person is entitled to receive goods and services within the MIG. The insurer submitted an OCF-21 for this period showing that the claimant was treated within the MIG. Adjudicator Lake held that the claimant was treated within the MIG when the disputed treatment plan was submitted and therefore, section 38(5) applied and the LAT was prevented from reviewing the denial of the plan pursuant to section 38(6), regardless of the fact the insurer later removed the claimant from the MIG.

S.P. v. Aviva General Insurance Company (18-008876)

The claimant sought reconsideration of a LAT dispute denying her entitlement to IRBs and medical benefits. The claimant was represented by counsel at the hearing and with respect to the reconsideration application. Adjudicator Boyce noted that the claimant’s reconsideration submissions were 24 pages single spaced and made sweeping accusations that the adjudicator denied her procedural fairness, acted as an advocate for the insurer, and was biased towards her. Adjudicator Boyce was critical of the fact that the claimant made allegations in her written submissions about what happened during the 1-day in-person hearing without providing a transcript of the hearing to support her arguments. The claimant argued she was denied procedural justice to cross-examine the investigator however Adjudicator Boyce noted that the claimant did not provide any evidence that she summonsed the investigator who conducted the surveillance. Ultimately, Adjudicator Boyce dismissed all of the claimant’s grounds for reconsideration.

Escobar v. The Guarantee Company of North America (20-000259)

The claimant sought entitlement to two treatment plans, including a medical benefit for dental treatment and a rehabilitation benefit for a hot tub. The claimant also sought a special award. Adjudicator Grant found that the claimant was entitled to the OCF-18 for dental treatment, but was not entitled to the OCF-18 for a hot tub, as the expense was incurred prior to the submission of the treatment plan, contrary to s. 38(2) of the Schedule. With respect to a special award, neither party made submissions. Adjudicator Grant therefore found that an award was not appropriate in the circumstances. It was not unreasonable for the insurer to rely on the reports of its assessors when denying the OCF-18 for dental treatment.

Corpuz v. Aviva General Insurance (19-014198)

The claimant applied to the LAT seeking entitlement to medical benefits proposed in two treatment plans. The insurer sought an award of costs in the amount of $1,000.00 on the grounds that the claimant acted vexatiously and in bad faith in the proceeding. The insurer argued that the claimant had misled the LAT by misrepresenting the procedural history for a psychological assessment. Vice Chair McGee found that the claimant failed to demonstrate that the treatment plans in dispute were reasonable and necessary. Vice Chair McGee found that the claimant’s submissions regarding the procedural history for the psychological assessment were inaccurate but not made with the deliberate intent to mislead and deceive the LAT. That said, Vice Chair McGee found that the claimant’s conduct in the proceeding did rise to the threshold of vexatious and bad faith conduct warranting a costs award of $100.00.

Campbell v. Aviva Insurance Company (19-012095)

The claimant sought entitlement to three treatment plans for chiropractic treatment. Adjudicator Lake found that the claimant was entitled to all three of the treatment plans, plus interest as a result of the insurer’s failure to comply with section 38(8). The claimant cited the decision of T.F. v. Peel Mutual Insurance Company, stating that an insurer’s “”medical and other reasons”” should, at the very least, include specific details about the claimant’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the claimant’s condition that the insurer does not have, but requires. Adjudicator Lake found that the insurer’s denial notices did not comply with its obligations under section 38(8) because they mentioned “”injuries,”” but did not specify which injuries or conditions formed the basis of the decision, and did not include the IE report that it relied upon in correspondence. Further, the insurer highlighted the IE report’s recommendation for an independent exercise program, but failed to address the fact that the proposed treatment plans also included, in part, an exercise program. Finally, Adjudicator Lake stated that the insurer did not sufficiently identify the information that it still required from the claimant.

Zhao v. Allstate Canada (20-000134)

The claimant filed a LAT application seeking entitlement to an attendant care assessment, various other treatment plans, and an award under Regulation 664. The claimant’s hearing submissions noted that the dispute over medical benefits other than the attendant care assessment were resolved prior to the hearing. While the case conference order referenced a claim for an award, the claimant did not address the claim for an award in the hearing submissions. The insurer requested that the claim for an award be dismissed as (1) the claimant had not provided particulars of the claim by the document disclosure deadline noted in the case conference order, (2) the claimant’s submissions were devoid of any claim for an award, (3) the claimant was barred from making further arguments relating to the award claim pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, and (4) it would be breach of procedural fairness for the LAT to accept subsequent particulars from the claimant relating to the award. The claimant did not file Reply submissions. Adjudicator Parish dismissed the claim for an award because the particulars were not disclosed by the document production deadline and the claimant violated Rule 9.4. Adjudicator Parish found that it would be a breach of procedural fairness to the insurer to allow the applicant to proceed with the award without particulars being produced in advance of the hearing. Adjudicator Parish further found that the claimant was not entitled to the attendant care assessment. The insurer had previously approved attendant care based on an earlier assessment, and the claimant had not incurred any attendant care expenses. The OT in-home attendant care assessment report by Raymond Wong was not persuasive as it relied to a large extent on the claimant’s self reporting and limited objective testing. The assessment was found not to be reasonable and necessary.

Hastings v. Royal Sun Alliance insurance (20-001485)

The claimant sought entitlement to two treatment plans, including chiropractic services and physiotherapy. Adjudicator Mazerolle found that the claimant was not entitled to payment for either of the disputed treatment plans. The claimant alleged that the treatment plans were not denied within the ten-day timeline required by section 38(8) and that the insurer relied on an outdated insurer’s examination to deny the physiotherapy treatment plan, as this examination took place before the claimant was removed from the MIG. Adjudicator Mazerolle found that the insurer filed its denial letters within the ten-day window, which excluded statutory holidays. Further, although the insurer sent the denial letters to the claimant’s former legal representative, the claimant was copied and, therefore, it was considered to be proper service. With respect to the claimant’s argument that the insurer relied on an outdated examination, Adjudicator Mazerolle found that this submission was not properly understood as a challenge under section 38(8). Although the claimant might disagree with the insurer’s use of the medical report, the stated reliance is a medical reason in accordance with section 38(8)

Delagrammatikas v. Aviva General Insurance (19-013365)

The claimant sought entitlement to a treatment plan for dietician services, a treatment plan for physiotherapy, a rehabilitation benefit for rehabilitation support worker services, and interest. The claimant submitted that he gained weight after the accident which has been a barrier to his recovery. The parties disagreed as to the amount of weight the claimant gained after the accident, but it was sufficient to note that the claimant experienced additional weight gain because of accident-related inactivity and stress. Vice-Chair McGee rejected one of the IE assessors’ opinion on the basis that the report raised doubt as to the thoroughness of the assessment and found that the claimant had discharged his onus of establishing that dietician services were reasonable and necessary. The claimant further submitted that the treatment plan for rehabilitation support worker services was reasonable and necessary based on the opinion of one of the expert witnesses. However, Vice-Chair McGee determined that the claimant failed to establish how the services described in the plan aligned with the expert’s recommendations and how interpersonal relationship facilitation was linked to the exercise follow-through and help with home projects that were the proposed focus of rehabilitation support in the treatment plan. For these reasons, the proposed rehabilitation support services was deemed not reasonable or necessary. Lastly, the treatment plan for physiotherapy services was found to be reasonable and necessary as the insurer had not presented reliable evidence that the claimant’s condition would not be changed by ongoing physiotherapy treatment meanwhile the claimant presented evidence that he had experienced symptomatic relief from physiotherapy. The claimant also sought the exclusion of two of the Insurer’s Examination (IE) reports because the authors failed to complete and sign an Acknowledgment of Expert’s Duty form as required under Rule 10.2(b) of the Tribunal’s Common Rules of Practice and Procedure. The insurer submitted that the claimant was non-complaint with Rule 10.2, specifically sub-rule 10.2(a), which required a party to provide the name and contact information of an expert witness, and sub-rule 10.2(e), which required a party to provide a summary of the expert witness’s findings and conclusions. Vice-Chair McGee concluded that the reports of the expert witnesses complied with the requirements of Rule 10.2(a) and (e) and were admissible. On the other hand, the insurer failed to comply with Rule 10.2(b) in respect of the IE reports. However, Vice-Chair McGee was prepared to admit the reports despite the insurer’s non-compliance with the rule. Vice-Chair McGee found that the prejudice to the insurer that the exclusion of its expert evidence would cause exceeds the concern for technical compliance with the Rules. The Rules are to be liberally interpreted and applied and may be varied to facilitate a fair process.