Category: Medical Benefits

Manoharan v. Allstate Canada (19-010782)

The claimant sought entitlement to various medical benefits, which the insurer had denied based on the MIG. At the LAT case conference, the insurer removed the claimant from the MIG and approved some of the treatment plans. At the LAT hearing, the claimant disputed entitlement to one treatment plan plus interest on the previously approved treatment plans, and claimed a special award. Adjudicator Boyce awarded interest on incurred treatment plans and found the disputed treatment plan payable. In terms of interest, Adjudicator Boyce found that it was payable when there was an overdue benefit, and that section 51 did not allow the insurer to avoid paying interest through the actions or inactions of the claimant. With respect to the disputed medical benefit for a physiatry assessment, Adjudicator Boyce found it payable as he believed it was reasonable and necessary given the claimant had not reached maximum medical recovery 1.5 years post-accident. Finally, Adjudicator Boyce granted a special award noting that the insurer had conceded that it mishandled certain aspects of its file and its submissions focused on how it tried to mitigate these “”inadvertences.”” Adjudicator Boyce criticized the insurer for delaying payments as it caused the claimant harm. Adjudicator Boyce awarded a special award in the amount of $1,500 plus 2% interest compounded monthly, representing approximately 10 percent of the disputed benefits.

Budhram v. Aviva General Insurance (19-014428)

The claimant sought entitlement to two treatment plans, including massage therapy and a chronic pain assessment. Adjudicator Lake found that the claimant was entitled to a portion of the remaining amount for the massage therapy, but was not entitled to the chronic pain assessment. The claimant submitted that the insurer failed to comply with its obligations under section 38(8). Adjudicator Lake stated that failing to provide a compliant denial notice within 10 business days after receipt of the OCF-18 does not render an entire OCF-18 payable. Based on a plain reading of section 38(11)(2), the insurer is liable for payment of the proposed treatment described in the disputed OCF-18 that relates to the period starting on the 11th business day after the day that the insurer received the OCF-18 and ending on the day the insurer gives a notice described in section 38(8). Adjudicator Lake also stated that the amount does not need to be incurred during that time. Further, Adjudicator Lake referenced T.G. v. Peel Mutual Insurance Company, when stating that the insurer did not include sufficient details regarding the claimant’s condition forming the basis for the insurer’s decision. The insurer stated that it was “”unable to determine whether the recommendations on the OCF-18 were reasonable and necessary for the injuries sustained.”” The insurer failed to provide any specific details about the claimant’s condition that formed the basis of its decision and did not, in the alternative, identify information about the claimant’s condition that the insurer did not have, but required. Finally, Adjudicator Lake concluded that medical reasons provided under a separate heading for an IE do not mitigate the requirement of the insurer to provide medical reasons for its denial of the OCF-18 under section 38(8).

N.M. v. Aviva Insurance Canada (18-008710)

The claimant was involved in two accidents. He sought entitlement to NEBs for the second accident, and sought various medical benefits for both accidents. Adjudicator Paluch held that the claimant was entitled to NEBs up to the two-year mark because the insurer failed to properly stop entitlement. The insurer had stopped payment of NEBs after receiving paper review IEs, but the claimant had never received a notice under section 44 indicating that the paper review was taking place. Adjudicator Paluch found the insurer’s breach of sections 36 and 37 resulted in the claimant’s continuing entitlement to NEBs. The claimant was also awarded two treatment plans for physiotherapy for the second accident. Two claimed assessments were dismissed because they were completed before ten business days had elapsed after submission of the treatment plans, contrary to section 38(2).

A.G. v. Allstate Insurance Company of Canada (19-003687)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with appealing a claim for neurological assessment that was denied because the claimant was past the two year limitation period. The claimant relied on section 7 of the LAT Act to allow for an extension of time to file an application. Vice-Chair Flude considered the justice of the case in order to determine whether an extension of time following the two year limitation period was applicable. He looked to the four factors that applied in the justice of the case: (1) an intention to appeal within the appeal period (2) the length of the delay (3) prejudice to the other party and (4) the merits of the case. The claimant did not make any submissions on an intention to appeal within the appeal period or on the length of the delay and the explanation for it. Vice-Chair Flude found those omissions to be detrimental to the claimant’s request for an extension of time because it did not allow the Vice-Chair to understand the circumstances and to determine if reasonable grounds existed. It was Vice-Chair Flude’s view that the Legislature set a two year limitation period and also gave the Tribunal the discretion to consider if any reasonable grounds to extend the limitation period. However, it was the Legislature’s intention that the discretion in section 7 of the LAT Act was to be available only in exceptional circumstances where it would be unjust to deny a claimant a remedy. In this case, the claimant did not establish anything exceptional about it and had not justified the missed limitation period. For that reason, the Vice-Chair declined to exercise any discretion in section 7. In regard to the substantive issues in dispute claiming entitlement to medical benefits for two physiotherapy treatment plans and interest, Vice-Chair Flude found the claimant failed to show the treatment plans were reasonable and necessary. The records from the extensive physiotherapy treatment showed no change in her condition as a result of the treatment. The Vice-Chair found it would be unreasonable to continue with treatment with no benefit and accepted the argument of the insurer’s assessors that further facility-based treatment would be of no medical value, instead recommending a self-directed home exercise program.

Rohile v. Intact Insurance Company (19-009857)

The claimant disputed his entitlement to a partially approved OCF-18 for psychological treatment. The only issue between the parties was the hourly rate for the service provider for the psychological services. The insurer approved the treatment plan at the rate of $99.75 per hour. The claimant argued that the service provider, who was a social worker, should be paid at the same rate as a psychologist ($149.61 as per the Professional Service Guidelines). The insurer disagreed, as the service provider did not have the experience or specialized training in psychotherapy or cognitive behavioural therapy and did not administer same to the claimant. Adjudicator Watt noted that social workers can provide psychotherapy services, and that psychotherapists may be paid at the psychologist rate in certain situations – for example, where the psychotherapist has a high level of experience/education or where the psychotherapist charges a rate in their non-MVA related practice that is the same or higher than the rate applicable psychologists in the Guideline. However, Adjudicator Watt found that the rate approved by the insurer was appropriate and reasonable, as he was provided with no evidence as to the qualifications of the service provider nor what hourly rate she charged in private practice.

Ramlal v. Aviva General Insurance (19-011325)

The claimant sought to be removed from the MIG and sought entitlement to three treatment plans and the cost of an orthopaedic assessment. Adjudicator Hines concluded that the claimant sustained a minor injury, but was entitled to payment for the disputed treatment plans if they had been incurred prior to receiving proper notice from the insurer denying the benefits. Adjudicator Hines found that the insurer failed to provide adequate medical and other reasons for denying the treatment plans because the insurer’s denial of the treatment plans failed to refer to the claimant’s medical condition. Further, the notices did not state that the MIG applied, which is mandatory under section 38(9). In addition, the insurer failed to reference any medical records that it had received or to request additional medical records. Finally, Adjudicator Hines agreed with the arbitrator’s interpretation in Ferawana v. State Farm, that whether the treatment plans are reasonable and necessary is irrelevant to whether the mandatory payment consequence of section 38(11)(2) applies. Adjudicator Hines also agreed that nothing in the Schedule relieves an insurer of its liability from the mandatory payment provision on the basis that a treatment plan is not reasonable and necessary.

Sookram v. Zenith Insurance Company (19-012732)

The claimant sought entitlement to NEBs, and seven medical benefits for various treatment and assessments. Adjudicator Watt dismissed all of the claims, holding that the claimant failed to prove entitlement. With regard to the NEB claim, Adjudicator Watt also noted that the claimant was employed at the time of the accident, and that he did not satisfy the element of the NEB test that required that he “”not qualify for an income replacement benefit””. The adjudicator wrote that the applicant should have proceeded with an IRB claim instead. He acknowledged the Court of Appeal’s reasons in Galdamez v Allstate, but wrote that the decision allowing employed persons to claim NEBs was limited to applicants whose job duties did not include mobility requirements, and where the job was not of great importance to the applicant’s pre-accident life.

Walcott v. Aviva General Insurance (19-007910)

The claimant sought entitlement to three treatment plans for chiropractic services, one treatment plan for psychological services, and a catastrophic impairment assessment. Adjudicator Grieves noted that given the time elapsed before the claimant reported any accident-related complaints, and that there were only three entries relating to the accident despite seeing her family physician very frequently, the lack of objective evidence of ongoing injuries, and no recommendation from the neurologist, the claimant had not met her burden of proof. Therefore, the claimant was not entitled to the chiropractic services. With regards to the psychological services, the claimant’s family physician made referrals for psychotherapy, she was engaging in treatment which had been helpful, and the insurer’s assessors concluded that she met the criteria for an adjustment disorder with depressed mood and anxiety. Adjudicator Grieves concluded that the proposed treatment and associated cost were reasonable and necessary. Further, a treatment plan was submitted proposing various catastrophic assessments. The claimant relied on a report stating that the claimant’s psychosocial sequelae were causing challenges and disruptions to her life and normal activities such as being an effective spouse, mother and preventing her from returning to work. The claimant also submitted that there was a reasonable possibility that she was catastrophically impaired because her serious psychiatric conditions prevented her from returning to work or care for her children. Adjudicator Grieves found that the catastrophic assessments were partially reasonable and necessary. Adjudicator Grieves agreed that the claimant sustained serious psychological issues as a result of the accident, however, she had not established why each component of the multidisciplinary assessment was reasonable and necessary. A total of $8,400 of the claimed $16,272 was approved.

Verschuren v. the Personal Insurance Company (20-003677)

The claimant was involved in a serios motorcycle accident and was determined to be catastrophically impaired by the insurer. The claimant submitted a treatment plan for a home modification assessment by Adapt-Able Design in the amount of $9,217.40. The insurer partially approved the assessment in the amount of $2,200. The claimant applied to the LAT seeking entitlement to the denied portion of the treatment plan. Adjudicator Boyce was persuaded by the reasoning in previous LAT decisions with similar facts, and found that the insurer was not obligated to pay more than $2,000 for the proposed assessment, pursuant to section 25(5)(a). The claimant was not entitled to the unapproved portion of the treatment plan.

Syrovy v. Aviva Insurance Company (19-012498)

The claimant applied to the LAT seeking entitlement to a treatment plan for physiotherapy and sought a special award. Adjudicator Boyce found the claimant was entitled to the treatment plan, plus interest, and given a special award in the amount of $250.00. Adjudicator Boyce found that the insurer’s denial letter did not comply with section 38(8), as the insurer did not provide adequate medical reasons for its denial. In particular, the insurer noted in its letter that there was “”no compelling evidence”” to support treatment, however, the insurer had medical documentation in its possession where medical professionals recommended the precise treatment in dispute. Adjudicator Boyce found that per section 38(11), the treatment plan was payable. Adjudicator Boyce also found that the insurer unreasonably withheld the payments as it did not provide a proper denial. Adjudicator Boyce awarded a special award in the amount of $250 representing approximately 10 percent the cost of the disputed treatment plan.