Category: Medical Benefits

White v. Travelers Insurance (19-010567)

The claimant disputed her entitlement to two treatment plans for vision-related services. The insurer denied the treatment plans on the basis that the claimant’s vision impairments were not caused by the accident, as the claimant had pre-existing issues with her vision and the neuro-optometry IE assessor found that the claimant’s visual impairments were natural history issues, unrelated to the accident, and should be improvable with a new eyeglasses prescription. Adjudicator Farlam rejected the insurer’s argument, and accepted that the claimant’s vision impairments were caused or exacerbated by the accident, preferring the records of the claimant’s treatment providers over the findings of the insurer’s IE assessor. On that basis, Adjudicator Farlam determined that the disputed treatment plans were reasonable and necessary.

N.C. v. Aviva General Insurance Company (19-004666)

The claimant sought reconsideration of the Tribunal’s decision dismissing entitlement to medical benefits. Adjudicator McGee noted that the claimant filed her reconsideration submissions nearly a month after the deadline for submissions. Vice Chair McGee did not make any findings on procedural issues for the late findings, as she dismissed the reconsideration application on its merits. With regard to the claimed medical benefits, Vice Chair McGee held that the Tribunal applied the proper “”reasonable and necessary”” test in concluding that the claimant had reached maximum medical recovery and that no further facility based treatment was warranted. Vice Chair McGee also rejected the claimant’s arguments regarding the claimed MRI being available through OHIP. She reiterated that pursuant to section 47(2), the insurer was not required to pay for the MRI because it was reasonable available through OHIP.

N.P. v. Wawanesa Mutual Insurance Company (18-010628)

The claimant filed a request for reconsideration of Adjudicator Norris’ decision that found the claimant was entitled to a physiotherapy treatment plan but not entitled to a chiropractic treatment plan, nor a second physiotherapy treatment plan. The claimant submitted that Adjudicator Norris made a significant error of law and that he misinterpreted section 38(11). Adjudicator Norris found that the insurer’s notice in response to the physiotherapy plan that was found to be not reasonable and necessary, failed to comply with section 38(8). As a result of that failure, Adjudicator Norris determined that the claimant was entitled to the goods and services related to that treatment plan which were incurred during the period starting on the 11th business day following the submission of the treatment plan. However, there was no evidence to show that the claimant incurred any goods or services on the 11th business day or any day thereafter. Thus, the claimant was not entitled to any payment. The claimant submitted that the insurer’s failure to comply with section 38(11) entitled him to all the goods and services described in the treatment plan that related to the period starting on the 11th business day, regardless of whether the goods and services were incurred. Further, the claimant relied on the principle set out in Rizzo and Rizzo Shoes Ltd. and submitted that the phrase “described” in section 38(11) did not require the claimant to incur the goods and services. The claimant argued that different language would have been used had there been a requirement to incur the goods and services. Adjudicator Norris opined that section 38(11)(2) served as an exception to the reasonable and necessary test, but only to compel timely responses from insurers. Moreover, section 38(15) directs insurers to make timely payment to service providers for the goods and services the insurer previously agreed to pay for. The latter part of the section addresses incurred goods and services the insurer was obligated to pay for as a result of an untimely or insufficient response. Lastly, Adjudicator Norris found that the claimant’s position led to an absurd result. The result was that a potential service provider receives a financial windfall from an insurer’s failure to comply with the time constraints of the Schedule, and the insured would be left without treatment. In conclusion, Adjudicator Norris found no error of law in the decision and dismissed the claimant’s reconsideration request.

T.H. v. Allstate Insurance Company of Canada (19-004567)

The insurer sought reconsideration of the Tribunal’s decision to award two treatment plans. The main argument for reconsideration was that the Tribunal considered an affidavit from the claimant that the insurer did not have an opportunity to cross-examine the claimant on. Adjudicator Paluch granted the reconsideration, holding that the Tribunal violated the rules of procedural fairness. The Tribunal had erred in considering the affidavit when it had been agreed by the claimant and the insurer prior to the written hearing, that the affidavit would not be part of the evidence before the Tribunal. The adjudicator had mistakenly believed that the insurer was consenting to the inclusion of the affidavit and that the insurer had waived its right to cross-examine the claimant on it

Chen v. Chubb Insurance Company of Canada (19-008582)

The claimant disputed her entitlement to NEBs, three medical benefits for treatment, and an attendant care assessment. Adjudicator Grant dismissed all of the claims. He found that the claimant was not prevented from engaging in substantially all of the activities in which she ordinarily had prior to the accident. The claimant had not provided a comparison of her pre- and post-accident activities, specifically on the amount of time spent on said activities, as well as the value and importance placed on each. The adjudicator also noted that the claimant had not provided any affidavits or oral evidence to speak to the Heath v Economical factors, and as such he only had the claimant’s assertions in the written submissions to rely on. Similarly, the claimant’s evidence did not support the need for further treatment, and the IE doctors had concluded that the claimant had reached maximum medical recovery. Finally, the attendant care assessment was not reasonable and necessary because the claimant had reported being independent with self-care.

Berisha v. Certas Home and Auto Insurance Company (19-012869)

The claimant sought entitlement to medical benefits and interest. The claimant had earlier been accepted as catastrophically impaired. The insurer disputed the overall costs of assessments, which it had partially approved. Vice Chair Boyce concluded the claimant was not entitled to any of the partially denied assessments. The claimant claimed entitlement to the assessor’s denied travel expenses for an in-home assessment. The insurer argued that pursuant to s.25(4) it was not liable to pay more than $2,000 for fees and expenses on any one assessment and the claimant bore the burden to prove the cost was reasonable and necessary. The claimant argued that she lived in a rural area, which justified the travel cost. Vice Chair Boyce agreed that the insurer was not obligated to pay for the provider’s travel expenses in addition to the $2,000 cap under s.25(5)(a), which was already included in the capped fee amount. No evidence was provided to show the provider was unwilling to travel if her travel expenses were not paid. The claimant also claimed entitlement to full payment for a neuropsychological CAT assessment. The insurer denied payment of the clinical file review claim in the amount of $2,000 based on s.25(5)(a) limit that includes a file review. The claimant submitted that the assessment had two components: psychological and neurological. The neurological assessment proposed was two separate assessments conducted by one assessor. Vice Chair Boyce agreed that the individual assessments were capped at $2,000 and the cost of the neuropsychological assessment at $5,500 more than the other assessments was not reasonable or necessary. The Tribunal had consistently found file reviews necessarily formed part of conducting an assessment and was not separate from the $2,000 payment. The claimant further claimed a remaining $2,000 for a neuropsychological assessment. The insurer again denied payment on the basis of s.25(5)(a) and argued that the claimant had attempted to skirt the s.25(5)(a) fee limit for assessments by intentionally separating the assessments into psychological and neuro-cognitive assessments to get two separate $2,000 payments. The OCF-18 provided the same descriptions and codes on the OCF-18 for both assessments. Vice Chair Boyce found the claimant had not demonstrated the reasonableness of the unapproved portion of the OCF-18.

Mohamud v. Certas Home and Auto Insurance Company (19-005153)

The claimant disputed entitlement to four treatment plans for various assessments and assistive devices, and a special award. The insurer raised a preliminary issue, claiming that the disputed dental assessment was barred by the limitation period. The insurer denied the plan on April 6, 2017, provided a clear and unequivocal denial and warned of the two-year limitation period. The claimant argued that the limitation clock did not begin until July 26, 2017, when the insurer sent a letter partially approving other dental procedures and noting that it “will not pay for any treatment that it had not authorized.” Adjudicator Lake ruled in the insurer’s favour, noting that the April 2017 denial was clear and provided notice of the two-year limitation. Furthermore, Adjudicator Lake noted that there was no power to extend the limitation period. Regarding the other treatment plans, the claimant requested to add additional evidence in the form of clinical notes and records. Adjudicator Lake denied the request, agreeing with the insurer that Orders should be followed. As there was no reason to why the late record could not have been produced earlier, the request was denied. Adjudicator Lake awarded the claimant part of a disputed OCF-18 for assistive devices and interest and dismissed the remainder of her claim.

Halstead v. Aviva Insurance Company (19-01394)

The claimant sought a medical benefits in the amount of $12,341.56 proposing that the insurer pay the cash difference between her old vehicle, a 2016 Volkswagen Jetta, and a new vehicle, a 2017 Hyundai Tucson, which was a larger and more spacious SUV. The claimant and her treating OT argued that the new vehicle was necessary as the claimant’s job as a coffee shop newspaper producer and distributor required her to drive to over one hundred locations in the province over the course of two days every week to deliver papers. They noted that her old vehicle was smaller and lower to the ground which caused a strain on her hips while driving, made it more difficult to get in and out of the vehicle, and that the lower trunk height caused a strain on her back. The insurer denied the treatment plan on the grounds it was not reasonable or necessary as a result of the accident. The insurer noted in its denial letter that an IE would be arranged, but did not follow-up up on this and had no competing medical opinion. The claimant ended up purchasing the Hyundai. Vice-Chair Boyce noted that the claimant submitted two reports by the OT in support of the new vehicle, an original report from 2017, and an addendum report from 2020. Both the claimant and the OT took measures to find cheaper alternatives when selecting vehicles. Because the insurer did not arrange an IE, the claimant made the decision to purchase the Hyundai after a lengthy delay as it was necessary for her continued employment. Vice-Chair Boyce ruled in the claimant’s favour and found the medical benefits payable. A special award in the amount of $1,200.00 was also granted for the insurer’s withholding and delay.

Salim v. Aviva General Insurance (19-006944)

The claimant was involved in a serious accident. He was skateboarding and was hit by a vehicle and suffered nasal, left elbow, pelvic, and sacral fractures, and psychological injuries. The claimant applied to the LAT disputing entitlement to NEBs, ACBs, and the full cost of partially approved medical benefits. Adjudicator Farlam dismissed the claimant’s dispute in its entirety. With respect to NEBs, Adjudicator Farlam noted that the claimant travelled post-accident, resumed full-time education, and resumed his participation in sports including judo and wrestling. Adjudicator Farlam held that while the claimant required help with some self-care tasks and had ongoing physical and psychological limitations, he did not meet the NEBs disability test. With respect to ACBs, Adjudicator Farlam noted that the claimant reported that his family cared from him. However, the claimant did not submit proof of incurred expenses nor economic loss. Adjudicator Farlam noted that the claimant did not submit OCF-6s, receipts, invoices, or any other proof of incurred benefits. Adjudicator Farlam dismissed the claimant’s submissions that ACBs be “deemed incurred” as he did not believe that ACBs were reasonable and necessary in light of the 8 month delay in submitting a Form 1. With respect to the disputed medical benefits, Adjudicator Farlam opined that the claimant had not proven that the balance of the treatment plans were reasonable or necessary.

Rattan v. Aviva Insurance Company (19-006304)

The claimant applied to the LAT disputing his entitlement to three medical benefits and interest. The insurer argued that the doctrine of res judicata prevented the claimant from re-litigating his entitlement to two of the disputed benefits, which the LAT had dismissed in a previous decision. Adjudicator Grant agreed with the insurer that res judicata applied as entitlement to the two disputed treatment plans had been adjudicated on the merits and the claimant was attempting to re-litigate a final decision of the LAT. With respect to the third medical benefit, Adjudicator Grant dismissed the claim noting that he preferred the evidence of the IE orthopaedic surgeon to that of the claimant’s family physician with respect to whether further treatment was reasonable and necessary. Adjudicator Grant held that the family physician’s diagnosis was based solely on the claimant’s subjective reports whereas the IE orthopaedic surgeon completed a thorough physical examination and his objective findings were that the claimant did not suffer an impairment warranting further treatment.