Category: Medical Benefits

R.J. v. Certas Direct Insurance Company (19-009603)

Post author By tgp-admin
Post date December 10, 2020
No Comments on R.J. v. Certas Direct Insurance Company (19-009603)

The claimant sought payment for a housing accessibility assessment in excess of the $2,000 approved by the insurer, and sought a special award on cognitive training sessions that had been denied in 2017 but approved shortly before the hearing. Adjudicator Grant held that the $2,000 limit for assessments in section 25 applied to housing accessibility assessments, and that there was no carve out created by any Guidelines. He granted a special award of $200 on the cognitive training because the insurer had approved it shortly before the hearing, and had approved a similar treatment plan only months after denial of the subject treatment plan. The insurer had not set out a clear rationale for refusing the denied fees in the first place, and its approval of similar fees a few months later suggested that the fees were reasonable and necessary.

Nijjar v. Pembridge Insurance Company (19-011065)

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Post date December 10, 2020
No Comments on Nijjar v. Pembridge Insurance Company (19-011065)

The claimant disputed his entitlement to IRBs for an 18 month period and interest on medical benefits that had been resolved. Adjudicator Lake dismissed the claim for IRBs. She placed little weight on a “Physical Description of Job” sheet and a job description attached to an employer’s confirmation form that indicated a physically demanding job, because of contradictory findings. For example, the claimant had reported during IEs that his job was not heavy but required extended standing. The Adjudicator was unable to clearly determine the claimant’s job title or duties, and as such was unable to determine which job duties he was unable to perform. Interest was awarded on the two medical benefits from the date they were incurred. She dismissed the argument that interest should not be payable until the date that the claimant submitted requested medical records from his family doctor.

Z.K. v. Allstate Insurance Company Canada (17-006929)

Post author By tgp-admin
Post date December 8, 2020
No Comments on Z.K. v. Allstate Insurance Company Canada (17-006929)

The claimant sought entitlement to a catastrophic impairment designation, further chiropractic treatment, and the cost of denied neuropsychological and triage CAT assessments. Adjudicator Johal accepted that the claimant suffered three Class 4 marked impairments in each of activities of daily living; concentration, persistence, and pace; and adaptation in work or work-like settings. Prior to the accident the claimant ran a business for about twelve years, and became a licenced mortgage agent two years before the accident. He was very outgoing and social, hosted parties, and visited friends. He was healthy both physically and mentally and had no pre-accident conditions. After the accident, which was relatively minor, the claimant developed back and neck pain, and headaches. His mental functioning declined. He lost over 30 pounds, had no appetite, had poor short term memory, and needed assistance with basic personal care tasks. The claimant’s family believed he was depressed, and he reported being in frequent pain. He no longer entertained or visited friends. He did not return to work, and he rarely drove. The claimant’s neuropsychological assessor diagnosed the claimant with a severe pain disorder and moderate depressive disorder. She concluded that the claimant suffered Class 4 marked impairments in the above-noted spheres. The claimant’s psychological assessor made similar conclusions and conducted various testing to rule out malingering and feigning. Adjudicator Johal preferred the evidence of the claimant’s assessors over the IE assessors, who approached their role as a “detective” rather than neuropsychologist. The IE assessor also used testing methods that were not well peer-reviewed or had no validity measures. Adjudicator Johal denied the disputed chiropractic treatment because it was completed by a chiropractor, but largely proposed counselling and educational services, which were outside of the chiropractor’s scope of practice. The neuropsychological CAT assessment was approved, despite no evidence of head injury. Adjudicator Johal wrote that the request for an assessment was to show that there is a reasonable possibility that the claimant has the condition that is being investigated. The claimant did not need to show or prove that he had the condition in order for an assessment to be deemed reasonable and necessary. Finally, the triage CAT assessment was denied as there was no evidence presented why it would be required and what assessment of the claimant it would provide.

Mattina v. Federated Insurance Company of Canada (19-011267)

Post author By tgp-admin
Post date December 4, 2020
No Comments on Mattina v. Federated Insurance Company of Canada (19-011267)

The claimant sought entitlement to a treatment plan for physiotherapy. The insurer argued that it was not liable to pay the disputed treatment plan because it was not signed by the claimant or a health care professional as required by section 38(3). The insurer had not raised the issue of noncompliance with section 38(3) in its two Explanation of Benefits issued to the claimant regarding the disputed treatment plan. Adjudicator Lake found that if the insurer was not consenting to an unsigned copy of the treatment plan being received through HCAI and wanted to view the executed hardcopy on file at the clinic, it was incumbent upon the insurer to request a copy upon receipt of the electronic version. Further, Adjudicator Lake wrote that the insurer’s failure to only raise the issue at this late stage of the proceeding was inappropriate. She concluded there was no breach of section 38(3). The claimant argued that the insurer failed to comply with its obligations under section 38(8), as it provided no medical reasons for its denial of the disputed treatment plan. The insurer provided two OCF-9s that simply indicated the treatment plan was not reasonable and necessary. Adjudicator Lake determined that these reasons did not discharge the insurer’s obligations under section 38(8) as neither denial provided any details regarding the claimant’s condition that formed the basis of the insurer’s decision. The treatment plan was payable starting on the 11th business day after the insurer received the treatment plan.

C.M. v. Intact Insurance Company (18-008995)

Post author By tgp-admin
Post date December 4, 2020
No Comments on C.M. v. Intact Insurance Company (18-008995)

This is a reconsideration decision of Adjudicator Manigat. The insurer sought reconsideration of Adjudicator Manigat’s initial decision wherein she found that the claimant was entitled to the balance of a psychological treatment plan in the amount of $887.93 plus interest. The insurer submitted that the Tribunal considered the wrong issue in dispute and did not consider the issues stated in the Case Conference Report and Order. Adjudicator Manigat referred to a transcript of the hearing wherein she restated the issues in dispute and noted that the insurer did not object to these issues, despite the fact they were different than stated in the Case Conference Order. Therefore, Adjudicator Manigat held that the issues in dispute that she considered were correct, as proven by the transcript of the hearing. However, Adjudicator Manigat agreed with the insurer that she failed to consider all of the evidence before her with respect to the treatment plan. Adjudicator Manigat reviewed the evidence and agreed that the claimant failed to provide sufficient evidence that she required the balance of the disputed treatment plan. Adjudicator Manigat therefore granted the insurer’s request for reconsideration and varied the original decision.

R.K. v. Allstate Insurance (19-000502)

Post author By tgp-admin
Post date December 3, 2020
No Comments on R.K. v. Allstate Insurance (19-000502)

This is a reconsideration decision of Adjudicator Shapiro. The claimant sought reconsideration of the LAT’s dismissal of the claimant’s dispute for medical benefits. There was also a procedural issues as Adjudicator Shapiro made a finding on attendant care benefits entitlement in the first instance, despite the fact that this issue was withdrawn by the claimant. In his reconsideration decision, Adjudicator Shapiro held that while he erred in making a determination on attendant care benefits, this was not fatal to his original decision. Adjudicator Shapiro upheld his original decision on entitlement to medical benefits and amended the decision so that no order was made on attendant care benefits.

Lin v. Aviva Insurance Canada (19-006064)

Post author By tgp-admin
Post date December 3, 2020
No Comments on Lin v. Aviva Insurance Canada (19-006064)

The claimant sought to IRBs and further chiropractic treatment. The insurer raised a preliminary issue that the claimant improperly relied on three exhibits that were not previously served on the insurer and sought to have them struck. Adjudicator Norris agreed holding that the claimant failed to submit evidence to prove that the documents were previously disclosed or to explain the failure to properly disclose them. With respect to IRBs, the insurer paid the benefit until May 27, 2018, when it concluded that the claimant no longer qualified. The adjudicator agreed with the insurer’s decision, stating that the claimant failed to provide evidence that any of her healthcare professionals recommended that she refrain from her pre-accident employment as a supermarket cashier. Finally, the adjudicator found that the treatment plan for chiropractic treatment was not reasonable and necessary because the family physician’s treatment recommendations were untimely and there were no treatment records showing how or if the claimant benefitted from the treatment. The claimant’s family physician made no clear recommendations for the claimant to continue with treatment during the period leading up to and around the submission of the treatment plan.

B.M. v. Aviva Insurance Company (18-009572)

Post author By tgp-admin
Post date December 2, 2020
No Comments on B.M. v. Aviva Insurance Company (18-009572)

The claimant disputed entitlement to three treatment plans for physiotherapy and chiropractic services, and a special award. Both parties raised preliminary issues at the hearing: the claimant alleged that the insurer failed to give appropriate notice under section 38, while the insurer alleged that the claimant failed to comply with the Tribunal’s rules of disclosure when he introduced both an affidavit from himself and a written statement from his treating physiotherapist in his hearing submissions without prior notice. Vice-Chair White allowed the additional evidence submitted by the claimant, noting that the Order of Adjudicator John was “overly broad” and its only direction regarding disclosure and deadlines noted that no new evidence could be submitted after the date of the hearing. As the evidence was provided on the date of the hearing, it was allowed. Vice-Chair White ruled that the insurer did not comply with section 38 in relation to two of the disputed treatment plans, as the denial letters were insufficient in their language and medical and other reasons for the denial. The services incurred between the 11th business day and the date of the final (compliant) denial were found payable. The third disputed treatment plan was found not payable based on the chiropractic IE. Although a special award was requested in the Case Conference Order, the claimant did not raise the issue within the pleadings submitted, and as such, it was not considered.

F.J. v. Aviva Insurance Canada (18-010144)

Post author By tgp-admin
Post date December 2, 2020
No Comments on F.J. v. Aviva Insurance Canada (18-010144)

The claimant sought entitlement to NEBs and five medical benefits. Adjudicator Shapiro found that the claimant was entitled to three of the treatment plans, but not NEBs. In referencing Heath v. Economical, the adjudicator found that the claimant failed to show that she was continuously prevented from engaging in substantially all of her daily activities. She was able to continue virtually all of her pre-accident activities, albeit with some restrictions. The claimant was driving, walking, volunteering, and began her first paid-employment in ten years in the year following the accident. The claimant also argued that the insurer’s letter denying NEBs was insufficient under s. 36(4) of the Schedule. The adjudicator found that while better practice would have been for the insurer to summarize the medical findings in the denial letter, the inclusion of and referral to the medical report minimally satisfied the Schedule. If it had not, Stranges v. Allstate states that a defective notice would not automatically entitle the claimant to the benefit.

Mann v. Aviva Insurance Company (19-007477)

Post author By tgp-admin
Post date November 27, 2020
No Comments on Mann v. Aviva Insurance Company (19-007477)

The claimant sought entitlement to a psychological assessment and a chronic pain assessment, plus a special award. As a preliminary matter, the parties’ submissions refer to a disagreement over whether the psychological assessment was withdrawn with prejudice by the claimant at a previous case conference in an earlier Tribunal matter. Adjudicator Maleki-Yazdi found that the claimant could proceed with the dispute, as there was no final order from the Tribunal regarding the assessment. The claimant argued that the insurer’s denial did not comply with section 38(8), as the denial was not made within 10 business days. The insurer argued that the treatment plan was submitted to Aviva Insurance Company of Canada, a separate legal entity, and the documents were not received by the insurer nor did it have access. Furthermore, the insurer submitted that the claimant did not comply with section 38(2) because the claimant incurred the cost of the treatment plan less than 10 days after the submission. Adjudicator Maleki-Yazdi held that the evidence demonstrated that the assessment was incurred prior to the submission to the insurer and none of the exceptions listed in section 38(2) applied to the case. With respect to chronic pain assessment, Adjudicator Maleki-Yazdi held that there was evidence that, as a result of the accident, the claimant experienced an exacerbation of the constant and/or severe pain that she experienced prior to the accident. Considering how frequently the claimant visited with her family physician, the fact that there were no further assessments of either Chronic Pain Syndrome or chronic neck/back sprain during the months prior to the accident demonstrated that she was not experiencing constant and/or severe pain leading up to the date of loss. There was also evidence that the claimant experienced some functional limitations as a result of the physical pain. The chronic pain assessment was there found to be reasonable and necessary. The special award claim was dismissed.

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