Category: Medical Benefits

B.L.J. v. The Co-Operators Company (18-012005)

The claimant applied to the LAT seeking entitlement to medical benefits, IRBs, and ACBs. Prior to the accident, the claimant worked full-time at a restaurant. After the accident, she was off work for several months before starting a volunteer position at a residence for assisted living that transitioned into a part-time job. She continued to work in the new part-time position into the post-104 week period. Her previous employment was no longer available to her. Adjudicator Victor found that the post-104 part-time position was substantially different from the claimant’s pre-accident position in nature, status, and remuneration. Adjudicator Victor stated: “I have difficulty finding that [the claimant] is suited to the part-time job she is undertaking, let alone the high paced, full-time job she previously held.” Adjudicator Victor found that the claimant was entitled to IRBs to date (i.e., into the post-104 period). She was not entitled to ACBs or the in-dispute occupational therapy services.

Bhullar v. TD Insurance Meloche Monnex (19-010667)

The claimant sought entitlement to two treatment plans for chiropractic services, massage therapy, and physiotherapy. The insurer submitted that it was not liable to pay either treatment plan in dispute because neither were signed by the health care provider and the claimant as required by section 38(3). The claimant argued that the first time the insurer raised the issue of non-compliance with section 38(3) was in its written hearing submissions and the insurer’s denial letters did not raise the issue of the OCF-18s being unsigned. Adjudicator Lake found that if the insurer was not consenting to an unsigned copy of the OCF-18 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 of the OCF-18 upon receipt of the electronic version through HCAI. The insurer’s decision to first raise the issue in its written submissions was inappropriate. Adjudicator Lake found that further massage therapy was reasonable, but the remainder of the claims were not proven.

D.Y. v. Aviva General Insurance (18-011171)

The insurer sought reconsideration of the Tribunal’s decision awarding payment of non-earner benefits, concussion management treatment and ordering a special award. Vice Chair Trojek granted the insurer’s request for reconsideration in part. With respect to the concussion management treatment, Vice Chair Trojek noted that the Tribunal made an error of law in not considering whether the claimant had failed to comply with the SABS because she did not submit an OCF-18, as raised in the insurer’s hearing submissions. Vice Chair Trojek also set aside the Tribunal’s decision to grant a special award because it misapplied the test (stating that a special award is granted “where the conduct of the insurer has been unreasonable or wrongly motivated”) and made a factual error (regarding the medical/rehabilitation benefits paid out by the insurer), which, had it not been made, likely would have resulted in a different decision.

M.I.A. v. Aviva General Insurance (19-000993)

The claimant disputed entitlement to eleven different treatment plans for various therapies, assessments and CAT assessments, interest and a special award. The claimant had a notable history of chronic pain in the lower back, a failed back surgery, migraines, and used a cane. The claimant argued that the treatments and assessments were reasonable and necessary as a result of the accident. The insurer argued that the claimant had failed to comply with a LAT Order to provide evidence that the disputed treatments were required as a result of the accident as opposed to his pre-existing conditions. Adjudicator Grant noted that a review of the evidence showed a long history of the claimant reporting pain to his practitioners, however, there was no mention of the subject accident and the claimant’s complaints appeared to be a continuation of his pre-accident chronic pain condition. Furthermore, Dr. Wilderman, the claimant’s chronic pain medicolegal expert, did not review pre-accident medical documentation detailing the claimant’s long history of chronic pain and a failed back surgery, but based his conclusions on the claimant’s self-reporting. Adjudicator Grant gave Dr. Wilderman’s report little weight compared to the IE assessors’ reports, who reviewed both pre-accident and post-accident records. Adjudicator Grant concluded that there was no evidence provided that would show any of the disputed benefits were reasonable and necessary as a result of the accident. The claimant’s dispute was dismissed in its entirety.

A.C.G. v. Aviva Insurance Company (19-004820)

The claimant sought entitlement to NEB, physiotherapy treatment, and a chronic pain assessment. Vice Chair McGee found that the claimant sustained an impairment that continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Vice Chair McGee assigned greater weight to the activities that the claimant identified as being important to her pre-accident life. Also, Vice Chair McGee placed considerable weight on the clinical notes and records of the claimant’s treating physician of many years which contained frequent notations of concern over the claimant’s inability to cope as a result of the accident. Further, the factors from Heath v. Economical made clear that a claimant who merely “goes through the motions” cannot be said to be “engaging in” an activity. The factual record showed a young woman “going through the motions” of caring for her children and herself in the face of incapacitating mental illness and persistent physical limitations. Therefore, the claimant was found to suffer a complete inability to carry on a normal life as a result of the accident and her accident-related incapacity was fundamentally psychological in nature. With respect to the disputed medical benefits, Vice Chair McGee held that the evidence did not demonstrate that the disputed treatment plans were reasonable and necessary. While there was evidence that the claimant found physical therapy helpful in providing temporary pain relief, there was no evidence as to her program in physical therapy, or how well her treatment goals were being met. Moreover, the claimant’s pain complaints in themselves did not warrant a diagnosis of chronic pain syndrome nor investigation by a chronic pain specialist.

P.W. v. Aviva Insurance Canada (18-000854)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision which found that the claimant was not entitled to an income replacement benefit but was entitled to an examination expense for an attendant care assessment. Adjudicator Gosio dismissed the claimant’s request for reconsideration, but granted the insurer’s request for reconsideration by ordering that the issue of the attendant care assessment be reheard. The adjudicator’s finding with respect to the attendant care assessment was based on an argument that was not raised by either of the parties in their submissions (the applicability of section 25(1)4 of the SABS), and Adjudicator Gosio agreed that the obligation is on the claimant to make their own case, rather than the insurer having to disprove the claim. However, he noted that the appropriate remedy in this case was not to vary the decision as requested by the insurer, but rather to invite both parties to make submissions on the applicability of section 25(1)4 of the SABS.

M.G. v. Aviva General Insurance Company (19-003062)

The claimant applied to the LAT seeking entitlement to housekeeping and home maintenance expenses, the cost of a chronic pain assessment, and the cost of two OCF-3s. Adjudicator Farlam dismissed the claimant’s dispute. The claimant had purchased optional HK expenses in her policy. The insurer paid HK expenses for February 11, 2017 to April 12, 2017. There is no evidence that expense forms were submitted by the claimant for April 13, 2017 to March 16, 2018. In this hearing the claimant sought HK expenses of $904.00 for March 16, 2018 to February 5, 2019, a period some 13 to 24 months post-accident. Adjudicator Farlam noted that she preferred the evidence of the insurer’s OT, who was the only assessor to observe the claimant in her house and who assessed the claimant several months after the accident, and who concluded that the claimant was able to perform housekeeping duties. Adjudicator Farlam also preferred the evidence of the IE physiatrist who noted that the claimant suffered soft tissue injuries and did not suffer a substantial inability to perform her pre-accident housekeeping tasks. With respect to the disputed chronic pain assessment, Adjudicator Farlam relied on the surveillance obtained by the insurer which showed the claimant driving in inclement weather, brushing snow off her car, walking through a parking lot, and retrieving bags from her truck. Adjudicator Farlam also noted that the claimant’s s. 25 chronic pain report did not enumerate or address the application of the criteria for chronic pain in the AMA Guides and was therefore not persuasive. The adjudicator dismissed the claims for the cost of the two disability certificates as the insurer did not request the updated OCF-3s and there was no medical evidence to suggest they were required.

P.W. v. Aviva Insurance Canada (18-000854)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision which found that the claimant was not entitled to an income replacement benefit but was entitled to an examination expense for an attendant care assessment. Adjudicator Gosio dismissed the claimant’s request for reconsideration, but granted the insurer’s request for reconsideration by ordering that the issue of the attendant care assessment be reheard. The adjudicator’s finding with respect to the attendant care assessment was based on an argument that was not raised by either of the parties in their submissions (the applicability of section 25(1)4 of the SABS), and Adjudicator Gosio agreed that the obligation is on the claimant to make their own case, rather than the insurer having to disprove the claim. However, he noted that the appropriate remedy in this case was not to vary the decision as requested by the insurer, but rather to invite both parties to make submissions on the applicability of section 25(1)4 of the SABS.

B.D. v Aviva General Insurance (18-010618)

The claimant asked for a reconsideration of part of the Tribunal’s decision regarding the denial of an orthopaedic assessment. Vice Chair Farlam was satisfied that the decision did not contain any errors of law or fact. Having accepted some of the evidence in the orthopaedic assessment did not obligate the adjudicator to find that the cost of it was reasonable and necessary. Vice Chair Farlam held that there was a distinction between finding that the claimant sustained the impairments in question apart from finding that proposed treatment was reasonable and necessary. The claimant’s suggestion that the orthopaedic assessment was a key part of the Decision which allowed three other treatment plans to be awarded, and that but for the orthopaedic assessment the decision would not have been reached, was speculation and did not establish ground for reconsideration. The claimant also argued that the adjudicator made a significant error of law or fact in failing to find that she was entitled to the cost of the orthopaedic assessment because she never received a denial notice from the insurer. However, the evidence before the Vice Chair was that the claimant did receive an appropriate denial and the date of denial of all treatment plans and examinations were agreed upon prior to the hearing. The claimant also suggested that a negative inference should be drawn against the insurer for not providing the accident benefits file and that the notice of examination was deficient. Vice Chair Farlam held that reconsideration was not an opportunity to raise new and different arguments not made at the hearing. The reconsideration was dismissed.

P.K. v. Coseco Insurance Company (19-004126)

The claimant sought entitlement to various medical benefits for physiotherapy services, representing the balances owing on several treatment plans approved by the insurer and invoiced some months after the services were incurred by the claimant. The insurer did not dispute the reasonableness and necessity of the disputed benefits, but rather that payment of the benefits would exceed the $50,000 policy cap in the SABS. Adjudicator Farlam held that the claimant was not entitled to the disputed treatment plans, noting that the $50,000 monetary limit is one prescribed by law. While there are exceptions for optional benefits and catastrophic impairment, neither exception applied in this matter.