Category: Medical Benefits

H.C. v. Aviva Insurance Company of Canada (19-003063)

The claimant sought attendant care and medical benefits for chiropractic treatment and a psychological assessment plus interest. The insurer had paid various medical and rehab benefits as well as ACBs. It denied the ACBs after the 104 week mark as the claimant was not deemed catastrophically impaired. The insurer also denied the chiropractic treatment and psychological assessment based on IEs that determined they were not reasonable or necessary. The claimant argued that the insurer was required to resume payment of ACBs because she had made a catastrophic impairment application. In regard to ongoing ACBs, Adjudicator Boyce found while an OCF-19 had been submitted and CAT assessments had been scheduled, there was no dispute between the parties that the claimant had not yet been found catastrophically impaired and as submitted by the insurer, that issue was not before the Tribunal at this time. Adjudicator Boyce also found the insurer’s denial notice of ACBs clearly indicated the insurer’s position and since there was no dispute the claimant was not yet deemed catastrophically impaired, the exception under section 20(3) of the SABS was not triggered. It, therefore, followed that the claimant was not entitled to ongoing ACBs for the period in dispute that fell outside the two year mark by section 20(2) of the SABS. With respect to the disputed chiropractic treatment, Adjudicator Boyce agreed with the IE opinions based on the medical evidence. Adjudicator Boyce found the claimant did not satisfy her burden to show why another psychological assessment was reasonable and necessary or why the assessment was not a duplication of assessments already conducted in the same year and to date.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought a catastrophic impairment based on a 55 percent impairment, IRBs, housekeeping expenses, and medical benefits. The insurer argued that the claimant’s impairment arose from an earlier workplace accident, and that he was not entitled to any of the claimed benefits or a catastrophic impairment designation. Adjudicator Flude agreed with the insurer and dismissed the claims. He held that the claimant failed to prove that the accident was the cause of his impairments. The primary issue related to tears in the shoulder. Adjudicator Flude held that that tears were a result of the workplace injury, and not the accident. Further, he found that the claimant’s experts wrongly attributed 18 percent WPI for potential future surgery, holding that the SABS did not permit speculative future impairment in the WPI calculation. He also concluded that the three percent WPI for medication was not proper to include because it related to medications for conditions unrelated to the accident. Without those percentages, the claimant’s total WPI was below 55 percent. Adjudicator Flude also concluded that the claimant was not entitled to IRBs because he was not working at the time of the accident. The housekeeping expenses were denied as well. Only after the accident did he re-start his carpentry business. Finally, the claimed medical benefits were denied because they related to treatment for the shoulder, and the claimant also failed to prove that the treatment was providing relief.

Pereira v. Aviva General Insurance Company (19-010861)

The claimant sought entitlement to two medical benefits for chiropractic treatment and interest. In addition to the two treatment plans that the parties agreed would be addressed in the written hearing, the claimant’s initial submissions addressed a number of new issues that were not contained in his application to the Tribunal, that were not raised or addressed at the case conference and were not confirmed in the Case Conference Order as being properly in dispute. The claimant also filed a Notice of Motion with the Tribunal seeking to add 15 additional issues or amendments to the written hearing, the bulk of which were those addressed in his initial submissions but were not captured by the Case Conference Order or addressed by the insurer in its response. Adjudicator Boyce noted that granting the claimant’s request to add additional issues at this stage in the proceeding would be procedurally and substantively unfair to the insurer and would not result in a fair and open process. Accordingly, the claimant’s motion was dismissed without prejudice, as these issues and sub-issues would require a fresh application in order to proceed properly and fairly and in order to afford the insurer the requisite amount of procedural fairness. With respect to the medical benefits, the claimant submitted that because he was not aware of the insurer’s denial of the treatments he incurred in this current dispute he continued to submit expenses via OCF-6 and not via the requested OCF-18 treatment plans. Adjudicator Boyce held that section 38(2) was triggered because the claimant incurred all of the chiropractic treatment prior to submission of the treatment plans in dispute. The adjudicator agreed that none of the section 38(2) exceptions applied to the claimant’s case and held that there was no issues with any of the insurer’s denial notices, with its adjusting of the claimant’s claims or its reliance on IEs.

K.K. v. Aviva Insurance Canada (19-001300)

The self-represented claimant sought IRBs, medical benefits, interest, and a special award. Adjudicator Lake dismissed the claims. With respect to the claim for IRBs, Adjudicator Lake found that the insurer’s surveillance was persuasive as it showed the claimant working at a construction site completing various physical tasks, including carrying two cinderblocks. Adjudicator Lake also noted that the claimant’s evidence was inconsistent with respect to when he returned to work and the claimant did not submit any evidence of his post-accident work status, income, or pay stubs. Adjudicator Lake noted that when she attempted to ask the claimant about his post-accident earnings, he provided vague answers. With respect to medical benefits, Adjudicator Lake relied on the records of the claimant’s general practitioner and the IE report to conclude that the proposed treatment plans were not reasonable or necessary. In particular, Adjudicator Lake noted that at no time did the claimant general practitioner recommend chiropractic treatment.

S.K. v. Aviva Insurance Canada (19-001127)

The claimant sought entitlement to ACBs, the balance of a partially approved social work assessment (seeking a higher hourly rate), and the cost of catastrophic impairment assessments. The insurer had denied ACBs on the basis that the claimant had not received the claims services and that insufficient information was provided regarding the services allegedly provided. The insurer denied the catastrophic impairment assessments because the claimant proposed them only one year after the accident. Adjudicator Grieves concluded that the claimant was entitled to ACBs of $3,000 per month, subject to the claimant proving that the services had been incurred. She accepted that the claimant required personal care services due to post-accident ankle surgery and knee surgery. She rejected the insurer’s position that surveillance suggested that the claimant was not receiving the services claimed, as the claimant and her family members were able to explain why the claimant and personal care workers were not seen at her house on certain days. Adjudicator Grieves also rejected the insurer’s argument that the payable ACB was calculated based on the specific service provided multiplied by the hourly rate for that service set out in the Professional Services Guideline. She held that the purpose of the hourly rates was to calculate the maximum ACB payable, and that the amount payable by the insurer was based on the rate charged by the service provider (provided that it was reasonable and not excessive) for whichever services were provided, subject to the statutory maximum and/or the Form 1 total. The denied portion of the social work assessment was also awarded. Adjudicator Grieves held that $135 per hour was a reasonable rate for a social worker, rather than the $100 approved by the insurer. Finally, the catastrophic impairment assessments were denied as being not reasonable. Although the claimant was approaching her combined medical and ACBs limit, she could not apply for a catastrophic impairment until the two year mark unless her condition was unlikely to improve. The medical evidence suggested that the claimant continued to show medical improvement. Additionally, the assessors proposing the catastrophic assessments did not explain why each of the proposed assessments was reasonable or necessary.

M.G. v. Echelon General Insurance Company (18-002005)

The claimant sought entitlement to a neuropsychological assessment, physiotherapy, occupational therapy, attendant care assessment, and assistive devices, a special award. As a preliminary matter, the claimant sought to exclude surveillance evidence and bar the insurer from cross-examining her on an affidavit from an earlier proceeding. Adjudicator Neilson allowed the insurer to cross-examine the claimant on the affidavit, as it was evidence and was relevant to the issues in dispute. The surveillance was permitted to be entered into evidence despite the insurer not producing the full unedited video because the insurer had attempted to obtain same and did not have the video in its possession. Adjudicator Neilson awarded the attendant care assessment, occupational therapy, and physiotherapy. However, mileage fees, transportation costs, and documentation support activities from the attendant care assessment were not payable. The neuropsychological assessment was denied as it was duplicative of an approved neuropsychological assessment, which the claimant had split into two portions to avoid the $2,000 cap on assessments. Adjudicator Neilson also granted a special award of 35 percent on the attendant care assessment. It had been denied when the claimant was in the MIG, and the insurer did not reconsider the denial after the claimant was removed from the MIG.

L.P.C. v. Aviva Insurance Canada (19-001009)

The claimant applied to the LAT requesting ongoing IRBs, removal from the MIG, various medical benefits, and a special award. Before the hearing, the insurer removed the claimant from the MIG, approved the four disputed treatment plans, and approved IRBs up to the 104 week mark. The claimant continued with the claim for post-104 week IRBs and a special award. Adjudicator Shapiro held that the claimant suffered a complete inability to engage in any employment, and awarded post-104 week IRBs. The claimant had been approved for CPP Disability Benefits and LTD benefits in relation to the same injuries. The claimant had limited formal education, worked in a physical job before the accident, and had only rudimentary English skills. The IEs the insurer relied on were form only four months after the accident, and failed to consider the psychological impairments that continued to worsen over time. The surveillance of the claimant did not demonstrate abilities in excess of what the claimant or her treatment providers were reporting. Adjudicator Shapiro also granted a special award of 30 percent on the medical benefits that had been denied based on the MIG. The insurer’s psychological IE had noted a psychological diagnosis, but also stated that it could be treated within the MIG. The insurer ought to have removed the claimant from the MIG once it was aware of the diagnosis. The IE assessor’s opinion about treatment being available within the MIG limits was a legal conclusion rather than a medical opinion, which the insurer should have known not to accept. No special award was given on IRBs as the medical evidence supporting post-104 week IRBs was only provided to the insurer close to the hearing date.

Salvi v. CUMIS General Insurance Company (19-005573)

The claimant sought entitlement to ACBs and various medical benefits for occupational therapy services, assistive devices, and chiropractic services. Adjudicator Paluch rejected the claim for ACBs and most of the medical benefits, but allowed the claims for assistive devices and one of the occupational therapy services. Regarding the ACBs claim, the claimant failed to prove that any services were incurred. The claimant’s affidavit submitted in support of the claim was vague and unhelpful as it did not provide specific details of services, times, duration, level of care, and no exhibits were provided from care providers detailing this information either. Adjudicator Paluch also questioned how the claimant could require 10 hours of supervisory care when the medical evidence was clear that the claimant could respond to an emergency independently. The adjudicator declined to deem the expenses incurred under section 3(8) as the claimant failed to advance any arguments, analysis, or evidence how the insurer unreasonably withheld or delayed payment, other than stating in a general way that the benefits were wrongfully denied. Adjudicator Paluch awarded the claim for a new mattress because there was evidence that the claimant had poor sleep as a result of her injuries and the new mattress did provide improved sleep. A portion of claimed occupational therapy sessions were also awarded because the insurer’s denial did not comply with section 38(8) (no medical reason was provided as to why the proposed treatment was “quite excessive”). Adjudicator Paluch was critical of the claimant’s failure to provide documentation as ordered in the Case Conference Order. Claimant’s counsel insisted on payment for records before production of same, despite the Order not requiring the insurer to pay for the records. Once the records were in the claimant’s possession, she should have provided them. Her failure to do so prevented the Tribunal from having the ability to review the complete clinical notes and records.

Viera v. Aviva General Insurance (19-007227)

The claimant sought entitlement to a chronic pain assessment, and argued that the insurer’s denial did not comply with section 38(8). Adjudicator Lake agreed that the insurer’s denial did not comply with section 38(8), as none of the denials included any specific details about the claimant’s condition forming the basis of the insurer’s decision and only generally referred to the claimant’s injuries without any details or explanation. There was also no medical reason for the denial. The final denial contained a number of grammatical errors that made it unclear to an unsophisticated person, nor did it stated that the proposed assessment was not reasonable and necessary. The special award claim was dismissed. The adjudicator held that the failure to comply with section 38(8) did not meet the burden for a special award. The insurer simply misapplied the SABS.

Baranov v. Aviva General Insurance (19-011094)

The claimant applied to the LAT disputing the quantum of IRBs he was entitled to. He also claimed the denied portions of two psychological treatment plans. The claimant was self-employed prior to the accident as a renovation contractor. He elected to use the 52 weeks of earnings prior to the accident rather than the last completed taxation year. Adjudicator Farlam accepted the accounting report of the insurer as it was based on the documentation provided by the claimant. The claimant’s own accountant used various assumptions and oral evidence from the claimant that was not supported by financial documentation. For example, the claimant did not provide purchase orders, invoices, sales summary, or time records. Adjudicator Farlam also denied the disputed portions of the psychological treatment plans. She accepted that the insurer’s decision to allow $99.75 per hour for psychotherapy was appropriate (rather than the $224.42 per hour claimed). She also held that the claimant failed to prove why “documentation support activity” was reasonable and necessary. The special award claim was also dismissed. The insurer’s delay in payment of IRBs was due to the claimant’s failure to provide financial documentation.