Category: Medical Benefits

K.K. v. Aviva General Insurance (18-012611)

The claimant sought entitlement to post-104 week IRBs, physiotherapy, and a special award. Adjudicator Mather granted the claim for ongoing IRBs, but dismissed the claim for further physical therapy. She also granted a special award of 50 percent on IRBs. The claimant was a self-employed taxi driver for over a decade prior to the accident. He suffered a concussion in the subject accident which led to psychological impairments. He was also in a second accident and made a claim for accident benefits with the same insurer. The insurer denied IRBs based on IEs completed with regard to the subject accident (which concluded he did not have a psychological disorder) despite having IEs from the second accident in which the claimant was diagnosed with major depressive disorder, general anxiety, panic attacks, and vehicular phobia. The psychological IE in the subject accident ignored various relevant factors and cherry-picked evidence that was supportive of denying IRBs (such as the claimant attempting a return to work for a few hours per day). Given the claimant’s lack of other relevant job experience and poor English skills, there were no other potential types of employment that were suitable for him. Adjudicator Mather found the insurer’s denial of IRBs to be unacceptable. She held that the insurer failed in its adjusting of the claim by ignoring the psychological diagnoses in its own IEs related to the second accident. She also noted that the insurer continued to approve psychotherapy while taking the position the claimant did not have a psychological impairment preventing him from working. The claimed physiotherapy was dismissed as the claimant did not provide evidence of the need for further physical therapy. He also failed to provide evidence of treatment received to date or the progress that physical treatment provided.

J.O. v. Aviva Insurance Canada (19-007565)

The claimant disputed his entitlement to various treatment plans. The insurer argued that the claimant and his treatment provider failed to comply with section 38(2), 49.1, and 64 of the SABS, and that none of the treatment plans were payable. Adjudicator Grant held that each of the noted provisions were mandatory and the claimant’s failure to comply led to the treatment plans not being payable. Section 38(2) required the claimant to submit the treatment plans prior to receiving the proposed treatment; he did not do so. Section 49.1 required an unlicensed provider to deliver a printed invoice to the claimant, who was required to submit the invoice to the insurer; that did not occur. Section 64 required registration with HCAI by the treatment provider and submission of OCF-21s through HCAI; the treatment provided did not follow these requirements.

Polidori v. Motor Vehicle Accident Claims Fund (19-009160)

The claimant sought entitlement to an in-home assessment and a special award. The insurer had an occupational therapy IE to address the proposed assessment. The questions posed to the occupational therapist were suggestive of the answers the Fund wished to receive. The occupational therapist assessed the claimant’s abilities, but was unable to diagnose the cause of his impairments. The Fund then sought an orthopedic IE, which was then changed to a physiatry IE. The claimant did not attend the IE and argued that the insurer could not request the further IE, and should have made the request at the same time as the occupational therapy IE. Vice Chair McGee awarded the proposed in-home assessment, finding that the medical records from the claimant’s family physician made clear that the assessment was reasonable and necessary. She held that the Fund’s request for the physiatry IE was not reasonable. The Fund should have known from the outset that an occupational therapist could not diagnose the cause of the claimant’s impairments. She also held that the Fund had tried to have the occupational therapist opine on matters it knew were outside of her expertise. Vice Chair McGee granted a special award of 40 percent against the Fund. She found the Fund’s decision to maintain the denial of the assessment was unreasonable and that its dealings with the claimant and the requested IEs was blameworthy conduct. The claimant was an elderly man struck as a pedestrian, and more vulnerable than the average car accident victim, warranting a higher special award.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

K.A.J. v. Aviva General Insurance (19-007068)

The claimant sought entitlement to a chronic pain assessment. Adjudicator Goela held that the assessment was not reasonable and necessary, and not payable. Additionally, she held that the treatment plan did not comply with section 38(3) as it was not signed by the claimant or the proposed assessor, nor did assessor provide information or opinion that the assessment was reasonable and necessary. On technical grounds alone, the treatment plan would not have been payable.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant requested reconsideration of the Tribunal’s decision that her claim for NEBs and medical benefits was barred by the limitation period. She argued that the Tribunal should have applied Tomec v. Economical to conclude that the claimant could not have discovered her claim until receiving an MRI result. Adjudicator Johal dismissed the reconsideration. He held that there was no error with respect to the doctrine of discoverability. The MRI report had no bearing on the claimant being aware of her need for treatment or her activities of normal life. He also noted that the insurer had not “pre-emptively denied” the claim for NEBs or physiotherapy as had occurred in Tomec.

Amitofski v. Traders General Insurance Company (19-008148)

The claimant sought entitlement to NEBs and further physiotherapy treatment. Adjudicator Johal dismissed both claims. He held that the claimant failed to provide evidence of her pre-accident and post-accident activities, so the Tribunal could not consider what change was caused by the accident. He also noted that the claimant was on ODSP for 20 years prior to the accident for previous injuries and impairments. The claimant failed to address two earlier motor vehicle accidents and their effect on her normal life. The claim for further physiotherapy was also denied. The claimant did not provide any evidence from her family physician or treatment providers to support the goals of further passive therapy.

P.S. v. Allstate Insurance (18-012633)

The claimant was seriously injured in a 2013 accident and sought a determination that he suffered a catastrophic impairment due to a combined WPI of 55 percent. He also sought entitlement to three treatment plans for further physiotherapy and psychotherapy. The claimant suffered from chronic pain and abused opioids as a result of his injuries. He also suffered cognitive issues from a traumatic brain injury. The claimant was unable to work as a result of these effects. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment. There was agreement between the parties that the claimant’s physical injuries had a total WPI of 17 percent. The disagreement focused on the neuropsychological impairment, psychological impairment, and equivalent WPI. Adjudicator Hines accepted the claimant’s expert’s opinion that impairment existed under Table 2 of Chapter 4 (neurocognitive), but did not agree with applying the high end of the range (14 percent). She was critical of the executive summary physician applying the WPI rather than the claimant’s neuropsychologist. She accepted the evidence from the neuropsychologist’s expert testimony that she would have given a rating of 12 percent WPI. With regard to psychological impairment, the claimant was diagnosed with major depressive disorder, and somatic symptom disorder. None of the claimant’s assessors or the insurer’s assessors found any Class 4 Marked Impairments. Both assessors agreed that there were Class 3 Moderate Impairments in Activities of Daily Living, and Adaptation. The differences of opinion existed with regard to Social Functioning, and Concentration, Persistence, and Pace. Adjudicator Hines accepted the opinions of the claimant’s expert who rated him Class 3 Moderate Impairment in both of these spheres of function. In order to convert the rating into a WPI, the claimant’s expert argued that a range of 30 to 40 percent WPI was appropriate by using a GAF score of 45 to 50. The insurer’s expert, who found slightly lower impairment in the two disputed spheres of function, opined that the claimant’s GAF was 54 to 56, which he converted into 21 to 24 percent WPI. Adjudicator Hines was critical of the range provided by the claimant’s expert, and noted that despite no findings of Class 4 Marked Impairments, the WPI range was equivalent to such. She was again critical of the claimant’s psychologist leaving it to the executive summary physician to provide the WPI range. She concluded that the appropriate WPI was 29 percent, based on the insurer’s expert’s testimony that all four Class 3 Moderate Impairments would not exceed that number. The total WPI was 48 percent, which was insufficient to be deemed a catastrophic impairment. However, Adjudicator Hines did award all three claimed treatment plans based on the claimant’s ongoing impairments and the coping and relief the treatment provided. The adjudicator noted that the insurer was only responsible for payment on the treatment plans up to the remaining medical benefits limits of $50,000.

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