Category: Medical Benefits

B.M. v. Unica Insurance Inc. (19-009381)

The claimant sought entitlement to two medical benefits for physiotherapy and occupational therapy services. The claimant had a significant pre-accident medical history that included a workplace accident, two separate motor vehicle accidents in 2013, chronic lumbar radiculopathy, and chronic lower back pain. He was also involved in a subsequent motor vehicle accident in 2016 after the subject accident. The insurer argued that the disputed treatment plans fail the test for causation. The claimant submitted the disputed treatment plans shortly after the 2016 accident. The insurer argued that the claimant ought to have commenced an accident benefits claim in relation to that loss. The claimant argued that the accident need not be the sole cause of the injuries in order to meet the “but for” test as established in Sabadash v. State Farm. Vice Chair McGee found that the subject accident met this threshold and deemed the two treatment plans to be reasonable and necessary. An issue was also raised as to whether the insurer satisfied the IE notice requirements in section 44(5) of the Schedule. The insurer sent IE notices to the claimant, but omitted crucial information as to the reasons for the sought examination. The notices simply stated “Rescheduled assessment” and “RESCHEDULED” as the reasons. Vice Chair McGee found that the insurer’s notice was patently deficient. Neither of the IE notices provided comprehensible “medical or other reasons” for the requested examinations. She reasoned that an insured person should not be expected to piece together “medical or other reasons” for an examination from disparate notices and correspondence or to advise an insurer of deficiencies in those notices so they may be corrected. Vice Chair McGee concluded that the appropriate remedy was the exclusion of the IE reports.

Marca v. Aviva Insurance Company (19-004839)

The claimant sought entitlement to NEBs, a medical benefit for physiotherapy services, interest on overdue payment of benefits, and an award. The claimant argued that she had partially resumed some activities post-accident but not at all. The claimant also argued that even though she had returned partially to her personal care, she experienced pain when performing these activities. Adjudicator Farlam found that the claimant was not entitled to an NEB for a number of reasons. The first was that the claimant’s self-reporting of her post-accident capabilities in the OCF-12 did not establish a complete inability to carry on a normal life as a result of the accident. The claimant indicated that she could “partially” do all of her pre-accident activities except washing floors, sewing, dancing and dance instructing. The Disability Certificate was given little weight given the lack of detail and explanation that the disability was temporary. The rest of the records put forward did not establish that the claimant was completely unable to carry on a normal life and only showed minor injuries. With respect to the disputed treatment plan, the claimant submitted that the treatment plan was reasonable and necessary to deal with her pain, help regain strength and improve her range of motion. The insurer argued that the treatment plan was not reasonable and necessary because the claimant, by having already received rehabilitation treatment, had achieved the plan’s proposed goals. Adjudicator Farlam found that the disputed treatment plan was reasonable and necessary, in part. The claimant had experienced enough improvement as a result of this treatment that it was reasonable and necessary to allow her treatment to be continued and the overall costs of achieving her goals was reasonable. However, Adjudicator Farlam agreed that the insurer was not required to pay for the assessment and two treatment sessions that were incurred before the plan was submitted.

A.J. v. Aviva General Insurance (19-010794)

The claimant disputed entitled to two treatment plans for physiotherapy and chiropractic services. The insurer disputed the claimant’s entitlement based upon IE reports, and argued that new evidence was submitted in the claimant’s reply submissions were prejudicial. The insurer, by way of motion, requested that the new evidence was improperly submitted and requested it be struck from the hearing record. Adjudicator Grant partially agreed with the insurer regarding the striking of evidence. Adjudicator Grant noted that the right of reply was limited, and reply arguments were not the place to make new arguments or submit new evidence. The paragraphs containing new evidence or arguments were struck, and the paragraphs containing new medical claims (i.e., chronic pain) were struck as well as they were not supported by any previous evidence or arguments. The claimant argued that he was unable to include the new arguments in his original submissions due to COVID 19. Adjudicator Grant did not accept this argument, noting that the claimant could have communicated his inability to meet the submission deadline to the parties to ensure action was taken, and noted that the insurer was prejudiced by the late filing and new evidence as it was unable to mount a defence to the same or reply in kind. Adjudicator Grant determined that the disputed treatment plan for physiotherapy services was reasonable and necessary as both the claimant’s expert report and the IE assessor had reached similar conclusions regarding his physical status. The treatment plan for chiropractic services was not reasonable or necessary as it recommended an exercise bike and home exercises, which did not require the direct supervision of a chiropractor.

M.E.R v. Aviva General Insurance Company (17-008924)

The claimant applied to the LAT seeking entitlement to ACBs in the amount of $2,479 per month and various medical benefits for physical treatment, psychological treatment, occupational therapy services, an orthopaedic mattress, the cost of clothing and personal expenses, and transportation expenses. The claimant was a pedestrian injured in a motor vehicle accident in a parking lot. The insurer’s Form 1 initially recommended ACBs in the amount of $297.76 per month. A subsequent insurer’s Form 1 recommended $0.00 for ACBs. The assessor opined that the provision of unnecessary support for self care tasks would promote unnecessary dependency on external supports which is not required in the course of rehabilitation. Adjudicator Gosio found that there was no objective evidence of ongoing physical impairments in the left upper extremities, and the insurer’s Form 1s were reasonable. The claimant was entitled to chiropractic and physiotherapy treatment, and ACBs in the amount of $297.76 per month for 10 months. Adjudicator Gosio found that the claimant failed to establish that 90-minute sessions of psychotherapy, as opposed to the approved 60-minute sessions, were reasonable and necessary. Pursuant to section 55 of the SABS, the claimant was barred from disputing entitlement to the orthopaedic mattress as she had failed to attend an IE assessment.

A.M. v. Zurich Insurance Company Ltd. (19-009920)

The claimant was being transported by the Ontario Provincial Police in the rear box of a prisoner’s transportation van. During the transport, the van struck a moose and the claimant, handcuffed and shackled, was thrown towards the front of the van, suffering physical and psychological injuries. He applied for and received accident benefits from the insurer for the OPP. He applied to the LAT seeking entitlement to further medical benefits. Adjudicator Boyce found that the claimant was not entitled to the disputed benefits because he had not proven they were reasonable and necessary, and the claimant had failed to comply with section 33 requests for productions. Adjudicator Boyce noted that no records from a family doctor or objective medical professional were submitted into evidence, and simply reproducing the particulars of an OCF-18 was insufficient to prove a proposed benefit is reasonable and necessary. Adjudicator Boyce further noted that the insurer was not required to pay for treatment for impairments that pre-dated the accident, such as addiction issues and personality disorder. Adjudicator Boyce found that the level of driving anxiety was so mild it did not warrant a diagnosis. In addition, it was found that treatment for driving anxiety was no longer relevant as the claimant was required to surrender his driver’s licence following a conviction for an offence. A proposed functional abilities assessment was considered not appropriate as the claimant was not employed prior to the accident and was not seeking IRBs. There was no evidence to support the need for an adjustable bed and mattress.

P.M. v. Aviva General Insurance (19-002717)

The claimant sought removal from the MIG and entitlement to medical benefits for physiotherapy, massage therapy as well as the cost of psychological and physiatry assessments, and completion of an OCF-3. The claimant also sought a special award. Adjudicator Lake found the claimant’s injuries were outside of the MIG due to her chronic pain, but held she was only entitled to medical benefits for physical treatment and the cost of the psychology assessment. Adjudicator Lake also considered the claimant’s section 38 denials of benefits, and held that there were deficiencies. The insurer referred to the $3,500 funding limit under the MIG and enclosed portions of the SABS relating to the MIG, but did not advise the claimant that the MIG applied to her accident related impairments. Further, the insurer never cured the deficient notices, so benefits were payable if incurred more than 10 business days after submission. She also rejected the argument that benefits had to be incurred to be payable under section 38(11), as the section only said that benefits had to “related to” the period of non-compliance, not that they needed to be incurred. Adjudicator Lake rejected the special award claim, reasoning that the insurer’s failure to comply with its obligations under section 38 of the SABS did not amount to an unreasonable withholding or delay in payment of benefits.

N.S. v TD General Insurance Company (19-002494)

The claimant applied to the LAT disputing entitlement to various treatment plans and interest. The claim was outside the MIG, so Adjudicator Norris had to determine whether the treatment plans were reasonable and necessary. Adjudicator Norris found that the physical therapy and OT treatment plans were reasonable and necessary. Adjudicator Norris noted that with his approval of benefits, the insurer would have approved treatment plans over the policy limits ($50,000). Adjudicator Norris found that the insurer and the claimant had to decide which benefits the claimant would incur within the policy limits and his role as Adjudicator was only to decide on the reasonableness of the treatment plans and not how they would be paid out.

I.A. v. TD General Insurance Company (19-006142)

The claimant disputed entitled to 7 treatment plans for chiropractic treatment. The insurer argued that the claimant had filed his submissions two and half months late and requested that the submissions be excluded in their entirety, and sought costs. Adjudicator Grant noted that excluding the claimant’s submissions in their entirety would be severely prejudicial to the claimant and would lead to an unfair result. Adjudicator Grant further noted that although the submissions were submitted well beyond the deadline, the insurer was able to submit a response which appeared to address all of the issue in dispute, and that any prejudice suffered by the insurer would be minimal. Adjudicator Grant ruled that the disputed treatment plans for further chiropractic treatments were not reasonable or necessary. He noted that nowhere in the claimant’s submissions did his treating doctors recommend further chiropractic treatments. Adjudicator Grant awarded the insurer $300 in costs for the claimant’s late filing of submissions, reasoning that the award would deter and prevent such behaviour in the future.

J.C. v. Aviva General Insurance Company (19-004734)

The claimant sought entitlement to various medical benefits, including medical cannabis, physical treatment, and a chronic pain program. The insurer argued that the claimant could not dispute two of the treatment plans due to IE non-attendance. The claimant responded that it wasn’t reasonable to request a psychiatric assessment for the medical cannabis. Adjudicator Johal found the insurer’s IE notice complied with section 44, and rejected the claimant’s argument that the IE request was not reasonable. The claimant was therefore barred from disputing the two treatment plans due to section 55. With regard to the remaining treatment plans, Adjudicator Johal held that the claimant failed to prove that the proposed treatments were reasonable and necessary, and dismissed the claims.

G.R. v. Aviva General Insurance Company (18-004375)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision awarding seven medical benefits, denying attendant care expenses, and granting a special award on a functional impairment assessment, which had been deemed incurred. The claimant argued that ACBs should have been awarded and should have been deemed incurred under section 3(8). Adjudicator Mazerolle rejected the claimant’s reconsideration request holding that the claimant had not incurred any ACBs, and that the Tribunal made no error in not deeming the expenses incurred. He also rejected the argument that McMichael v. Belair applied, reasoning that it was decided under an earlier version of the SABS that did not require attendant care services to be incurred. Adjudicator Mazerolle granted the insurer’s reconsideration request in relation to the functional impairment assessment. He accepted that the insurer was not given an opportunity to respond to the argument that it should be deemed incurred under section 3(8). He requested that both parties make submissions on whether the insurer’s unreasonable withholding or delay in payment of the functional impairment led the claimant not to incur the expense.