Category: Medical Benefits

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.

B.S. v. Aviva Insurance Canada (19-001828)

The claimant sought removal from the MIG and entitlement to physiotherapy and two assessments. Adjudicator Maleki-Yazdi found that the claimant’s injuries fell outside of the MIG and that the claimant was entitled to all three treatment plans. Additionally, she concluded that the insurer’s section 38 notices were deficient. All three denials were similarly worded and simply stated that there was no “compelling evidence that shows that your injuries do not fall within the Minor Injury Guideline.” No further details regarding the “compelling evidence” was provided. The adjudicator held that the denials were vague and did not provide the claimant with meaningful explanation for the denials to allow her to make an informed decision about whether to accept or dispute the decision. Subsequent denials following the IEs did provide meaningful explanation, but the insurer would have been required to pay for all incurred treatment up to the date of the proper denial.

D.L. v. Aviva Insurance Canada (19-001860)

The claimant sought entitlement to CAT assessments totalling more than $26,000, as well as four treatment plans for passive physical therapy, and a psychological assessment. Vice Chair Farlam rejected the claims. While accepting that assessments are speculative in nature, the claimant failed to prove that there was any reasonable basis to investigate whether the he was catastrophically impaired. There was insufficient objective evidence to suggest a WPI of 55 percent or a marked impairment in three or more areas of function. Vice Chair Farlam noted that by the time the claimant had proposed the CAT assessments he was working, doing child care, exercising at the gym, doing home renovations, and was not using prescription medications. For similar reasons, the claimed physical therapy and psychological assessment were denied.

R.T. v. Aviva General Insurance (19-007347)

The claimant sought entitlement to IRBs and further physiotherapy treatment. Adjudicator Watt dismissed both claims. He held that the claimant failed to submit evidence that would prove that pain prevented her from returning to work. He also noted that the claimant was self-limiting in assessments and that objective testing showed full ranges of motion. The proposed treatment plan did not comment on why further passive therapy was required, or what relief may result from further treatment. The claimant was found to have met maximal medical recovery from such treatment.

F.C. v. Aviva Insurance Canada (18-001359)

The insurer sought reconsideration of the Tribunal’s decision awarding NEBs and a treatment plan for failure to comply with sections 36 and 38, respectively. Adjudicator Boyce dismissed the reconsideration. He held that Stranges v Allstate was not good law in relation to the current version of the SABS, which required payment of NEBs until a proper denial is given to the claimant. He also rejected that the Tribunal should apply section 7 of the LAT Act in the insurer’s favour to cure the lack of NEBs denial.

A.D.W. v. Aviva Insurance Company (18-012150)

The claimant sought entitlement to NEBs and one treatment plan for physiotherapy. Adjudicator Watt dismissed both claims. The claimant did not provide evidence of the comparison of his pre-accident and post-accident life. Further, the claimant admitted to doctors that he was independent with personal care, gardening, cooking, and yard work. With regard to physical treatment, Adjudicator Watt held that there was no evidence of the need for further facility based treatment.

M.R. v. Aviva General Insurance Company (18-006946)

The claimant sought payment of treatment plans seeking chiropractic treatment and a chronic pain program. The claimant argued that some of the denials were non-compliant with section 38 of the SABS. The insurer argued that some of the treatment plans were denied more than two years after the denial and were time barred. Adjudicator Norris found one of the treatment plans to be barred by the limitation period as it was denied in compliance with section 38, and the claimant failed to provide reasons why section 7 of the LAT Act should extend the limitation period. A treatment plan for chiropractic therapy was denied without adequate medical reasons. It only stated that the treatment plan was identical to an earlier treatment plan which was denied by IE, but failed to set out those earlier reasons for denial. Another treatment plan for chiropractic treatment was denied but the correspondence did not indicate the MIG applied. Nevertheless, Adjudicator Norris concluded that the proposed treatment was not reasonable and necessary. Finally, a chronic pain program was denied two months after submission. The treatment plan was found not reasonable and necessary, but the insurer was required to pay for amounts incurred up to the date of denial.

C.G. v. The Guarantee Company of North America (17-007300)

The claimant had a number of pre-accident injuries and impairments. She suffered an exacerbation of her conditions in the accident. She sought entitlement to NEBs, removal from the MIG, and two assessment costs. The insurer argued that the claimant’s impairments were not caused by the accident. Adjudicator Johal accepted that the accident did cause an exacerbation of pre-existing injuries that would otherwise have not occurred. She also concluded that the claimant suffered chronic pain as a result of the accident given that her pain persisted for more than six months, and her injuries therefore did not fall within the MIG; this conclusion was made without a specific diagnosis of chronic pain. The claimed psychological assessment was awarded, but the denied in-home assessment was not as the medical evidence suggested that the claimant remained independent with personal care. The claim for NEBs was also dismissed. The claimant failed to provide evidence that her post-accident life was significantly different than her pre-accident life.

C.G. v. The Guarantee Company of North America (17-007300)

The claimant had a number of pre-accident injuries and impairments. She suffered an exacerbation of her conditions in the accident. She sought entitlement to NEBs, removal from the MIG, and two assessment costs. The insurer argued that the claimant’s impairments were not caused by the accident. Adjudicator Johal accepted that the accident did cause an exacerbation of pre-existing injuries that would otherwise have not occurred. She also concluded that the claimant suffered chronic pain as a result of the accident given that her pain persisted for more than six months, and her injuries therefore did not fall within the MIG; this conclusion was made without a specific diagnosis of chronic pain. The claimed psychological assessment was awarded, but the denied in-home assessment was not as the medical evidence suggested that the claimant remained independent with personal care. The claim for NEBs was also dismissed. The claimant failed to provide evidence that her post-accident life was significantly different than her pre-accident life.

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