Category: Medical Benefits

A.M. v. Certas Home and Auto Insurance (19-002869)

The claimant disputed entitlement to numerous treatments plans and ACBs in the amount of $6,142.59 per month from November 29, 2018 and ongoing. The claimant was diagnosed with Parkinson’s Disease and Dementia pre-accident, as well as headaches and ear pain. The insurer argued that the benefits claimed were for the claimant’s pre-existing conditions, and that he had only sustained minor soft tissues injuries as a direct result of the subject accident, and were therefore not reasonable or necessary. Adjudicator Watt noted that a review of the pre-accident medical records showed that the claimant was suffering from all of the alleged accident-related complaints long before the subject accident, that the claimant’s own expert reports were often contradictory and lacked compelling arguments as to why the proposed treatments were reasonable and necessary as a result of the accident. further, some of the disputed benefits were available to the claimant through OHIP. The claimant’s own statement’s that he was independent with personal care, along with a lack of evidence that any proposed ACBs would be as a result of the accident, and not his pre-existing conditions, resulted in the claim for attendant care being dismissed along with the rest of the Application.

K.V. v. Aviva General Insurance Company (19-006030)

The claimant sought entitlement to one treatment plan for chiropractic services. Adjudicator Cavdar concluded that the claimant had not adduced sufficient evidence to demonstrate that the proposed treatment plan was both reasonable and necessary. The decision was based on the fact that the treatment plans did not shed light on how the proposed chiropractic services would provide relief to the claimant based on the symptoms she was suffering at the time. The insurer also raised the procedural issue that the claimant’s written submissions should be struck in their entirety as they were submitted late and in breach of the Case Conference Order. The insurer further noted that the claimant submitted certain documentary evidence upon which it sought to rely more than one month after the deadline. The insurer sought an order that the claimant’s submissions be struck in their entirety or the records submitted late be struck, or if allowed to rely on the records submitted, the insurer be permitted a further right to respond. Adjudicator Cavdar found that it would not be procedurally fair to the claimant to strike the day-late submissions. Further, Adjudicator Cavdar wrote that it was not unduly prejudice to the insurer because the prejudice of striking the claimant’s day-late submissions outweighed any prejudice the insurer would be subjected to. Adjudicator Cavdar held that it would also be procedurally unfair to strike the evidence adduced by the claimant even though it was a month late and in violation of the Order. This was because the claimant provided a clear avenue to the insurer to garner sufficient additional time to review said evidence and submit its responding arguments at a date that was mutually agreeable. The claimant consented to pushing back the hearing date and the date of the insurer’s submissions, however, the insurer declined this offer and did not provide any explanation.

I.D.F. v. Aviva General Insurance Company (19-008993)

The claimant sought entitlement to four treatment plans for physiotherapy and other goods and services. The claimant submitted that he suffered from chronic back pain and required constant treatment. He argued that without treatment and medication, his condition would regress and his daily activities and function were reduced. Adjudicator Boyce found that the claimant’s reports of pain were consistent throughout the clinical file and his back-pain flare ups were documented in the records of his family physician. Further, Adjudicator Boyce agreed that the claimant’s timeline provided support for his contention that the cessation of treatment led to regression and an increase in pain. Therefore, Adjudicator Boyce found it reasonable to permit the claimant to undergo one more slate of physiotherapy and massage treatment in order to address his lingering pain. The goals of the plan were achievable and the cost was not exorbitant. Also, the claimant submitted that his previous anti-inflammatory and muscle relaxant did not provide adequate pain relief, necessitating a prescription for CBD oil. Adjudicator Boyce agreed that the medical records demonstrated that other pain-relief medicines had already been prescribed and had been shown to be ineffective. The treatment plan was clear on what was being prescribed and the report from Spark Cannabis confirmed that CBD oil was prescribed. Accordingly, Adjudicator Boyce held that the claimant was entitled to partial payment in the amount of $1,370.00 for the CBD oil treatment plan. The items listed as “assessment” and “prescription” were not reasonable and necessary expenses. The claimant was not entitled to the remaining treatment plans.

F.K. v. TD Home and Auto Insurance Company (18-008114)

The claimant sought entitlement to NEBs, ACBs, and psychological treatment. Adjudicator Gosio rejected the claims for NEBs and ACBs, and found that the psychological treatment plan was disputed more than two years after the denial. The claimant failed to lead sufficient evidence that the accident was the cause of her impairments, as she had extensive pre-accident injuries and impairments. Adjudicator Gosio also rejected the claimant’s argument that the “material contribution” test should apply. Regarding the claim for ACBs, the adjudicator again noted that the claimant was receiving personal care in relation to an earlier accident and that she failed to prove that further care was required as a result of the subject accident. The disputed psychological treatment was denied more than two years prior to the LAT application.

B.H.X. v. Aviva General Insurance (19-002556)

The claimant sought entitlement to NEBs, a psychological assessment, and the cost of a plastic surgery consult. Adjudicator Norris dismissed the claims for NEBs and plastic surgery consult, but awarded the psychological assessment. The claimant failed to provide evidence supporting NEB entitlement, and his self-reporting suggested he was in fact more active after the accident, and he maintained independence with personal care, meal preparation, and household chores. The plastic surgery consult was incurred prior to the submission of the treatment plan, so it was not payable. The psychological assessment was found reasonable and necessary, but not payable because it was not incurred.

N.F. v. Aviva Insurance Canada (18-007077)

The claimant sought entitlement to IRBs and a chronic pain assessment. In addition to denying entitlement to the claimed benefits, the insurer disputed what the weekly quantum of IRBs would be. Adjudicator Mazerolle concluded that the claimant was entitled to IRBs and the chronic pain assessment. The claimant worked as a restaurant manager and his accident-related impairments prevented him from his job demands. Adjudicator Mazerolle accepted that the quantum of IRB was to be determined based on a revised tax return (which supported IRBs of $400 per week), rather than the original tax return (which showed almost no pre-accident earnings)

Levey v. Aviva Insurance Company (19-006014)

The claimant applied to the LAT seeking entitlement to psychological services and the balance of a partially approved OCF-18 for driving lessons. Adjudicator Parish found that the claimant was not entitled to the disputed benefits. Adjudicator Parish noted that the OCF-18 for psychological services was completed by a psychologist, but the claimant previously received and only wanted therapy from a particular psychotherapist, who was not listed as the service provider on the OCF-18. The rates proposed on the OCF-18 were the rates for a psychologist, as per the Professional Services Guidelines. Adjudicator Parish did not accept that a psychotherapist should be paid the same rate as a psychologist. Adjudicator Parish also found that the psychological services were not payable as the claimant had failed to comply with the insurer’s section 33 requests. The balance of the partially approved OCF-18 for driving lessons was not payable as the hourly rates approved by the insurer were reasonable.

K.P. v. Aviva General Insurance (19-001985)

The claimant applied to the LAT seeking entitlement to a treatment plan for cannabis therapy. The claimant argued that the proposed benefits were reasonable and necessary for treatment of chronic pain and disturbed sleep. The insurer argued that the cannabis treatment was not reasonable and necessary as a result of the accident, as the claimant smoked marijuana for years prior to the accident and continued to smoke the same amount of marijuana after the accident. Adjudicator Boyce found that pain relief is a legitimate goal of treatment, and that the proposed cannabis treatment was reasonable and necessary.

R.A. v. Aviva Insurance Company (19-002890)

The claimant applied to the LAT for entitlement to ACBs, a variety of OCF-18s for treatment and assessments, the cost of a psychological pre-screen, the cost of two OCF-3s, and a special award. Based on monthly invoices for ACBs (all in the same amount), which did not particularize the exact dates or times services were provided or provide information about the service provider, Adjudicator Lake was unable to find on a balance of probabilities that the applicant had received attendant care services. Adjudicator Lake found that a failure to advise the claimant of eligibility for ACBs upon removal of the MIG did not constitute an unreasonable withholding or delaying of benefits. ACBs were not deemed to be incurred pursuant to section 3(8). Pursuant to s. 38(11), Adjudicator Lake found benefits proposed in multiple OCF-18s were payable because the insurer did not include specific details about the claimant’s medical condition in its denial letters. Adjudicator Lake found that the claimant was not entitled to ACBs, the cost of the psychological pre-screen, the cost of the two OCF-3s, chronic pain treatment, psychological treatment, a driver re-integration program, or OCF-18s that were duplicates of other approved OCF-18s. The claimant was entitled to shockwave therapy, a psychological assessment, a chronic pain assessment, and an exercise program.

K.P. v. Aviva General Insurance (19-001985)

The claimant disputed his entitlement to a treatment plan for medical cannabis, which the insurer denied based on an IE report that determined that medical cannabis was not reasonable and necessary to treat the claimant’s chronic pain. The insurer further noted that the claimant smoked marijuana daily for several years prior to the accident (and continued to do so after the accident), and argued that it was unreasonable for the claimant to ask the insurer to pay for the same amount of marijuana that he smoked previously. Nonetheless, Adjudicator Boyce held that the claimant was entitled to the cost of the treatment plan, plus interest, as it was reasonable and necessary. She preferred the recommendations of the claimant’s chronic pain specialist and cannabis clinic physician, who both believed that medical cannabis was appropriate, over the opinion of the IE assessor.