Category: Medical Benefits

Vaillancourt v. The Guarantee Company of North America (21-008125)

The claimant was previously deemed catastrophically impaired. He applied to the LAT to resolve a dispute concerning the quantum of certain benefits, including attendant care and home modifications. Prior to the accident, the claimant managed his own consulting company, was quite active, and regularly enjoyed doing housework. The insurer denied much of the claimant’s attendant care claim on the basis that the surveillance it collected and the assessments it conducted revealed that the claimant could perform such tasks without supervision and that his post-accident impairments were overstated. Adjudicator Lundy disagreed, preferring the claimant’s framework which focused on the claimant’s functional ability to perform predictably, consistently and reliably. Adjudicator Lundy emphasized that the insurer failed to account for these principles by concluding that the snippets of surveillance it collected showing the claimant performing housework and manual labour indicated that his condition was overstated, when, in reality, the surveillance and assessments undertaken by the insurer failed to account for the fact that the claimant struggled to perform these tasks and that his condition differed on a day-to-day basis. As a result, Adjudicator Lundy found that the claimant was entitled to attendant care benefits in the amount of $6,000.00 per month. The insurer denied the claimant’s proposed home modifications on the basis that his medical/rehabilitation funds were nearly exhausted. Despite eventually designating the claimant CAT, the insurer stood firm in its denial of the proposed home modifications. Adjudicator Lundy found that the claimant fulfilled his evidentiary burden of demonstrating that the home modification assessment and all but two of the proposed home modifications (valued at $87,809.00) fit the criteria of being necessary and reasonable. Despite the insurer’s refusal to pay for the proposed attendant care and home modifications, Adjudicator Lundy found that the claimant was not entitled to a special award. The insurer had triable concerns regarding whether many of the claimant’s proposed plans were necessary and agreed that the claimant was eligible for attendant care and some home modifications, albeit not to the valuations sought by the claimant.

Gibson v. Intact Insurance Company (20-012060)

The claimant applied to the LAT for the approval of multiple treatment plans, including a treatment plan for a tractor. The insurer brought a motion to bar the claimant from disputing the entitlement to the tractor for failing to attend s. 44 IEs. The LAT added the claimant’s non-attendance at the IEs as a preliminary issue. The claimant attended the first three of the five IEs scheduled by the insurer but, despite having received notices of examination, failed to appear to the final two IEs. The claimant submitted that the additional two IEs were duplicative and unnecessary, that the delay between the first three IEs and the final two IEs was questionable, and alleged that the insurer scheduled the final two IEs as a means of “expert shopping”. The insurer contended that the two scheduled IEs qualified as reasonably necessary, the nexus between the IEs and the claimant’s injuries was made out, and that the claimant had not yet undergone neurology and orthopaedic assessments. Adjudicator Pahuta found that that there was a nexus between the claimant’s physical impairments and the two IEs and that the conclusions of the previous IEs favoured the scheduling of the two IEs. Adjudicator Pahuta further stated that the claimant’s own assessments did not negate the need for the insurer’s two IEs and that there was nothing questionable about the timing of the IEs. Adjudicator Pahuta held that the insurer’s two proposed IEs were reasonably necessary, and the claimant’s failure to attend was fatal to his ability to proceed with the dispute concerning the treatment plan for the tractor.

Aized v. The Co-operators (20-012300)

The claimant applied to the LAT for post-104 week IRBs and medical benefits, including physiotherapy services and an attendant care assessment. Prior to the accident, the claimant was employed as a student placement coordinator, which required concentration, critical thinking skills and sitting in front of a computer screen for prolonged periods of time. Despite returning to work with reduced hours and the ability to work remotely, the claimant argued that she was unable to perform the essential responsibilities of her job and that working full-time exacerbated her pain. The insurer argued that the claimant was substantially able to perform the tasks of her pre-accident employment with modified duties and, therefore, she did not suffer from a complete inability to engage in any employment for which she was reasonably suited. Having regard to the deterioration in the claimant’s psychological condition and the pain caused by the accident, Vice-Chair Logan found that, although the claimant was substantially unable to perform the essential tasks of her pre-accident employment, she was still capable of engaging in alternative employment for which she was reasonably suited. Vice-Chair Logan held that a claimant’s ability to perform “some, albeit not all” of the responsibilities of their pre-accident employment strongly indicates that they are able to continue to engage in their pre-accident employment and in alternate forms of employment that they may be reasonably equipped for. As a result, the claimant was only entitled to pre-104 week IRBs. Vice-Chair Logan concluded that the claimant had no objective quantifiable physical impairments from the accident and refrained from seeking out physiotherapy earlier upon being advised by her physician. In addition, Vice-Chair Logan held that an attendant care assessment was not reasonable or necessary given that the claimant did not suffer from any residual physical impairments and could not draw upon her treatment plan as evidence that attests to the need for an attendant care assessment. As a result, the claimant was not entitled to medical benefits.

Kokulanthan v. TD General Insurance Company (20-011886)

The insurer raised a preliminary issue, arguing that the claimant’s entitlement to medical benefits and IRBs was barred for non-attendance at s. 44 examinations. Adjudicator Tavlin Kaur found that the insurer’s notices of examination in relation to IRBs did not comply with the SABS as they did not refer at all to the claimant’s medical conditions or the SABS provisions on which the insurer relied. The claimant was permitted to continue to a hearing for her IRB claim. Adjudicator Kaur found that the insurer’s notice with respect to medical benefits was satisfactory as it referenced the MIG, medical and rehabilitation benefits, and the claimant’s medical condition. The claimant’s claims relating to medical and rehabilitation benefits were barred from proceeding to a hearing. Adjudicator Kaur declined to exercise her discretion to allow the claimant to continue with these issues as she had not provided reasons for her non-attendance at the insurer examinations, nor had she made any written submissions at the preliminary issue hearing.

Rupani v. Travelers Insurance Company of Canada (21-004893/AABS0

The catastrophically-impaired claimant brought an application to dispute medical and housekeeping benefits. Her claim for housekeeping was denied because she was unable to establish that the workers that she hired had provided services in the scope of employment they ordinarily engaged in. Adjudicator Grant found that it was not enough for the claimant’s hired workers to have claimed to be certified professionals on Kijiji. Adjudicator Grant held that the treatment plan for an emotional support dog was denied under s. 38 because the claimant had incurred the expense prior to submitting the treatment plan. Finally, Adjudicator Grant found that the claimant’s treatment plan for lidocaine injections was not reasonable or necessary. The claimant was noted to have stated in her medical records that she did not find the injections helpful, and several of her treatment providers had opined that the injections were not reasonable or necessary.

Zhu v. The Co-operators General Insurance Company (20-012105/AABS)

The claimant applied to the LAT to dispute entitlement to NEBs, various medical benefits, and an OCF-6 for clothing and eyewear. Adjudicator Neilson found that the claimant had not established that he suffered a complete inability to return to his pre-accident life .The claimant failed to include in his submissions evidence to support his claims for clothing and eyewear. Adjudicator Neilson granted $2,594 of a denied physiotherapy treatment plan because the insurer had failed to explain why it had reduced the approved hourly rate for the treatment. She denied the remaining $1,475.48 of the treatment plan because the claimant failed to provide evidence or reasons to refute the insurer’s IE report in which the assessor recommended that the claimant engage in self-directed exercises rather than physiotherapy. The claimant first complained of back pain nearly one year after the accident. Adjudicator Neilson stated that the claimant could not establish that the back pain was caused by the accident, given the length of time between the date of the accident and the claimant’s first complaint. She denied two treatment plans for physical therapy that were proposed in July 2020, over one year after the date of the accident. Adjudicator Neilson awarded the claimant the disputed treatment plan for psychological services. The insurer had refused the treatment plan on the basis that the claimant’s psychological impairments were not a “direct result” of the accident. Adjudicator Neilson found that s. 15 of the SABS required an impairment to be “a result” of the accident and not a “direct result”.

Shaikh v. Economical Insurance Company (20-009837/AABS)

The claimant brought a LAT application to dispute NEBs and his MIG designation. Adjudicator Flude found that the claimant was not entitled to NEBs because he had failed to submit a signed application for NEBs until June 8, 2020, approximately a year after the accident of July 16, 2019. Adjudicator Flude confirmed that an application for NEBs could not be considered complete until a signed OCF-3 has been submitted. The claimant was found to be ineligible for NEBs in the period following the submission of his application because he failed to respond to a s. 33 request issued by the insurer. Adjudicator Flude also found that the claimant’s injuries fell within the MIG. The claimant had failed to report his significant pre-accident history with his medical examiners, which rendered their diagnoses regarding his impairments unreliable. The Adjudicator noted that the claimant’s medical records reflected an improvement of his symptoms from July 2019 to November 2019. He drew an adverse inference from the claimant’s failure to produce further medical records after November 2019 and opined that the records would have reflected an improvement of the claimant’s symptoms. Adjudicator Flude concluded that the claimant did not suffer from chronic pain syndrome as a result of the accident and that his injuries were minor in nature.

Han v. Wawanesa Mutual Insurance Company (21-014475)

The claimant disputed entitlement to a physiatry assessment proposed three years after the accident but which was never incurred. Because the LAT dispute would not be determined until after the expiry of the five year policy period, the insurer brought a motion arguing that the disputed assessment could not be awarded because it was not incurred within the five year policy period. Vice Chair Flude dismissed the motion, holding that the claimant’s right to payment of the assessment did not lapse as of the five year mark. Vice Chair Flude reasoned that entitlement under the SABS could not be rendered void as a result of the Tribunal’s dispute resolution timelines, and that the date of submission of the treatment plan was the relevant date to consider. The insurer could not escape liability by delays resulting from the dispute process.

Prillo v. Coseco Insurance Company (20-014401/AABS-R)

The claimant filed a request for reconsideration arising from an October 14, 2022 decision, in which Adjudicator Pahuta ruled that the claimant sustained “minor injuries” and was not entitled to further treatment outside of the MIG. The claimant filed for reconsideration under Rule 18.2 (b), alleging that Adjudicator Pahuta made an error of law or fact. The claimant also argued that they suffered from chronic pain, which would remove them from the MIG. Adjudicator Pahuta noted that the claimant’s evidence was considered in full, including the chronic pain report of Dr. Robertus, which was weighed against the overall medical evidence and family doctor records showing only minor pain complaints post-accident, with most entries being for unrelated issues. The claimant made several other allegations, including that pre-accident back pain and osteoporosis would have resulted in a MIG removal, an OCF-3 was not properly considered, and that the disputed OCF-18s were not properly viewed for necessity. Adjudicator Pahuta noted that many of these arguments were not made in the original submissions, and it appeared that the claimant was attempting to re-litigate the original issues by way of making alternative arguments not originally made at the hearing. While all of the issues brought up by the claimant were considered, the same issues were now being re-argued with several new and alternative arguments being introduced. As the claimant’s evidence related to issues already fully considered and addressed in the original decision, the request for reconsideration was denied.

Jeffery v. Travelers Insurance Company of Canada (20-013979/AABS)

The claimant was denied IRBs and medical benefits and sought entitlements to the benefits along with a Special Award from the Tribunal. The Tribunal held that the claimant was not entitled to IRBs or medical benefits for physiotherapy treatment. The adjudicator held that since no benefits were owed to the claimant, a s. 10 award was not applicable. The adjudicator found that the insurer did not comply with s. 36(4), which required that the insurer shall pay the benefit or give notice with medical reasons and any other reasons why it will not pay the benefit within 10 days of receiving an application and completed disability certificate. The insurer did provide notice to the claimant but did not provide medical reasons for refusing the application and relied on the fact that the claimant returned to work within 7 days of the accident. In addition, the insurer’s notice was not considered proper as it did not include the right to appeal the decision. Eventually, the insurer provided the proper notice with the appropriate medical reasons. The statutory entitlement for breaching s. 36(4) was determined to be for the period where the claimant was not given the proper notice. However, since the claimant was working during the period of statutory entitlement, the claimant’s actual entitlement was nil.