Category: Medical Benefits

Darwich v. The Co-operators (20-015268)

Post author By tgp-admin
Post date March 27, 2023
No Comments on Darwich v. The Co-operators (20-015268)

The claimant applied to the LAT for a catastrophic impairment designation and the cost of a private addiction treatment centre. The claimant suffered injuries from an accident that culminated in him being prescribed increasingly higher amounts of morphine to relieve his accident-related back pain. At some point, the claimant’s historic substance abuse issues, which were dormant for many years, had resurfaced and he relapsed. The claimant subsequently turned to illicit drugs to cope with his pain and stress. He was diagnosed with polysubstance abuse disorder, depression and somatic symptom disorder. While the claimant was on a positive trajectory after completing an in-patient drug treatment program, he eventually relapsed while battling cancer and passed away shortly after the LAT hearing . Given that the claimant passed away shortly after the LAT hearing, the question of catastrophic impairment was rendered moot. The sole issue remaining was whether the claimant’s attendance at the private addiction treatment centre was reasonable and necessary. Adjudicator Norris considered whether the accident caused the claimant to experience depression, somatic symptom disorder and to relapse into polysubstance disorder. Adjudicator Norris held that the accident need not be the sole cause of the claimant’s injuries but need only be found to be a factor that materially contributed to the injuries. Adjudicator Norris concluded that the claimant’s polysubstance use disorder was directly caused by the accident, and the in-patient treatment program was an accident-related expense. Even though the addiction treatment received by the claimant could have been covered by OHIP, Adjudicator Norris found that it was reasonable and necessary, as expert evidence revealed that the urgency of the situation required immediate treatment and certain on-site care that an OHIP-funded facility could not provide for.

Shwaluk v. Royal & Sun Alliance (20-000137)

Post author By tgp-admin
Post date March 15, 2023
No Comments on Shwaluk v. Royal & Sun Alliance (20-000137)

The claimant was injured in a 1994 accident. She received benefit under the relevant SABS until at least 1996. In 2015, the claimant contacted the insurer and requested that her claim be re-opened as her accident-related impairments had worsened, and that she required 24-hour supervisory care. The insurer agreed that care was required, but disputed the amount of time needed for care, and the amount of the indexed attendant care benefit. The claimant also disputed entitlement to various medical benefits for physical therapy and sought a special award. Vice Chair Todd agreed with the claimant’s proposed attendant care services and accepted that the claimant required supervisory care for severe tremors that impacted her physical safety and would prevent her from engaging with her environment in an emergency. Vice Chair Todd also awarded all the disputed treatment plans for the deteriorating physical condition the claimant demonstrated. Finally, Vice Chair Todd granted a 50 percent special award on ACBs and medical benefits, holding that the insurer’s decision to challenge the cause of the claimant’s injuries only upon re-opening the claim in 2015 (and not at any point during the original adjusting of the claim in the 1990s). The insurer’s behaviour suggested that it did not review the medical records on file from the 1990s. Additionally, the insurer took four years to fully investigate and respond to the 2015 request to re-open the claim.

Krzweski v. CUMIS General Insurance Company (20-013665)

Post author By tgp-admin
Post date March 9, 2023
No Comments on Krzweski v. CUMIS General Insurance Company (20-013665)

The claimant disputed entitlement to a chronic pain assessment and a psychological assessment. The claimant argued that in denying these plans, the insurer did not specify a medical basis for the denial or request further medical documentation from the claimant. The claimant further contended that the insurer failed to provide a medical ground for maintaining the MIG designation of the claimant, and that, regardless of whether the proposed treatment plans were deemed reasonable and necessary, sections 38(8) and 38(11) of the SABS preclude the insurer from maintaining such designation. The insurer argued that, contrary to section 33.1(1) of the SABS, the claimant failed to provide her family doctor’s CNRs in support of her proposed OCF-18s as requested until approximately two years after the accident. Furthermore, the insurer submitted that sections 38(8) and 38(11) of the SABS were fulfilled by its request for the CNRs. Adjudicator Roswell preferred the insurer’s argument, holding that insurers have the right to reject treatment and assessment plans during the time when a claimant is eligible for goods and services under the MIG where the claimant submits requested medical information past the deadline specified in the SABS and does not exhaust the MIG. A medical basis is only a prerequisite for an insurer’s denial of proposed OCF-18s where the relevant medical records are produced by the claimant in the time frame prescribed by 33.1(1) of the SABS, which the claimant failed to do. Adjudicator Roswell also noted that, under s.38(6) of the SABS, the insurer’s decision to refuse a treatment and assessment plan under s. 38(5) is final and cannot be reviewed. Therefore, Adjudicator Roswell found that the insurer’s denial notice was sufficient. In addition, Adjudicator Roswell held that the claimant’s pre-existing psychological conditions, evidenced in the CNRs, constituted evidence sufficient to remove the claimant from the MIG.

Hutchinson v. Aviva General Insurance Company (2023 ONSC 1472)

Post author By tgp-admin
Post date March 6, 2023
No Comments on Hutchinson v. Aviva General Insurance Company (2023 ONSC 1472)

The claimant appealed the Tribunal’s decision that she was not entitled to various medical benefits. The claimant argued that the Tribunal’s refusal to convert the videoconference hearing to a written hearing was a breach of procedural fairness and natural justice. The claimant’s counsel had argued that the claimant was unable to participate in the hearing due to psychological injuries, but provided no evidence in support of the motion. The Tribunal rejected the motion and the matter proceeded by videoconference, and the claimant called no evidence. The Court rejected the appeal, holding that the Tribunal’s processes were fair and the decision to proceed with the videoconference was not a breach of procedural fairness or natural justice. The claimant was given the opportunity to make submissions on the motion and the Tribunal provided written reasons for its decision. The Court also rejected the argument that the adjudicator was biased.

Chu v. Unica Insurance Inc. (20-001934)

Post author By tgp-admin
Post date February 28, 2023
No Comments on Chu v. Unica Insurance Inc. (20-001934)

The claimant applied to the LAT for a catastrophic impairment designation under Criteria 8. She had already exhausted her $65,000 non-CAT policy limit. The claimant bore the onus of proving on a balance of probabilities that she had a “Marked” or Class 4 impairment in at least three of the four domains set out in the AMA Guides. Adjudicator Forbes noted that a “Marked” impairment sufficient for a CAT designation requires the claimant to show that their impairments “significantly impede useful functioning.” In conducting this analysis, Adjudicator Forbes emphasized that it was crucial that the claimant’s pre- and post-accident functions be accounted for based on the available medical and documentary evidence. Adjudicator Forbes found that the medical and documentary evidence showed that the claimant had pre-existing limitations on her daily life before the accident, which were not significantly impeded by the accident, and that the claimant’s post-accident condition showed signs of improvement. Adjudicator Forbes held that the presence of “some” post-accident limitations on a claimant’s useful functioning does not rise to the high bar of significantly impeded useful functioning. As a result, the claimant was not deemed CAT and no further medical/rehabilitation benefits were payable.

Wicks v Intact Insurance Company (20-011457)

Post author By tgp-admin
Post date February 15, 2023
No Comments on Wicks v Intact Insurance Company (20-011457)

The claimant disputed entitlement to vocational/academic training services, a mattress, a massage chair, and a Stairmaster. The Tribunal found that the claimant did not meet the burden of proving that the disputed benefits were reasonable and necessary. Despite recommendations from occupational therapists and physicians, there was a lack of supporting medical evidence to justify the proposed treatment plans. The appeal was dismissed.

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

Post author By tgp-admin
Post date February 14, 2023
No Comments on 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)

Post author By tgp-admin
Post date February 8, 2023
No Comments on 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)

Post author By tgp-admin
Post date February 6, 2023
No Comments on 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)

Post author By tgp-admin
Post date February 2, 2023
No Comments on 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.

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