Category: Medical Benefits

V.F. v. Aviva Insurance Company of Canada (19-004249)

The claimant disputed his entitled to a treatment plan for physiotherapy services. Adjudicator Leslie found that the treatment plan was not reasonable and necessary, emphasizing the claimant’s significant pre-accident history of back pain (for which he was receiving regular physiotherapy treatment prior to the accident) and the fact that the insurer had approved ongoing physiotherapy services for 3.5 years post-accident. While Adjudicator Leslie accepted that the claimant may still have some pain, she was unable to determine whether 3.5 years of treatment had resolved the pain conditions caused by the accident and questioned whether the prolonged treatment reflected a sign of reasonableness/necessity for continued similar treatment, or whether it reflected a sign of dependence. She ultimately chose to prefer the evidence of the IE assessor who recommended that the claimant pursue self-directed activities rather than further facility based treatment.

J.R. v. Aviva Insurance Company (19-006160)

The claimant disputed his MIG determination, as well as entitlement to attendant care benefits in the amount of $138.09 per month and various medical benefits. Adjudicator Boyce found the claimant to be unsuccessful on all of the disputed issues. The claimant’s argument for removal from the MIG centred around his psychological impairments, relying on a psychological pre-screen interview report. Adjudicator Boyce did not find the pre-screen report compelling because it included no preliminary diagnosis or suggestion that the claimant met DSM-V criteria. Further, the claimant’s family doctor records made no reference to accident-related psychological complaints. As the claimant’s injuries fell within the MIG, he was not entitled to attendant care benefits or the disputed non-MIG treatment plans.

A.D. v. TD General Insurance Company (19-005432)

The claimant disputed his entitlement to in-home attendant care assessment. Section 20(2)(a) of the SABS states that no attendant care benefits are payable for expenses incurred more than 104 weeks post-accident unless the claimant sustained a catastrophic impairment. Given that the proposed assessment was requested over 6 years post-accident and the claimant was not catastrophically impaired, Adjudicator Hines determined that the claimant was not entitled to the disputed attendant care assessment.

K.W. v. Aviva General Insurance (18-006969)

The claimant requested a reconsideration of the Tribunal’s decision denying various medical benefits and IRBs, seeking an order quashing the decision and ordering a rehearing on all parts of the matter. Adjudicator Watt dismissed the applicant’s request, noting that his decision set out the evidence, the law, and why he gave more weight to some arguments over others. He emphasized that a reconsideration is not an opportunity to re-argue positions that previously failed before the Tribunal or to have evidence re-weighed.

A.L. v. Unica Insurance Inc. (18-008890)

The claimant sought a determination of a catastrophic impairment based on a WPI in excess of 55 percent. He also sought entitlement to ACBs, the denied portion of CAT assessments, and various medical benefits. Adjudicator Lake concluded that the claimant did not suffer a catastrophic impairment. She rejected the claimant’s experts opinions on WPI for mental or behavioural impairments because it relied on opinions from other experts which those experts later retracted. Even if all other WPI were accepted, the claimant would only have a 42 percent WPI. The ACBs claim was dismissed because it was for a period beyond the 104 week mark. Adjudicator Lake agreed with the claimant that CAT assessments were not paid out of the medical benefits limits, and found that six of proposed seven assessments were reasonable. Finally, Adjudicator Lake held that the treatment plans for further physiotherapy were reasonable and necessary, but that the claims for assistive devices, an attendant care assessment, and a two-part neuropsychological examination were not.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

H.A. v. Aviva General Insurance Company (18-012325)

The claimant sought entitlement to the cost of an EMG study. Adjudicator Hines concluded that the insurer’s section 38 notice was non-compliant because it was too vague. However, the EMG study had been incurred 10 days (rather than 10 business days) after submission of the OCF-18. Because it was incurred too soon after submission of the OCF-18, it was not payable under section 38(11)(2).

A.A.J. v. Echelon General Insurance Company (19-000961)

The claimant sought entitlement to IRBs for a one month period when he was in non-compliance with IE requests, and a treatment plan for chiropractic services. Adjudicator Boyce rejected all of the excuses provided by the claimant for his non-attendance as being unreasonable or not believable. The insurer rescheduled the IEs on multiple occasions and the claimant was provided with notices to the address on his OCF-1 and to his counsel. The treatment plan was found not reasonable and necessary based on the opinions of IE assessors.

Z.A. v. Certas Home and Auto Insurance Company (19-001119)

The claimant sought entitlement to transportation expenses and a special award. Adjudicator Boyce dismissed both claims. The claimant failed to provide evidence regarding the transportation expenses, her home address, the address of the clinic, or an invoice for the transportation. Looking to the OCF-18, the longest one-way route between the addresses listed was well under the 50 kilometer deductible for non-catastrophic claims.