Category: Medical Benefits

J.S. v. Aviva General Insurance (18-012528)

The claimant applied to the LAT seeking entitlement to a variety of assessments and chiropractic treatment. Adjudicator Maleki-Yazdi found that three assessments and one of three treatment plans proposing chiropractic treatment were reasonable and necessary. The denied treatment plans were considered to be duplicative treatment. An attendant care assessment was found to be reasonable and necessary for the claimant who testified to having activity limitations and requiring work-related modifications as a result of the accident. The denied portion of a partially approved psychological assessment was found to be payable.

A.A. v. Unifund Assurance Company (18-008999)

The claimant had previously been deemed catastrophically impaired. She applied to the LAT seeking entitlement to ACBs, medical benefits that had been denied prior to her being deemed catastrophically impaired, and medical benefits that had been denied after she was declared catastrophically impaired. Adjudicator Punyarthi found that the claimant was entitled to ACBs, but based on surveillance and other evidence, determined that the amount payable was less than the amount being claimed. Pursuant to s. 38(2) of the SABS, Adjudicator Punyarthi found that the claimant was not entitled to payment of pre-CAT medical benefits that were incurred prior to the submission of treatment plans. The insurer raised a limitation argument against a claim for pre-CAT medical benefits that were denied more than two years before the claimant’s LAT application. Adjudicator Punyarthi found that the claimant was not barred by virtue of a missed limitation period, based on the Court of Appeal decision in Tomec. Adjudicator Punyarthi found that pelvic floor physiotherapy was not payable as there was insufficient evidence to establish on a balance of probabilities that the impairment was a result of the accident.

A.A. v. Unifund Assurance Company (18-008999)

The claimant had previously been deemed catastrophically impaired. She applied to the LAT seeking entitlement to ACBs, medical benefits that had been denied prior to her being deemed catastrophically impaired, and medical benefits that had been denied after she was declared catastrophically impaired. Adjudicator Punyarthi found that the claimant was entitled to ACBs, but based on surveillance and other evidence, determined that the amount payable was less than the amount being claimed. Pursuant to s. 38(2) of the SABS, Adjudicator Punyarthi found that the claimant was not entitled to payment of pre-CAT medical benefits that were incurred prior to the submission of treatment plans. The insurer raised a limitation argument against a claim for pre-CAT medical benefits that were denied more than two years before the claimant’s LAT application. Adjudicator Punyarthi found that the claimant was not barred by virtue of a missed limitation period, based on the Court of Appeal decision in Tomec. Adjudicator Punyarthi found that pelvic floor physiotherapy was not payable as there was insufficient evidence to establish on a balance of probabilities that the impairment was a result of the accident.

K.R. v. Certas Direct Insurance Company (19-003237)

The claimant sought payment of $11,865 for hockey training. The claimant had been actively engage in competitive hockey, and sought to regain physical strength and skill to return to pursue her goal of playing NCAA hockey. Adjudicator Parish dismissed the claim. She held that the claimant failed to comply with section 38(2) by incurring the cost before submitting a treatment plan, and that none of the exceptions to 38(2) applied. She also held that the Tribunal did not have jurisdiction to grant relief from forfeiture, but also, that it would not apply to the facts of the case.

Z.X.C. v Belair Insurance Company (19-000314)

The claimant disputed her MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Shapiro concluded that based on the medical evidence, the claimant suffered predominantly minor physical injuries – strains and sprains – as a result of the accident, and her injuries thus fell within the MIG. Adjudicator Shapiro also determined that the claimant was not entitled to IRBs as she had not proven the rate of the benefit, nor had she proven her basic entitlement to IRBs after March 24, 2017. While the claimant submitted that she provided ample documentation to calculate the rate of IRBs, Adjudicator Shapiro found that the claimant’s records conflict as to what her employment earnings were, and when she earned it, and that her hearing testimony lacked credibility to fill in the gaps. He also felt that the claimant sustained minor strains and sprains, as above, which did not cause her a substantial inability to perform her pre-accident position in any event.

T.H. v Allstate Insurance Company of Canada (19-004567)

The claimant disputed her entitlement to two denied treatment plans, one for optometric services and one for occupational therapy services. The insurer took the position that the claimant’s impairments for which she sought treatment were not sustained as a result of the accident. Adjudicator Paluch disagreed, finding that but for the accident, the claimant would not have suffered the impairments which are bases for her current claims for treatment. While he could not deny that the claimant’s pre-accident issues may have contributed to her current impairments, the post-accident evidence showed a substantial change from her noted pre-accident health issues. The claimant’s post-accident complaints were consistent and continuous and confirmed via diagnoses in the reports and clinical notes of her medical assessors and treatment providers. On that basis, Adjudicator Paluch also felt that both treatment plans were reasonable and necessary.

M.M. v Aviva General Insurance Company (18-007868)

The claimant disputed her entitlement to NEBs and medical benefits, including chiropractic services and a chronic pain assessment. The respondent challenged the claimant’s credibility through the use of surveillance video that seemingly contradicted her self-reported, accident-related limitations. The claimant was observed driving, shopping at a busy mall, interacting with store clerks, and jaywalking, all with no obvious signs of distress. Adjudicator Mazerolle noted that surveillance cannot be viewed in isolation, and a decision-maker must compare and contrast the surveillance with information obtained from other sources. In doing so, Adjudicator Mazerolle felt that the surveillance evidence raised many serious questions about the claimant’s post-accident activity levels, which allowed him to conclude that she had not met the onus to demonstrate entitlement to non-earner benefits. While Adjudicator Mazerolle did not accept that the claimant suffered a complete inability to carry on with most of her pre-accident tasks, he did accept that the accident left her with a serious pain condition (as evidenced in the family doctor’s clinical notes and records), and found the disputed medical benefits to be reasonable and necessary.

P.S. v. Aviva General Insurance Company (19-000891)

The claimant sought removal from the MIG and entitlement to various medical benefits, and argued that the insurer failed to comply with section 38. Adjudicator Maleki-Yazdi held that the claimant’s injuries fell in the MIG. However, one of the disputed treatment plans was awarded because no denial was ever provided by the insurer. An OCF-23 that was submitted by the treatment provider at the request of the insurer did not “supersede” the treatment plan; the insurer was still required to either approve or deny the treatment plan within 10 days.

P.A. v. TD General Insurance Company (19-001349)

The claimant’s spouse and children were injured in an accident. He was not involved in the accident, but claimed he suffered from psychological impairments including post-traumatic stress (PTSD), anxiety, depression and insomnia as a result of the accident. He was prescribed medical cannabis to treat the accident related impairments. The insurer paid for the medical cannabis for a period of time and then denied further claims on the basis that the medication was not reasonable and necessary. Adjudicator Reilly ruled that that medical cannabis was reasonable and necessary as the claimant had not used cannabis for years prior to the accident, had consulted numerous doctors post-accident due to mental health issues, and had quit his job to take care of his wife and children and produced numerous medical records showing psychological diagnosis post-accident as well as references to the cannabis being used to treat his post-accident conditions, which was the predominant purpose of the prescriptions.

H.M. v. The Dominion of Canada General Insurance Company (19-001752)

The claimant sought non-earner benefit, medical benefit, a special award and interest. Adjudicator Grant dismissed the claim. Adjudicator Grant held that the claimant did not suffer a complete inability to carry on a normal life as she did not meet the complete inability test based on pre-existing injuries and impairments, post-accident treatment and function of the claimant as well as the evidence of the s.44 assessors. Adjudicator Grant further held that the OCF-18 was not reasonable or necessary and the claimant was not entitled to an award or interest.

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