Category: Medical Benefits

K.W. v. Aviva General Insurance (18-012007)

The claimant sought entitlement to a physiatry assessment and a special award. The assessment had been denied on HCAI, but no denial letter was sent to the claimant until more than two years later. Adjudicator Hines ruled that the insurer was liable to pay for the assessment in accordance with section 38, and granted a special award of 40 percent for unreasonably withholding and delaying payment.

J.T. v. Cayuga Mutual Insurance Co.(18-006061)

The claimant sought entitlement to various medical benefits and the cost of an OCF-3. Prior to the hearing, the insurer approved the denied medical benefits, leaving only two issues remaining: a special award, and payment of an OCF-3. The claimant argued that the insurer acted unreasonably by requiring her to attend IEs prior to her MIG removal and that there ample medical evidence provided that proved a non-MIG position. Adjudicator Hans did not grant a special award as the clamant had pre-existing conditions, and the medical information on file did not clearly differentiate between those issues and the accident-related issue. He ruled that it was completely in keeping with SABS and the evidence for the insurer to examine the claimant to determine her MIG status. The OCF-3 was found to be payable even though it was not requested by the insurer as it contained new medical information, including re-entitlement to a NEB.

M.D. v. Aviva General Insurance (18-006666)

The claimant sought entitlement to two treatment plans, the costs of two examinations, and a special award, as well as a determination as to the quantum of an approved income replacement benefit. Adjudicator Boyce accepted the claimant’s submission that she was entitled to an IRB in the amount of $297.88 per week, finding the calculation in the insurer’s report was incorrect. The difference being use of a 52 week period, or a 365 day period; 52 weeks was held to be the correct time period. Adjudicator Boyce also found the claimant entitled to the cost of a hydrotherapy treatment plan and outstanding transportation costs. He found that the treatment plan for physiotherapy was not reasonable and necessary, noting the opinion of Dr. Josefchak, that the claimant likely achieved maximal medical improvement from facility-based treatment. He also found the claimant was not entitled to a special award.

S.S.Z. v. Certas Direct Insurance Company (18-007365)

The claimant filed a request for reconsideration arising from a decision in which the Tribunal found that his injuries fell within the MIG. Adjudicator Kaur first addressed the insurer’s motion to exclude certain documents and submissions that were included in the claimant’s request for reconsideration. Adjudicator Kaur granted the insurer’s motion. She found that the claimant was using a psychiatric report to supplement the evidence which was already before the Tribunal in an attempt to re-argue issues that had already been decided, and that the other documents and submissions did not add anything to the case substantively, were not relevant to the issues raised, or were misleading. Adjudicator Kaur dismissed the request for reconsideration on the grounds that the claimant failed to establish she acted outside of the Tribunal’s jurisdiction or violated the rules of natural justice or procedural fairness, or that the Tribunal made a significant error of law of fact such that it would have likely reached a different decision.

N.K. v. Intact Insurance Company (19-003405)

The claimant sought entitlement to the costs of examinations in two treatment plans that were performed as part of catastrophic impairment assessments. Adjudicator Norris found that although a psychiatric assessment was performed instead of an approved psychological assessment, the psychiatric assessment was reasonable and necessary in light of the claimant’s post-concussion mental condition. The claimant was only entitled to $2,000 for the cost of the psychiatric assessment, however, as the fact that the assessment formed the basis of the catastrophic impairment determination did not entitle him to funding above the $2,000 limit on assessment costs per section 25(5)(a) of the SABS. Adjudicator Norris also found the claimant entitled to the costs of two occupational therapy assessments. Interest was found payable on both disputed treatment plans.

F.J. v Intact Insurance Company (19-004400)

The claimant sought entitlement to various medical benefits. Adjudicator Paluch found that the claimant’s claim for further physiotherapy and massage therapy was reasonable and necessary because they provided pain relief, increased her strength, and helped her emotionally and mentally.

R.T. v Coseco Insurance Company (18-004783)

The claimant filed a motion to withdraw some of the issues listed for an upcoming LAT hearing on a without-prejudice basis. The insurer submitted that the issues not identified for withdrawal (namely attendant care benefits) were still in dispute, while the claimant submitted that the issue of attendant care benefits was previously determined in a preliminary issue decision that was upheld on reconsideration. Adjudicator Punyarthi concluded that the claimant was permitted to withdraw issues without prejudice, noting that there was no basis for imposing a generalized “with prejudice” withdrawal of issues in this case. If an issue is brought back, the claimant would have a right to have that issue considered and decided on the merits. Adjudicator Punyarthi also determined that attendant care benefits were not an issue in dispute because the issue had already been decided and upheld on reconsideration, and the Tribunal could not re-hear the issue at this stage.

E.M. v Coachman Insurance Company (18-012570)

The claimant sought entitlement to medical benefits for chiropractic services, psychological services, and two examinations. Adjudicator Maleki-Yazdi found that the insurer’s denials were vague and did not provide the claimant with a meaningful explanation, so the claimant was not able to make an informed decision about whether to accept or dispute the insurer’s decision. Further, the denials did not satisfy the insurer’s obligations under section 38(8). Adjudicator Maleki-Yazdi concluded that until the insurer provided proper denials, the claimant was entitled to the costs incurred for one chiropractic treatment, one psychological treatment, and a chronic pain assessment. She found the remaining treatment plans reasonable and necessary.

W.E. v Aviva Insurance Company (18-011102)

The claimant sought removal from the MIG and entitlement to various medical benefits. Adjudicator Conway concluded that pursuant to section 38(11)(1), the insurer failed to comply with section 38(8) in its denial, and was barred from applying the MIG to the disputed benefits. While the adjudicator ultimately concluded that the disputed medical benefit was not reasonable and necessary, the insurer was required to pay for amounts incurred by the claimant.

J.K. v Aviva Insurance Company of Canada (18-008054)

The insurer submitted a request for reconsideration following a decision in which the Tribunal found that the claimant was entitled to various medical benefits. In making its decision, the Tribunal addressed a procedural issue that arose as a result of the parties not filing the OCF-18s in dispute with their written submissions and evidence. As a result, the Tribunal issued an Order directing the parties to serve on each other and file with the Tribunal a copy of the missing OCF-18s along with written submissions on whether the claimant should be permitted to file the missing OCF-18s as evidence for the written hearing. Ultimately, the Tribunal allowed the missing OCF-18s into evidence and proceeded to determine that the claimant was entitled to the treatment set out in those OCF-18s. The insurer argued that the Tribunal made significant errors of fact and law such that the Tribunal would likely have reached a different decision by finding that the missing OCF-18s were submitted by the claimant (when they were in fact submitted by the insurer), by accepting the missing OCF-18s into evidence, and by making the claimant’s case for her on arguments that were never made by the claimant. Adjudicator Lake dismissed the insurer’s request for reconsideration, noting that the Tribunal did not err in admitting the missing OCF-18s into evidence, and that while it erred in stating that the treatment plans were submitted by the claimant when they were in fact submitted by the insurer, this error would not have led the Tribunal to a different decision. Adjudicator Lake further noted that the Tribunal correctly placed the onus on the claimant to prove entitlement, and did not act as an advocate for the claimant. Rather, the Tribunal reviewed all of the evidence in the matter, which included the missing OCF-18s.