Category: Medical Benefits

H.M. v. Intact Insurance Company (18-003979)

The claimant sought entitlement to a treatment plan for physiotherapy, and cost of examinations for a neurological assessment and a chronic pain assessment. Adjudicator Johal reviewed the medical records on file, which indicated numerous treating practitioners’ opinion that further physiotherapy would be beneficial, and concluded that the disputed treatment for ongoing physiotherapy was reasonable and necessary as the claimant did not have to prove his injuries were “substantive”, only that the need for the treatment was reasonable and necessary. Adjudicator Johal dismissed the claims for the denied examination for a neurology assessment as the treating neurologists on file did not recommend it in their records, and in fact, only recommended further physiotherapy. The chronic pain assessment was denied because while the treating practitioner diagnosed the claimant with chronic pain, there was no indication that a further assessment was required.

S.A. v. Aviva Insurance Canada (19-000995)

The claimant disputed entitlement to two treatment plans for treatments focused on neurological and concussive injuries. Adjudicator Norris noted that the claimant appeared to have predominantly psychological injuries as a result of the accident. He cited the insurer examination reports of Dr. Smyth (neurologist) and Dr. Belfon (physician) as holding greater weight than the claimant’s evidence. Adjudicator Norris also noted that primary reason for the claimant’s visits to her family doctor was in fact to report psychological symptoms, and not symptoms related to neurological or concussive symptoms. He also gave little weight to the section 25 report of Dr. Horseman (chiropractor) as it was not accompanied by any records or test results to substantiate Dr. Horseman’s conclusions. Adjudicator Norris found the treatment plans not reasonable and necessary and denied any interest.

A.H. v. Aviva Insurance Canada (18-004237)

The claimant disputed her entitlement to a treatment plan for chiropractic services. Vice-Chair Farlam concluded that the disputed treatment plan was not necessary. Although the claimant consistently complained of back pain from 2015 to 2019, a review of the medical evidence did not show a direct relation to proposed treatments and subject accident as the claimant had pre-existing back pain, had been involved in two prior accidents, and the subject accident was only directly mentioned a few times; and at one point, was not mentioned for a period of two years.

S.L. v. Aviva Insurance Company of Canada (19-002783)

The claimant sought entitlement to income replacement benefits and to medical benefits proposed in eight treatment plans, and the cost of $26,400 for catastrophic impairment assessments. The claimant argued that he suffered from pre-existing lower back pain which was exacerbated as a result of the accident and would prevent him from reaching maximum recovery under the MIG. Adjudicator Lester found that the claimant’s pre-existing strains did not remove him from the MIG and the claimant did not have a chronic pain disorder, therefore, the MIG limits applied. Adjudicator Lester concluded that the claimant exhausted all funding under the MIG and he was not entitled to any of the treatment plans in dispute. Adjudicator Lester found that the claimant suffered a substantial inability to perform the essential tasks of his employment and was entitled to IRB for a period of four months. Adjudicator Lester noted that the claimant was also entitled to interest for the IRB.

Aviva General Insurance v. Khan (2020 ONSC 1290)

The insurer sought judicial review of the Tribunal’s decision to award various medical benefits. The Court reviewed the Tribunal’s decision on a correctness standard and dismissed the appeal. It agreed with the insurer that a benefit could not be deemed incurred without a specific finding that the insurer unreasonably withheld or delayed payment of a benefit. However, the Court also wrote that the Tribunal’s decision made it clear that the benefit had been incurred because the services were provided and the claimant owed money to the treatment provider.

S.F. v. Aviva Insurance Company of Canada (18-012486)

The claimant sought entitlement to the costs of three assessments for examinations and one treatment plan for assistive devices. Adjudicator Norris found that the claimant was not entitled to any of the benefits. Adjudicator Norris concluded that the Neurological, FAE, and In-Home Ergonomics assessments were not reasonable and necessary as a result of the accident. The claimant did not submit the disputed treatment plan, and as a result Adjudicator Norris had to rely on the IE report. Adjudicator Norris concluded that the treatment plan was not reasonable and necessary as the devices were predominately for neck, back, and shoulder injuries and the claimant reported no such impairments.

S.P. v. Jevco (19-001613)

The claimant sought entitlement to income replacement benefits, to the costs of four assessments for examinations, to four treatment plans for physiotherapy services, and to payment for a disability certificate invoice. Adjudicator Watt found that the claimant was not entitled to the medical benefits, attendant care assessment, psychological assessment, functional abilities evaluation, and chronic pain assessment. In determining entitlement to IRB, Adjudicator Watt relied on the opinions of the IE assessors who indicated that the claimant could perform her pre-accident duties. Adjudicator Watt concluded that there was no evidence before the Tribunal to show that the claimant’s pain was severe enough to cause functional impairment or disability, so the IRB claim was dismissed. Finally, Adjudicator Watt found that the disability certificate invoice was not reasonable and necessary.

M.D. v. Certas Home and Auto Insurance Company (18-011652)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to medical benefits proposed in two treatment and assessment plans for physiotherapy services and a chronic pain assessment. Adjudicator Grant found that the claimant’s chronic pain took him outside of the MIG, based on the chronic pain assessment report of Dr. Karmy, a chronic pain specialist. Based on the length and history of the claimant’s pain complaints and the goal of achieving pain relief, Adjudicator Grant found the chronic pain assessment and physiotherapy treatment plan to be reasonable and necessary.

D.S. v. Aviva Insurance Company of Canada (17-006952)

The claimant sought entitlement to the cost of a psychological assessment and a special award. Adjudicator McQuaid found that the assessment was reasonable and necessary, as the evidence from the ongoing adjustment of the claim supported the need for a psychological assessment. The result of assessments and examinations by four different doctors was a recommendation for psychotherapy treatment. Adjudicator McQuaid found the cost of the examination to be payable but did not grant a special award, finding the insurer’s denial of the cost of the examination was not per se frivolous and vexatious conduct.

Applicant v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought a catastrophic impairment determination, entitlement to attendant care benefits, and the cost of various assessments. The claimant suffered from chronic pain, had not worked in the 10 years since the accident, and had been diagnosed with major depressive disorder. Pain prevented the claimant’s participation in home-based activities, and she rarely left the house. Adjudicator Parish found that the claimant suffered a Class 4 marked impairment in activities of daily living (no other spheres of function were found to be Class 4). In terms of the WPI, Adjudicator Parish would have assigned 40 percent for the psychological impairment and 7 percent for physical impairment, meaning that the claimant did not have a 55 percent WPI. Adjudicator Parish awarded retroactive ACBs of $507.03 per month for assistance with meal preparation. She rejected the claims for grooming (the claimant was capable of independent hair care), bathroom cleaning (which was found to be housekeeping, not attendant care); and basic supervisory care (the Form 1 category was for emergency assistance, but the claimant did not lack the capacity to respond to an emergency; emotional care was not an appropriate attendant care service). Adjudicator Parish also awarded the cost of an OT situational assessment related to the catastrophic impairment application. She also awarded the cost of the in-home assessment to complete the Form 1. Adjudicator Parish also held that the claimant was not required to meet the strict “incurred” definition for payment of ACBs, because the accident occurred in 2009. Interest was awarded on ACBs, but only from the date the Form 1s were submitted.