Category: Medical Benefits

K.W. v. Aviva Insurance Company (18-006959)

The claimant applied to the LAT seeking entitlement to IRBs, the benefits proposed in two treatment plans, and a special award. The insurer conceded that the claimant qualified for IRBs during the disputed period but contested the quantum of IRBs being claimed. Adjudicator Watt held that post-accident “passive” income earned by a claimant was to be included as a deduction in any calculation under s. 4 and 7 of the SABS, and found that the self-employed claimant was entitled to IRBs in the amount calculated by the insurer’s expert accountant. The claimant was not entitled to a psychological assessment, psychological treatment, or a special award. The psychological assessment was not reasonable and necessary as the claimant had already undergone two assessments. Adjudicator Watt found that the services proposed in the OCF-18 for psychological treatment were not reasonable and necessary, including costs for consultation, communication with the treatment providers, periodic administration, scoring and interpretation of psychological tests, review of external file materials and preparation of status reports and overseeing supervision of another psychologist.

J.A. v. Aviva Insurance Company (18-011393)

The claimant applied to the LAT seeking entitlement to the benefits proposed in three treatment plans. Adjudicator Norris found that the proposed chiropractic treatment plan was not reasonable and necessary, but as the insurer’s initial denial letter was non-compliant with s. 38 “medical and other all reasons” requirements, the claimant was entitled to payment for the goods and services incurred during the period from the 11th business day following receipt of the treatment plan to the date a compliant notice was provided. The claimant was entitled to the balance of a psychological assessment because the partial approval letter was not clear and unequivocal. The claimant was not entitled to the balance of a psychological treatment plan because the proposed services (communication with other treatment providers, treatment planning, and preparation of a progress report) were found to be not reasonable and necessary.

N.S v. Wawanesa Insurance Company (19-000300)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to medical benefits proposed in two treatment plans. Adjudicator Boyce found that the claimant’s psychological and/or neurological impairment took her outside of the MIG, based on the medical opinions of her assessors. The claimant was subsequently found entitled to payment for a psychological assessment. However, Adjudicator Boyce found a chiropractic treatment plan not payable as it was not reasonable and necessary. The claimant failed to demonstrate that her pain was caused by the accident or that she required further facility-based intervention to achieve relief.

K.L. v. CAA Insurance (19-000029)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to medical benefits and costs of examinations proposed in five treatment plans. Adjudicator Sharma found that the claimant’s injuries were predominantly minor and fell within the MIG. Contrary to the claimant’s submissions arguing otherwise, Adjudicator Sharma found no compelling evidence of a pre-existing medical condition that would prevent maximal recovery and remove the claimant from the MIG. The disputed treatment plans were found not payable.

M.Z. v. Aviva Insurance Canada (18-001324)

The claimant sought entitlement to the balance of a chiropractic treatment plan, four other treatment plans, and an award. The claimant argued the balance of the chiropractic treatment plan should be approved because the insurer failed to provide a response within 10 business days pursuant to section 38(3) of the Schedule. The insurer argued that the limitation period applied to one of the treatment plans. Adjudicator Grant found that the insured mailed the denial letter to the claimant, and it was deemed to have been received by the claimant on the fifth business day after it was mailed under section 64(18). Based on that date, the claimant’s LAT application was filed after the two-year limitation period, making the chiropractic treatment plan not payable. The other treatment plans were also found not payable based on a lack of objective supporting evidence.

I.L.G. v. Aviva General Insurance Company (18-009010)

The claimant sought removal from the MIG and entitlement to a chronic pain assessment, a neurological assessment, an orthopedic assessment, assistive devices, and interest on the payment of overdue benefits. Adjudicator Grant found that the claimant’s injuries were predominantly “minor injuries” and that injuries she suffered later, as a result of a July 21, 2016 accident, were more significant. As such, Adjudicator Grant did not have to address the disputed assessments, which were denied due to the insurer’s position that the MIG applied to the claimant’s injuries. With respect to OCF-18 for assistive devices, the insurer approved it subject to the claimant submitting the treatment plan to her collateral benefits provider; the insurer agreed to pay the remaining balance. Since the claimant did not provide any evidence that the OCF-18 was submitted to her collateral benefits provider, Adjudicator Grant found that the insurer was not required to pay any amount of the treatment plan until the claimant provided proof of submission to her collateral benefits provider.

R.S. v. Aviva Insurance Canada (18-001324)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to medical benefits proposed in seven chiropractic, attendant care, and psychological treatment plans and assessments. The claimant also argued the MIG limit did not apply to the psychological-based treatment plans, citing the insurer’s failure to state in its denial letters that the MIG applies. Adjudicator Grant found that the chiropractic treatment plans and attendant care assessments fell within the MIG due to a lack of objective medical evidence suggesting otherwise. He further found that the insurer’s denial letters in response to the psychological-based treatment plans failed to comply with section 38(9) of the Schedule, as it did not provide the required notice to the claimant of the insurer’s position that the MIG applied to his impairments. The insurer was subsequently prohibited from arguing that the injuries related to those treatment plans were predominantly minor injuries to which the MIG applied and was required to pay those medical benefits.

G.N. v. The Guarantee Company of North America (18-007546)

The claimant sought entitlement to the cost of a capacity assessment and the cost of a court application for guardianship. Adjudicator Ferguson dismissed both claims. He held that the capacity assessment was not payable because it was not incurred within five days of the accident, so the exception at 38(2) did not apply. He also held that a court application for guardianship was not a benefit covered by the SABS, and that the Tribunal had an form for representation of persons lacking capacity.

J.H. v. CUMIS General Insurance Company (18-012367)

The claimant sought a determination that she suffered a catastrophic impairment, entitlement to IRBs, and entitlement to various medical benefits. Adjudicator Gosio held that the claimant did not meet the criteria to suffer a catastrophic impairment. He agreed that the claimant suffered a psychological impairment, but that the maximum impairment was a Class 3 moderate impairment in each of the spheres of function. The claimant continued to care for her young child, was independent with personal care, and was able to exercise independently. She visited with family and friends on occasion. The claimant appeared well-groomed and there was no evidence of self-neglect. Adjudicator Gosio did award IRBs on an ongoing basis, holding that the claimant’s anxiety prevented her from returning to work. The claims for physical therapy were rejected, as the claimant was capable of independently exercising; the HST on an approved treatment plan was awarded.

S.R. v. Certas Home and Auto Insurance Company (18-006442)

The claimant was deemed catastrophically impaired. He sought entitlement to ongoing HK expenses, and entitlement to the rent differential for a larger rental home. Adjudicator Paluch rejected both claims. While he held that the claimant suffered a substantial inability to perform housekeeping tasks, he also found that the claimant had not incurred expenses related to housekeeping and concluded that the insurer had not unreasonably withheld HK expenses. In terms of the claim for rent differential, the adjudicator noted that the claimant failed to put sufficient evidence before the Tribunal regarding his current rent, the current rental market rates, the amount the claimant received for rent from his brother, or why a larger unit was needed (as opposed to removing some of the clutter in the current unit).