Category: Medical Benefits

Prillo v. Coseco Insurance Company (20-014401/AABS-R)

Post author By tgp-admin
Post date January 18, 2023
No Comments on Prillo v. Coseco Insurance Company (20-014401/AABS-R)

The claimant filed a request for reconsideration arising from an October 14, 2022 decision, in which Adjudicator Pahuta ruled that the claimant sustained “minor injuries” and was not entitled to further treatment outside of the MIG. The claimant filed for reconsideration under Rule 18.2 (b), alleging that Adjudicator Pahuta made an error of law or fact. The claimant also argued that they suffered from chronic pain, which would remove them from the MIG. Adjudicator Pahuta noted that the claimant’s evidence was considered in full, including the chronic pain report of Dr. Robertus, which was weighed against the overall medical evidence and family doctor records showing only minor pain complaints post-accident, with most entries being for unrelated issues. The claimant made several other allegations, including that pre-accident back pain and osteoporosis would have resulted in a MIG removal, an OCF-3 was not properly considered, and that the disputed OCF-18s were not properly viewed for necessity. Adjudicator Pahuta noted that many of these arguments were not made in the original submissions, and it appeared that the claimant was attempting to re-litigate the original issues by way of making alternative arguments not originally made at the hearing. While all of the issues brought up by the claimant were considered, the same issues were now being re-argued with several new and alternative arguments being introduced. As the claimant’s evidence related to issues already fully considered and addressed in the original decision, the request for reconsideration was denied.

Jeffery v. Travelers Insurance Company of Canada (20-013979/AABS)

Post author By tgp-admin
Post date January 16, 2023
No Comments on Jeffery v. Travelers Insurance Company of Canada (20-013979/AABS)

The claimant was denied IRBs and medical benefits and sought entitlements to the benefits along with a Special Award from the Tribunal. The Tribunal held that the claimant was not entitled to IRBs or medical benefits for physiotherapy treatment. The adjudicator held that since no benefits were owed to the claimant, a s. 10 award was not applicable. The adjudicator found that the insurer did not comply with s. 36(4), which required that the insurer shall pay the benefit or give notice with medical reasons and any other reasons why it will not pay the benefit within 10 days of receiving an application and completed disability certificate. The insurer did provide notice to the claimant but did not provide medical reasons for refusing the application and relied on the fact that the claimant returned to work within 7 days of the accident. In addition, the insurer’s notice was not considered proper as it did not include the right to appeal the decision. Eventually, the insurer provided the proper notice with the appropriate medical reasons. The statutory entitlement for breaching s. 36(4) was determined to be for the period where the claimant was not given the proper notice. However, since the claimant was working during the period of statutory entitlement, the claimant’s actual entitlement was nil.

Russell v. Dumfries Mutual Insurance Company (20-004264/AABS)

Post author By tgp-admin
Post date January 12, 2023
No Comments on Russell v. Dumfries Mutual Insurance Company (20-004264/AABS)

The claimant applied to the LAT for a CAT designation, ACBs, and medication. The adjudicator found that the claimant did have a CAT impairment under Category 8 and was entitled to receive ACBs and medication. The Tribunal rejected the insurer’s argument that the pre-accident family death was the cause of the claimant’s psychological impairment. The LAT found that the claimant was not entitled to an ACB of $6,000/per month as she did not require 24/7 supervision and was able to work 3 to 4 hours a week. Although she was involved in a fire in 2018 from leaving the stove on, it did not mean she required 24/7 supervision. The claimant was found to be entitled to $1,561/per month in ACBs. The claimant was entitled to incurred ACBs, occupational therapy fees, an audiometric and speech-language pathology assessment, a social work assessment and RSW services.

Bennett v. The Co-operators (20-014453/AABS)

Post author By tgp-admin
Post date January 9, 2023
No Comments on Bennett v. The Co-operators (20-014453/AABS)

The claimant filed a LAT Application disputing several OCF-18s with interest. A special award was also claimed. The claimant argued that her worsening pre-accident fibromyalgia had resulted in numerous falls prior to the accident which required physical treatment. The main issue was payment of an OCF-18 for an attendant care assessment. The assessment had been incurred and a Form 1 recommending $1,231.30 in attendant care had been submitted. The Co-operators denied the OCF-18. The Co-operators argument involved s. 25 and s. 14. They argued that the claimant’s issues and injuries were not as a result of the accident, and while she had in fact been removed from the MIG due to her pre-exisiting conditions, the attendant care assessment would not be payable as any injury was pre-existing and not “as a result of the accident”, which would not allow access to attendant care. Furthermore, they argued that under s. 18(2), the claimant would only be removed from the cap on MR funding, and that under s. 25(2) or s. 14, this would not establish entitlement to an attendant care assessment solely based on a pre-existing condition. Adjudicator Grant disagreed, noting that the Co-operators appeared to be conflating the intentions of s. 25 and s. 14 in order to split impairments from access to funding. He further noted that a plain reading of s. 14(2) showed that once the insured had received notice of removal from the MIG, it was final and complete — there was no “partial removal”. Adjudicator Grant found the occupational therapy report submitted by the claimant to be persuasive compared to her medicals, and ruled that the OCF-18 and resulting report were reasonable and necessary in order to establish her post-accident level of functioning.

Liu v. Certas Direct Insurance Company (20-012975/AABS)

Post author By tgp-admin
Post date January 9, 2023
No Comments on Liu v. Certas Direct Insurance Company (20-012975/AABS)

The claimant disputed entitlement to NEBs, several treatment plans, and whether her injuries fell under the MIG. Adjudicator Maedel found that the claimant’s injuries fell outside of the MIG due to psychological impairments. Despite the insurer’s arguments that the claimant’s psychological report was based entirely on subjective reporting and not on contemporaneous medical records, Adjudicator Maedel relied on the claimant’s report because the insurer did not have a report to respond to the claimant’s report. The claim for NEBs was rejected because the claimant failed to produce evidence regarding her pre-accident lifestyle to establish how she suffered a complete inability to carry on a normal life. The disputed chiropractic treatment plan was rejected because the claimant failed to produce medical evidence to support that the treatment was reasonable and necessary. Finally, Adjudicator Maedel found that the psychological assessment was reasonable and necessary based on his finding that the claimant suffered from psychological impairments.

Rosoli v. Aviva General Insurance (21-009076)

Post author By tgp-admin
Post date December 1, 2022
No Comments on Rosoli v. Aviva General Insurance (21-009076)

The claimant had previously filed a LAT Application in 2018 disputing IRBs and several treatment plans. The Application proceeded to a hearing and was dismissed. The claimant did not request a reconsideration of the decision nor did she pursue an appeal. On July 9, 2021, the claimant filed a second LAT Application disputing IRBs, the MIG and several treatment plans. The insurer argued that the claimant’s application for benefits was barred due to res judicata based on her prior LAT Application regarding the same accident, which was previously dismissed at a hearing. The insurer noted that while the disputed treatment plans for the current Application had different dates on them, they were for the exact same services that were addressed in the prior Decision. The insurer argued that res judicata would prevent the claimant from bringing multiple claims for the same relief simply by changing the grounds (or date) on which the claim was made. The claimant argued that the treatments plans were in fact new issues, and that medical evidence showed she required updated treatments as she had yet to reach maximal medical recovery and required additional treatment. Adjudicator Kaur opined that res judicata had been met. A review of the medical records indicated no additional evidence that would warrant avoiding the application of res judicata, in fact, the new records indicated that the claimant had reached maximal medical recovery and that no further treatment was warranted. Adjudicator Kaur dismissed the Application.

Majerczyk v. Economical Mutual Insurance Company (20-004327)

Post author By tgp-admin
Post date November 7, 2022
No Comments on Majerczyk v. Economical Mutual Insurance Company (20-004327)

The claimant applied to the LAT seeking CAT determination under criteria 7 and 8 and entitlement to post-104 IRBs, ACBs, and various medical benefits. Vice-Chair Johal found that the claimant was not catastrophically impaired and was not entitled to ACBs, assistive devices, the in-dispute psychology treatment, or occupational therapy treatment. The claimant was entitled to IRBs, medical marijuana, lidocaine injections, physiotherapy, and a psychology assessment. With regards to CAT determination, Adjudicator Johal stated that while it was clear the claimant suffered impairments as a result of the accident and had limitations and restrictions to her daily life, simply showing that she was restricted and limited is not sufficient to meet the CAT test under the SABS.

Aviva General Insurance Company v. Catic (2022 ONSC 6000)

Post author By tgp-admin
Post date October 26, 2022
No Comments on Aviva General Insurance Company v. Catic (2022 ONSC 6000)

The insurer appealed the Tribunal’s decision that it was required to pay all amounts on a treatment plan as a result of a late section 38 denial, despite the claimant not incurring the amounts. The Court agreed with the insurer and allowed the appeal. The Court held that section 38(11)(2) operates to require payment of medical benefits following a late denial, but only if the amounts have been incurred during the period which the denial notice remains outstanding. Section 38(11)(2) does not require payment to be made in respect of non-incurred goods and services.

Nesbesnuik v. Aviva General Insurance Company (20-007540)

Post author By tgp-admin
Post date October 11, 2022
No Comments on Nesbesnuik v. Aviva General Insurance Company (20-007540)

The claimant applied to the LAT seeking entitlement to an attendant care benefit (“ACBs”) and assistive devices including a lawnmower with snow blower attachment, cell phone, and computer. Adjudicator Pahuta found that the claimant had failed to establish that ACBs had been incurred. The only evidence before the Tribunal was a written statement authored by the claimant, which was insufficient. Adjudicator Pahuta further concluded that the disputed lawnmower would fall under the housekeeping and home maintenance activities exception of s. 16(3)(l)(ii) meaning that it would not be payable as a rehabilitation benefit. Regarding the cell phone and computer, the Tribunal determined that the claimant failed to establish that either device was reasonable and necessary. Adjudicator Pahuta relied heavily on the fact that the claimant had failed to establish why these specific branded items were required and whether these expenses were truly considered accident-related. The application was dismissed.

Z .R. v. Gore Mutual Insurance Company (18-000017)

Post author By tgp-admin
Post date September 27, 2022
No Comments on Z .R. v. Gore Mutual Insurance Company (18-000017)

The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $8,280.86 per month, various medical benefits, and the cost of examinations (including $11,250.00 for CAT assessments). The claimant had been declared catastrophically impaired in a previous LAT decision. As a preliminary issue, the insurer argued that pursuant to s. 56 of the SABS the claimant was barred from proceeding with his application for ACBs for failing to dispute a denial of the benefit within the two-year limitation period. Adjudicator Hines decided that the claimant was not barred from applying for ACBs. While Adjudicator Hines agreed with the insurer that a partial approval of ACBs triggered the limitation clock and the application was made two years after the partial approval, Adjudicator Hines found that the limitation period did not apply based on the guidance outlined in the Ontario Court of Appeal decision in Tomec. With regards to whether the claimed ACBs were reasonable and necessary, Adjudicator Hines held that being catastrophically impaired does not necessarily entitle a claimant to the maximum available under the SABS and found that the claimant did not meet the burden of proving that he required 24/7 supervision. Adjudicator Hines analyzed the various Form 1s and found that the claimant was entitled to reduced amounts for ACBs during two specific time periods. With regards to medical benefits, Adjudicator Hines found that the claimant was entitled to the disputed physiotherapy and psychological treatment as well as a functional abilities assessment. The proposed CAT assessments were partially reasonable and necessary in the amount of $4,200.00. Adjudicator Hines noted that not all the assessments were relied on at the previous hearing, the amount proposed for some assessments was above the $2,000 cap, and the claimant failed to articulate how some of the assessments were reasonable and necessary. The claimant was not entitled to the amount claimed for mileage related to occupational therapy treatment. Adjudicator Hines decided not to address the claimant’s submissions related to housekeeping benefits because entitlement to housekeeping benefits was not listed as an issue in dispute in previous LAT orders scheduling the hearing.

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