Category: Medical Benefits

U.P. v. Aviva General Insurance Company (19-007557)

The claimant sought entitlement to two treatment plans, a chronic pain assessment and physiotherapy treatment. Adjudicator Kaur found that the claimant was entitled to both benefits. The evidence supported that the claimant continued to suffer from ongoing pain and impairment. With respect to the chronic pain assessment, the Adjudicator preferred the claimant’s evidence and held that the assessment was reasonable and necessary, as there was sufficient evidence of continued pain to warrant further investigation. With respect to the physiotherapy treatment, the Adjudicator found that the claimant had not yet reached maximal medical recovery and would benefit from the recommended facility-based treatment. As such, the treatment plan was deemed reasonable and necessary.

G.C. v. Aviva Insurance Canada (17-003450)

The insurer sought reconsideration of the Tribunal’s decision that the claimant was entitled to a chronic pain assessment, arguing that the Tribunal failed to consider if the proposed assessor was properly qualified and failed to apply significant weight to the respondent’s paper review IE report. Adjudicator Grieves dismissed the request for reconsideration. She held that the Tribunal did not make a significant error of law, and that it was not her place on a reconsideration request to question the weight that an adjudicator assigns to the evidence. Adjudicators are entitled to prefer some pieces of evidence over others.

P.D. v. Western Assurance Company (17-005066)

The insurer sought reconsideration of the Tribunal’s decision that the limitation period did not bar the claims for attendant care benefits and medical benefits. Associate Chair Batty granted the reconsideration, reasoning that the denials were “clear and unequivocal.” The denials were based on the claimant having exhausted her non-catastrophic medical benefits limits.

S.G. v. Aviva General Insurance (18-007668)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to two treatment plans, one for psychological treatment and another for an orthopaedic assessment. Adjudicator Braun concluded that the claimant’s physical injuries were minor, but that he had sustained a psychological injury which exempted him from the MIG limit. The Adjudicator noted that both the claimant’s and the respondent’s assessors had concluded that the claimant sustained psychological impairments as a direct result of the accident. The fact that the specific diagnoses of the assessors differed did not matter. Despite the claimant’s psychological impairments, Adjudicator Braun found that the psychological treatment plan was not reasonable and necessary. He felt that the claimant’s post-accident activity level suggested that he had been able to achieve the goals of the treatment plan on his own, without psychological intervention. The Adjudicator also found the orthopaedic assessment was not reasonable and necessary, as there was no evidence to suggest that the claimant experienced any ongoing musculoskeletal pain or physical complications arising from the accident.

M.R. v. Aviva Insurance Canada (17-008917)

The claimant sought entitlement to two treatment plans, a chronic pain assessment and a neurological assessment. Adjudicator Makhamra found that the claimant was entitled to both benefits. In terms of the chronic pain assessment, the claimant’s family doctor records contained persistent complaints of pain resulting from the accident-related injuries. The Adjudicator assigned little weight to the respondent’s IE report, as the expert was not a chronic pain specialist and did not examine the claimant for the purposes of assessing chronic pain. In terms of the neurological assessment, the claimant made numerous complaints of headaches both pre and post-accident to the her family doctor and occupational therapist. The Adjudicator again preferred the claimant’s evidence, as the respondent’s IE report did not directly address the claimant’s concern with continued headaches.

C.D. v. Aviva General Insurance (17-005825)

The Tribunal had awarded the claimant all claimed medical benefits in her application, and a 25 percent special award. The insurer sought reconsideration, arguing that it had paid amounts to the clinics for the medical benefits, so that any payments to the claimant was double recovery. The insurer also argued that the special award was granted on insufficient evidence. Adjudicator Ferguson dismissed the reconsideration request. He held that the Tribunal’s decision did not require the insurer to pay more than the full amount of the treatment plans in dispute. Regarding the special award, the adjudicator rejected the insurer’s argument that there was insufficient evidence to support same, and that the Tribunal had carefully considered the evidence before it.

D.M. v. Wawanesa Mutual Insurance Company (18-003314)

The claimant was catastrophically impaired as a result of a motorcycle accident. He sought entitlement to $6,000 per month in ACBs and entitlement to further physiotherapy. Adjudicator Hines awarded $3,047.29 per month in ACBs. The primary dispute was whether the claimant required 24/7 care. The adjudicator concluded that the claimant did not require 24/7 care. The claimant had the capability to function with a degree of independence. He was attending college and passing courses. While the claimant may have had a crisis in 2017, he made positive improvements and did not require 24-7 supervision for his safety. The claimant was awarded ACBs for dressing, grooming, meal preparation, hygiene, exercise, and some supervisory care for four hours per day. The attendant care services were incurred, as a professional service provided was providing the services. The claimant was also awarded part of one of the two treatment plans for physiotherapy.

J.M. v. Aviva General Insurance (17-007215)

The insurer sought reconsideration of the Tribunal’s decision that catastrophic impairment assessments are payable outside of the medical benefits limits. Vice Chair Flude held that the Tribunal’s decision did not contain a significant error of law, and was correct. He concluded that earlier FSCO decisions addressing the same issue were correct, and that catastrophic impairment assessment costs are not to be deducted from the medical benefits limits.

M.K. v. Aviva Insurance Canada (18-001128)

The claimant sought entitlement to the balance of a partially approved psychological assessment. Adjudicator Punyarthi held that the claimant was not entitled to the remaining balance as there was no evidence substantiating the claimant’s entitlement. The adjudicator specifically noted that the treatment plan at issue was vague and unparticularized, and there was no justification as to why the time as claimed was necessary. The insurer relied on the opinion of its psychological assessor as to the number of hours that should be spent on the tasks of the assessment, and applied the hourly rate for a psychological that was provided in the Professional Services Guideline. The adjudicator refused to rely on an email from the claimant’s assessor containing an estimated breakdown of time spent as it was not disclosed to the insurer prior to submissions at the hearing.

W.H. v. Allstate Insurance (18-004037)

The claimant sought entitlement to three treatment plans for further physical therapy, assistive devices, and a chronic pain treatment program. Adjudicator Boyce awarded some of the assistive devices and denied the remainder of the claim. He held further physical therapy was not reasonable and necessary for the claimant’s impairment, and that the proposed chronic pain program was not sufficiently specific in scope or cost to be reasonable. Some of the assistive devices for blocking out noise and sunlight were awarded.