Category: Medical Benefits

Tanner v. Certas Direct (21-000564)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, and payment of various medical benefits including partially approved CAT assessments. Adjudicator Reilly denied all claims and dismissed the application. With respect to the catastrophic impairment, Adjudicator Reilly found a maximum combined WPI of 32 percent. She found the claimant’s assessors attributed excessive impairment percentages. She found no evidence of right shoulder impairment and found lumbar spine impairment rated too high. She found the claimant’s left wrist and shoulder impairments ought to have been combined before arriving at the total WPI, rather than rating each separately. She found the rating of 18 percent WPI for grip strength to be questionable as OT and FAE assessments found normal grip strength. In terms of neurological ratings, Adjudicator Reilly found no evidence to support a rating for sexual dysfunction or hearing, and the rating for disturbances of consciousness and awareness ought to have been deferred to a psychiatrist. She found a total of 32 percent WPI for orthopaedic and neurological impairment, which did not meet Criterion 6. In terms of mental or behavioural impairment, Adjudicator Reilly did not accept the claimant’s expert’s rating of 20 percent WPI, as the facts described by the assessor were not supported by the evidence (i.e. ability to travel, ability to drive, ability to work part-time). Adjudicator Reilly preferred a maximum WPI of 10 percent for mental and behavioural impairment based on the IE assessor’s opinion. The combined physical and mental impairment did not exceed 55 percent, and the catastrophic impairment designation was dismissed. Adjudicator Reilly concluded that the claimant did not meet the post-104 week IRB test. The claimant had returned to work in a part-time fashion on multiple occasions after the accident. Surveillance showed him with greater physical abilities than reported to his assessors. The claimant’s job was terminated in 2021 because he did not want to return to the office full-time, and the management dismissed him. The claim for further CAT assessments was dismissed, as the claimant did not advance evidence to indicate why the denied amounts were reasonable and necessary. The claim for assistive devices was dismissed because they were not submitted on OCF-18s, and the claimant had exhausted his medical benefits limits.

Barrie v. Intact Insurance Company (20-004866)

The claimant sought full approval of an OCF-18 for psychological treatment in the amount of $3,491.48. The insurer had only approved $2,543.77 of the requested amount. The disputed treatment plan included 12, 1.5 hour sessions with psychologist Dr. Aghamohseni. The insurer had advised the claimant that it required additional information to justify approval of 1.5 hour sessions. The insurer had also reduced the approved amount when it became aware that, contrary to the information provided on the OCF-18, a portion of the treatment would be provided by Ms. Gharibi, a qualifying registered psychotherapist. Ms. Gharibi testified at the hearing that 45 minute sessions were sufficient and that the claimant was generally unable to sit for a longer period of time. Consequently, Adjudicator Lake agreed with the insurer and held that the claimant was not entitled to 1.5 hour sessions. She also found that the insurer’s reduced rate was reasonable, given Ms. Gharibi’s limited credentials and experience in providing psychological treatment.

Rao v. Wawanesa Mutual Insurance Co. (20-001654)

The claimant applied to the LAT seeking CAT determination under Criteria 8 and entitlement to post-104 IRBs and various medical/rehabilitation benefits. Causation was an issue at the hearing. The subject motor vehicle accident occurred on April 4, 2016. At the time of the subject accident, the claimant was still recovering from an incident in August 2015, which left her with a concussion and unable to work for 8 months. The subject accident occurred while the claimant was on her way to work for the first time since August 2015. The “but for” test was applied to the issue of causation. Vice-Chair Shapiro found that while the subject rear-end collision was light, it did affect the claimant, stating “while there is a dispute of what the actual physical impact the accident had on her brain and cognitive function, I accept that it was an emotionally traumatic event.” Vice-Chair Shapiro preferred the insurer’s CAT opinions, finding that the claimant’s CAT report lacked meaningful validity testing and was generally inconsistent with the records of treating practitioners and evidence of functional abilities. Vice-Chair Shapiro found that the claimant likely sustained a mild second concussion in the subject accident, which resolved on its own. The testimony of the claimant’s treating neurologist was given less weight as she was unaware of the subject accident until she was summonsed to be a witness at a hearing, and therefore her testimony about the accident causing the claimant’s current complaints was inconsistent with her medical notes. The claimant was found not to be CAT and was not entitled to post-104 IRBs. She was entitled to driver’s therapy, plus interest if incurred, but not to the other medical benefits in dispute.

Rattani v. Unifund Assurance Company (20-001512)

The claimant applied to the LAT seeking entitlement to various medical benefits, including further physical treatment and assessments. Section 38(8) of the SABs provide that an insurer shall respond to a treatment plan within 10 business of receipt and must provide the claimant correspondence outlining all medical and all other reasons for any denial. As guidance, the LAT explained that medical and other reasons should at the very least include specific details about a claimant conditions which form the basis for the insurer’s decision. In this case the claimant submitted a treatment plan for an assessment of function to identify barrier to recovery. The insurer denied two assessments citing the lack of medical evidence and the report of its IE assessor who agreed with the findings of an emergency physician that the claimant sustained a left sprain and lumbosacral strain in the accident. Adjudicator Kaur found the insurer’s denial to be insufficient. The insurer failed to provide adequate medical reasons explaining why the assessments were denied. Stating that there was “insufficient medical documentation” was not a medical reason, nor was simply repeating one finding of the IE assessor. The insurer’s denial did not provide an explanation that would allow the claimant to understand why the proposed assessments were not reasonably and necessary in light of the two cited reasons. One treatment plan for physical therapy was also awarded as being reasonable and necessary. The remaining proposed medical treatment was denied by the Tribunal as not reasonable and necessary.

G.H.M. v. Wawanesa Mutual Insurance Company (20-009986)

The claimant was a six year old minor, who sustained a significant brain injury as well as other impairments as a result of an accident on May 28, 2015. She was deemed catastrophically impaired. The claimant disputed entitlement to rehab benefits for tuition and other expenses for the claimant’s brother to attend school as recommended in three different treatment plans. As a result of the claimant’s injuries, the public school she attended pre-accident was unable to meet her needs for an EA that was recommended. The claimant’s parents found a private school that could meet her special needs, which required funding. The funding for the claimant’s attendance at the private school was approved. She had a twin brother with whom she had a special bond and with whom she had always attended the same school. It was determined that the brother’s attendance at the private school proved to demonstrate significant improvements for the claimant. Three treatment plans were submitted for funding of the twin brother’s tuition at the school. The claimant argued the treatment plans for private tuition for the brother was reasonable and necessary as it achieved the rehabilitative goal of reducing the effects of the claimant’s disability. The insurer relied on the opinion of the IE expert, who determined the treatment plans were not reasonable and necessary as there were ethical concerns about using the brother as a rehabilitative tool and that it could have an adverse effect on the brother both academically and emotionally. The IE expert also opined that the brother may develop compassion fatigue and come to resent the claimant. In addition, the claimant might also become overly dependent on her brother for her future academic success. Adjudicator Hines found that the treatment plans were reasonable and necessary, but were not payable because they were incurred prior to submission of a treatment plan. Adjudicator Hines found the case was unique as the claimant responded negatively to conventional treatment that caused harm and disruption to the claimant’s family. The evidence supported that the brother’s attendance at the same school resulted in significant improvements to the claimant’s communication skills and had a positive impact in her social skills with her peers. The issues raised by the IE expert were speculations and not evidence based. In addition, the insurer did not request production of the claimant brother’s medical and academic records. Adjudicator Hines also took into consideration the testimony of the mother of the claimant, who was found to be a credible witness and gave testimony that both the claimant and her brother thrived at the school. However, the insurer raised an argument that the plans were not payable since they were incurred prior to being submitted. Adjudicator Hines agreed that the insurer was not liable to pay the treatment plans because of the claimant’s failure to comply with section 38(2) of the SABS.

Wang v. Co-Operators General Insurance Company (20-009692)

The claimant applied to the LAT seeking entitlement to benefits, including a CAT assessment, after being involved in a motor vehicle accident. Vice-Chair Shapiro found that the claimant failed to establish on the evidence that a CAT assessment would be both reasonable and necessary in the circumstances, highlighting that the threshold requires the claimant to demonstrate that her impairments warrant investigation that she possibility has a CAT impairment. Specifically, as the claimant was alleging mental and behaviour impairments, she would need to a show Class 4 marked impairments. The claimant relied largely on her own self-reports which the Tribunal found to be contradictory and inconsistent, including in relation to her injuries, her medical functionality, her symptoms, and her work history. Two further treatment plans for an attendant care assessment and chiropractic services were also dismissed as not reasonable and necessary.

E.J. v. Economical Insurance (20-008287)

The minor claimant was the daughter and sibling of family members involved in a serious accident. The claimant was not herself in the vehicle at the time. The claimant applied for accident benefits, but the insurer denied the application arguing that the claimant was not in an accident. Vice Chair Lake agreed that the claimant was not involved in an accident, but that she was an insured person. The claimant was a dependent of her father. Her father suffered physical injuries as a result of the accident. The claimant suffered psychological injuries as a result of her father’s injuries. The claimant was therefore entitled to accident benefits as an insured person. A treatment plan for psychological treatment was awarded. An claim for lost educational expense was not awarded because it was not incurred prior to the accident.

Yang v Dominion of Canada General Insurance Company (20-008471)

The claimant sought entitlement to four OCF-18s for physical treatment. The claimant had been removed from the MIG for psychological reasons, but the insurer maintained its denials of the disputed physical treatment plans. The claimant argued that the treatment plan denial letters were improper and failed to mention the medical and other reasons for the denial, contrary to the SABS. The reasons provided for three of the four denial letters were because there was no more funding left under the MIG limits. Vice Chair Lester held that once that reason was no longer true, the insurer has an obligation to re-evaluate the reasonableness and necessity of the OCF-18s previously denied because the claimant now has access to greater benefit limits, and provide updated medical and other reasons for the denial of the OCF-18s. As such, the claimant was found to be entitled to three of the four physical treatment plans.

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.

Powell v. Aviva Insurance Company of Canada (19-012928)

The claimant sought a catastrophic impairment designation, entitlement to ACBs, and medical benefits for occupational therapy and vision therapy. Adjudicator Grieves found that the claimant suffered a Class 4 Marked Impairment in adaptation, and therefore met the catastrophic impairment definition. The accident was a relatively minor rear-end collision, but resulted in the claimant suffering from a mild TBI, and psychological injuries. She continued to work after the accident, but only on a part-time basis. She lacked motivation to engage in daily routines, showered only once per week, had trouble preparing meals, and the claimant’s home was scattered with garbage and cat feces. The claimant experienced multiple periods where she needed to live with her mother because she could not manage independent living. Adjudicator Grieves found the claimant was entitled to ACBs of $644.63 per month for assistance with meal preparation and bathroom and bedroom hygiene. She was critical of the insurer’s assessor, who considered only the claimant’s physical abilities and failed to consider the claimant’s psychological barriers. Medical benefits for aquatherapy was dismissed as it was duplicative, and the claimant already had access to a pool and personal trainer. A treatment plan for a professional organizer and a treatment plan for vision therapy was awarded.