Category: Medical Benefits

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)

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)

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)

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)

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.

Day v. BelairDirect Insurance Company (20-005603)

The claimant sought catastrophic impairment designation under Criterion 8 as a result of her involvement in an April 2016 accident. Both parties agreed that the claimant had a class 4 marked impairment due to a mental or behavioural disorder, but the insurer denied that her mental or behavioural disorder was caused by the accident and submitted that the accident did not cause any change to her pre-accident psychological impairments. Adjudicator Neilson found that the claimant’s psychological condition was worse than it was prior to the accident, and that the accident had exacerbated her condition. The pre-accident medical records from the claimant’s treating psychiatrist indicated that her major depressive disorder was in remission as of January 2016. She was getting out the house, walking, going to mall, or going for drives as of March 2016. Evidence from the claimant and family members confirmed that prior to the accident, she was functioning adequately (aside from work), but that she was no longer functioning adequately and drank alcohol excessively every day. As such, Adjudicator Neilson found that the claimant was catastrophically impaired as a result of the accident. Adjudicator Neilson also found that the claimant was entitled to attendant care benefits in the amount of $931.57 per month (as recommended by the claimant’s OT, with exception of 16 hours per day of supervision). As the claimant admitted that she had not incurred any attendant care expenses, no attendant care was payable up to the date of the hearing. Adjudicator Neilson further found that psychological counseling, chiropractic treatment, and yoga instruction, as well as the cost of an attendant care assessment were reasonable and necessary as a result of the accident, and therefore payable.

Cruz v. Belair Insurance Company (20-014208)

The claimant was involved in a serious motor vehicle accident in September 2017, in which she sustained multiple fractures. She applied to the LAT seeking CAT determination under Criteria 7 and entitlement to post-104 IRBs, medical benefits, and a special award. Vice-Chair Lester decided to exclude two insurer reports that were served after the deadline for productions. The claimant was permitted to call the claims adjuster despite late service of particulars for the claim for a special award. The claimant’s assessors determined the claimant had a WPI rating of 66%. The insurer’s assessors determined the claimant had a WPI rating of 40%. Vice-Chair Lester determined that the WPI ratings of the claimant’s assessors were incorrect for a variety of reasons, including advancing a rating for a future risk. Vice-Chair Lester found that the claimant had a combined WPI rating of 47% and was not catastrophically impaired. The claimant’s pre-accident employment jobs had all been part-time short-term positions in retail, childcare, and a travel agency. Vice-Chair Lester found that the claimant was unable to sit long enough for any sedentary part-time position and was entitled to post-104 IRBs. The claimant was entitled to OT services and physiotherapy. She was not entitled to a SPECT assessment or a special award.

Hawes v. Aviva General Insurance Company (20-009483)

The insurer challenged the hourly rates claimed in one of the claimant’s treatment plans. The claimant submitted a psychological treatment plan, which sought entitlement to psychological treatment at an hourly rate of $149.61 per hour. The psychological treatment plan was to be provided by a registered psychotherapist. The insurer partially approved the treatment plan at a rate of $100.00 per hour. Adjudicator Norris held that claimant was not entitled to the higher hourly rate of $149.61 per hour. The Professional Services Guideline is silent as to the maximum hourly rate of a psychotherapist. Relying on the LAT’s decision in Baranov v. Aviva General Insurance, Adjudicator Norris held that the claimant did not met her onus to demonstrate that she is entitled to an enhanced hourly rate for psychotherapy services. Similar to this case, the LAT awarded a rate of $99.75 in Baranov for counselling, mental health and addictions treatment by a psychotherapist. Adjudicator Norris found that the claimant failed to provide relevant information to justify paying a higher rate, such as reference to the provision of cognitive behavioural therapy or other specialized psychotherapy treatment.

Crecoukias v. Toronto Transit Commission (19-014590)

The claimant witnessed an individual being struck and killed by a bus. He applied to the LAT for a catastrophic impairment designation, and disputing entitlement to ACBs and various medical benefits. The insurer argued that the claimant’s severe psychological impairments were the result of pre-existing schizophrenia that was already worsening prior to the accident. Adjudicator Neilson agreed with the insurer. Although she accepted that the claimant suffered a psychological injury from witnessing the incident, she found that the schizophrenia and severe psychological impairments demonstrated by the claimant were not a result of the accident, and that it would have developed regardless. The claimant showed a prodromal stage of schizophrenia from a young age, and he was at high risk from developing schizophrenia due to drug use and family history of psychosis. The evidence of the claimant’s mother was rejected as being non-credible as it was contradicted by the medical records of the claimant’s treating psychiatric team. Adjudicator Neilson also noted that she rejected the opinion of the claimant’s catastrophic impairment experts, as it was a chiropractor that provided the AMA ratings following assessment and diagnosis by a psychiatrist. Even using the opinion of the claimant’s psychiatrist, Adjudicator Neilson found that the claimant failed to prove that he suffered a Class 4 marked impairment or Class 5 extreme impairment in any of the four spheres of function as a result of the accident. Adjudicator Neilson did not need to address the claims for ACBs or medical benefits as the claimant had exhausted his medical benefits limits. However, in the event she was overturned with regard to the catastrophic impairment decision, she would have held that the unpaid ACBs related to transportation for the service provider, which was not payable under the SABS. She also found the claimed transportation to be inconsistent with the claimant’s ability to drive himself. Adjudicator Neilson also would have rejected the denied rehabilitation support worker services, as they were duplicative of services the claimant was already receiving at CAMH. Finally, Adjudicator Neilson would have rejected the claims related to the hotel stays, because they were claimed as medical benefits and incurred without a treatment plan. There were also procedural matters addressed at the outset of the hearing. Adjudicator Neilson allowed the insurer’s IE psychiatrist to observe the testimony of the claimant’s psychiatric expert; she allowed a defence medical report completed in the tort matter to be admitted as the insurer had access to the report and it had been provided to other expert witnesses; she allowed the insurer’s IE psychiatrist to testify to matters not contained in the report, while giving the claimant’s expert an opportunity to respond by way of reply evidence; and she restricted the claimant’s catastrophic impairment chiropractor to limiting his testimony to matters pertaining to the spine and musculoskeletal system only.

Galang v. Coseco Insurance Company (20-008382)

The claimant was injured in an accident on April 30, 2018. She sought entitlement to various treatment plans, including a chiropractic treatment plan submitted on May 15, 2018, and a physiotherapy treatment plan submitted on July 19, 2018. The insurer denied the claimant’s chiropractor treatment plan and partially approved the physiotherapy plan. The claimant was removed from the MIG on August 24, 2018. Adjudicator Deol held that the claimant was not entitled to the denied chiropractic treatment plan as it was properly denied under s. 38(5) of the Schedule, as the insurer was entitled to refuse a non-MIG treatment plan while the claimant was still within the MIG. In rejecting the claimant’s treatment plan for chiropractor treatment, the insurer clearly advised the claimant that their OCF-18 was being denied pursuant to ss. 38(5) and 38(6). However, Adjudicator Deol held that the insurer’s denial of the claimant’s physiotherapy treatment plan was not valid pursuant to s. 38(5). The insurer did not “refuse to accept” the disputed OCF-18, as it partially approved the OCF-18 and the denial letter did not reference ss. 38(5) and 38(6).

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