Category: Medical Benefits

S.T. v. Certas Direct Insurance Company (17-005871)

The claimant applied to the LAT seeking a finding that his injuries fell outside the MIG, and seeking entitlement to physiotherapy and a chronic pain assessment. Adjudicator Kepman held that the claimant’s diagnosis of chronic pain fell outside of the MIG. The claimant suffered from pre-existing shoulder pain 2 months pre-accident, which was exacerbated by the accident. While the insurer’s IE assessor found that the claimant’s injuries were within the MIG, the adjudicator focused on the assessor’s findings that the claimant continued to experience pain 2.5 years post-accident and was participating in various treatment to address the complaints, including steroid injections and physiotherapy. The adjudicator found the proposed chronic pain assessment reasonable and necessary but did not find the proposed physiotherapy reasonable and necessary as the claimant had received similar treatment in the past which was noted as not being helpful.

R.A. v. Allstate Canada (17-005616)

The claimant sought entitlement to IRBs and various medical benefits for chiropractic services. Adjudicator Watt held that the claimant was not entitled to IRBs or the medical benefits in dispute. The claimant suffered soft-tissue injuries and claimed he could not complete computer work for more than 30 minutes and his headaches caused dizziness and poor concentration. The claimant continued to play hockey, baseball and floor hockey 2-3 times per week. The claimant ran an eBay and Amazon store buying and selling collectibles. He was unable to provide any supporting documentation to verify his income. IE assessors found that the claimant did not meet the IRBs test. Another IE assessor found that chiropractic treatment was not reasonable and necessary as the claimant had achieved maximum medical benefit from chiropractic services. The adjudicator focused on the fact that the claimant could engage in physical sports without complaints of headaches and neck pain.

D.M. v. RBC Insurance (17-006781)

The claimant sought entitlement to an ADL assessment and orthopedic assessment. The insurer argued that the claimant was statute-barred from disputing the denials. Adjudicator Norris held that the claimant was not entitled to the ADL assessment, but was entitled to the cost of the orthopedic assessment plus interest. The claimant claimed to have not received denial letters from the insurer. The adjudicator held that the claimant was barred from adjudicating the ADL assessment as the claimant received an unequivocal denial on June 4, 2015, over 2 years before the LAT Application. However, the adjudicator held that there was no clear and unequivocal denial of the orthopedic assessment. The first “denial” letter noted that the insurer would not fund the treatment plan “at this time” and a second letter only referenced the assessment plans by HCAI number, which the adjudicator found made it too difficult for the claimant to determine which plans were in dispute. The claimant incurred the cost of the disputed orthopedic plan after the 10th business day after the plan was proposed and prior to receipt of a clear and unequivocal denial. The insurer argued that the claimant was barred per section 55 from adjudicating entitlement to the orthopedic assessment for failure to attend a section 44 IE. The adjudicator held that the claimant was not barred as the insurer requested an assessment more often than reasonably necessary. The claimant attended a section 44 orthopedic assessment, but the insurer had failed to have the assessor assess the claimant’s entitlement to the disputed orthopedic assessment. Adjudicator Norris held that it was unreasonable to subject the claimant to another in-person assessment so soon after the first assessment simply because the insurer failed to address the issue during the previous IE.

Applicant v. Aviva General Insurance (17-008498)

The claimant sought entitlement to IRBs from the date of denial until her return to work and various medical benefits, including a chronic pain assessment, and a two-part physiatrist assessment. Adjudicator Lake held that the claimant did not meet the IRBs test and both the chronic pain assessment and two-part physiatry assessment were not reasonable and necessary. The only evidence on the claimant’s essential tasks of pre-accident employment were from self-reports to medical professionals. There were no entries in medical records regarding her ability to work for the period in dispute. The insurer relied on three IE reports (psychology, neurology, orthopedic surgeon) which all concluded that the claimant did not suffer an inability to perform the essential tasks of her pre-accident employment. The adjudicator found the IE reports to be largely convincing accounts of the claimant’s post-accident condition. With regard to the disputed chronic pain assessment, the adjudicator preferred the two IE reports from the insurer which both found that the assessment was not reasonable and necessary. The adjudicator noted that the referring chiropractor did not make a finding as to whether the claimant’s alleged chronic pain occurred as a result of the accident, failed to comment on pre-accident migraines, and omitted details of pain levels and complaints, whereas one of the IE assessors was authorized to practice on chronic pain management. Additionally, there was no medical documentation on file beyond the assessment report from the referring chiropractor. With regard to the two-part physiatry assessment, there was conflicting evidence regarding the claimant’s impairments as she was able to return to work in a physical role, yet unable to complete ADLs involving her work tasks. The adjudicator also noted that the claimant did not pursue other recommended investigations, such as an MRI, to determine her physical status, which was one of the goals of the treatment plans.

Applicant v. Aviva Insurance Company (17-007820)

The claimant sought entitlement to non-earner benefits and the benefits proposed in three treatment plans. Adjudicator Mazerolle found that the claimant was not entitled to NEBs and two treatment plans for physiotherapy. The claimant was found entitled to the cost of a neurobiofeedback assessment.

T.B. v. Aviva Insurance Canada (17-006162)

The claimant sought entitlement to various medical benefits for physical treatment and assistive devices. Adjudicator Johal concluded that the claims were not reasonable and necessary and dismissed the claims. She held that self-reports of pain were not sufficient to prove treatment was reasonable and necessary, and wrote that some form of medical documentation corroborating the reporting was necessary. Further, the claimant demonstrated functional mobility to complete all personal care and housekeeping tasks. She was therefore not entitled to the proposed assistive devices.

T.B. v Aviva Insurance Canada (17-006162)

The claimant sought various medical benefits, the cost of a chronic pain assessment, and a special award. Adjudicator Johal held that the claimant was not entitled to any of the benefits in dispute. The claimant relied solely on her self-reporting of her injuries to IE assessors to argue that the treatment plans in dispute were reasonable and necessary. The adjudicator held that self-reporting of pain is not alone sufficient to show that the treatment is reasonable and necessary or that she suffered from chronic pain or chronic pain syndrome. Some form of medical documentation corroborating the claimant’s self-reporting is required. The adjudicator preferred the assessors’ opinions that the claimant had myofascial pain in relation to her usual ADLs and that the treatment plans were not reasonable and necessary.

Zheng v. Aviva Insurance Company of Canada (2018 ONSC 5707)

The insurer applied for judicial review of the Tribunal’s decision that a denial of medical benefits that did not comply with section 38 resulted in the treatment plan being payable and barring the insurer from relying on the MIG. The court found the Tribunal’s decision to be reasonable and concluded that the treatment plans were deemed payable until a proper denial was issued by the insurer. However, the court wrote that its decision was limited to the treatment plans at issue and that section 38(11) did not impose a permanent prohibition on the insurer with respect to whether the claimant’s impairment was covered by the MIG or subject to the $3,500 limit.

Applicant v. Unifund Assurance Company (17-006328)

The claimant sought removal from the MIG and two medical benefits. Adjudicator Ferguson held that the claimant suffered from a chronic pain condition which removed him from the MIG. He relied upon the claimant’s ongoing functional impairments, and the claimant’s ongoing pain complaints. He also awarded the claim for further physical therapy, but denied the claim for psychological treatment.

Applicant v. Certas Direct Insurance Company (17-009179)

The claimant sought entitlement to a chronic pain treatment program. Adjudicator Ferguson found the treatment plan payable. He concluded that the claimant suffered from ongoing pain and was significantly impaired in terms of pre-accident activities. He also noted that the IE assessor found the claimant to be “approaching” maximum medical recovery, which left room for further treatment options.

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