Category: Medical Benefits

N.B. v. Aviva Insurance Canada (17-006736)

The claimant sought entitlement to NEBs and various medical/rehabilitation benefits. The hearing proceeded in-person and by writing. Adjudicator Boyce concluded that the claimant did not suffer a complete inability to carry on a normal life. Adjudicator Boyce noted that while the claimant’s injuries prevented her from returning to some of her pre-accident activities of daily living, she still went grocery shopping, attended Temple, and went swimming post-accident. As such, Adjudicator dismissed the claim for NEBs. With respect to the claimant’s dispute over medical benefits, Adjudicator Boyce awarded some of the disputed medical benefits. Adjudicator Boyce concluded that physical treatment was reasonable and necessary given the claimant’s reports of ongoing pain and because he had observed the claimant in discomfort during the hearing noting that the claimant needed to take breaks and used a cane and back brace at the hearing. Adjudicator Boyce dismissed the claimant’s claim for transportation, as this expense was not payable under the SABS and dismissed her claim for out of pocket expenses, noting that the insurer had paid in full all reasonable out of pocket expenses.

M.G. v. RBC Insurance Company (17-007098)

The claimant disputed his entitlement to NEBs and various medical/rehabilitation benefits. The dispute proceeded by way of a written hearing. Adjudicator Boyce held that while the claimant suffered from pain, the claimant managed his pain and it did not prevent the claimant from engaging in self-care and in his daily activities. Adjudicator Boyce noted that the claimant could dress himself independently, walk for periods of time, and sit and stand without assistance. The claimant also reported that he could drive and use public transportation with pacing. Adjudicator Boyce held that while the evidence submitted by the claimant demonstrated that he suffered from pain and psychological impairments, it was insufficient to meet the high threshold of entitlement to NEBs. With respect to the disputed medical benefits, Adjudicator Boyce found the cost of physical rehabilitation treatment and the cost of a chronic pain assessment reasonable and necessary given the claimant’s pain complaints. As the claimant did not advance sufficient evidence that he was not independent with his self-care, Adjudicator Boyce found that the proposed attendant care assessment was not reasonable or necessary.

E.S. v Aviva Insurance Canada (18-000456)

The claimant sought entitlement to the balance of a partially approved chronic pain assessment treatment plan and interest. Adjudicator Victor awarded the balance of the treatment plan, less transportation expenses, and interest on the overdue payment of benefits. Adjudicator Victor noted that she arrived at her decision largely in part due to the claimant’s credibility and supporting medical records that documented the claimant’s accident-related complaints. Adjudicator Victor noted that the claimant’s chronic pain affected his lifestyle and career, resulting in him taking significant time off work post-accident and him ultimately having to change employment to a job requiring lighter physical requirements. At the hearing, the insurer relied on IE reports to maintain that the balance of the disputed treatment plan was not payable. Adjudicator Victor criticized Dr. Oshidari’s IE report, calling it a “copy and paste” of an earlier report and that it was therefore, unreliable. Given the claimant’s ongoing pain complaints and the effect of his pain on his ability to function post-accident, Adjudicator Victor awarded the balance of the treatment plan for a chronic pain assessment, less transportation expenses, which were not payable under the SABS.

P.P. v Portage La Prairie Mutual Insurance Company (17-008689)

The claimant disputed her entitlement to eight treatment and assessment plans and post-104 week IRBs. Adjudicator Kershaw awarded all of the medical benefits in dispute, save for a portion of a treatment plan that sought funding for a weighted vest. With respect to the weighted vest, Adjudicator Kershaw agreed with the IE neurologist’s opinion that the vest had no scientific utility and therefore was not reasonable and necessary. As for the claim for post-104 week IRBs, Adjudicator Kershaw noted that it was accepted by both the IE assessors and the claimant’s doctors that the claimant had psychological difficulties. Adjudicator Kershaw also relied on the claimant’s doctors’ reports noting that the claimant had cognitive difficulties and dizziness, which he opined would preclude her from returning to employment. Adjudicator Kershaw did not accept the insurer’s vocational assessor’s evidence identifying other suitable employment opportunities for the claimant, noting that the claimant’s psychological and cognitive issues prevented her from returning to gainful employment. As such, Adjudicator Kershaw concluded that the claimant was entitled to post-104 week IRBs.

Applicant v. Aviva General Insurance (17-008268)

The claimant sought entitlement to a chronic pain assessment. Adjudicator Ferguson held that the claimant failed to prove entitlement. He noted that the claimant was not diagnosed with chronic pain by any independent medical assessors, nor had the risk of chronic pain been raised with any independent assessors. The claimant also failed to explain why a chronic pain assessment was reasonable and necessary when the claimant still had physiotherapy and psychological services available to him which he had not pursued.

W.W. v. Aviva Insurance Canada (18-001127)

The claimant sought entitlement to three assessments. Adjudicator Reilly dismissed all three claims. She held that the claimant failed to provide evidence supporting the need for the assessments. The claimant had not sought treatment for years since the accident, and had experienced subsequent injuries in unrelated incidents. She also noted that the evidence suggested that the claimant had returned to his pre-accident activities and employment.

Applicant v. Aviva General Insurance (17-006537)

The claimant sought entitlement to various treatment plans, IRBs and dental treatment. The insurer raised section 33 and 55 defences due to the claimant’s failure to provide requested information and attend IEs. Adjudicator Ferguson held that the claimant was barred from seeking IRBs and dental treatment for failing to provide dental records, invoices, an OCF-10, income tax returns, and post-accident income information requested per section 33. The adjudicator held that there was no legal basis for the claimant’s argument that as long as best efforts are made under s. 33, the claim moves forward. The adjudicator also held that the claimant’s appeal for other goods and services of a medical nature was barred per section 55. The claimant’s reason for non-attendance was that her psychological and pain-related impairments prevented her from leaving her house, which was not supported with any evidence and the insurer had surveillance showing her participating in various ADLs outside of her house. The adjudicator denied various treatment plans due to lack of medical evidence, but found the balance of a chiropractic treatment plan payable as the insurer only denied the treatment plan based on the MIG, and was not allowed to rely on the MIG position after covering psychological treatment.

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.