Category: Medical Benefits

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.

S.S. v. Aviva Insurance Canada (17-007853)

The claimant sought entitlement to three medical benefits for physical therapy. Adjudicator Helt concluded that the proposed treatment was not reasonable and necessary. She concluded that the claimant’s physical complaints pre-dated the accident, and that the evidence did not support the need for treatment in relation to the accident. The medical evidence also failed to address how the accident may have aggravated the claimant’s pre-existing conditions.

B.H. v. Aviva Canada Inc. (17-003774)

The claimant sought reconsideration of the Tribunal’s decision that he could not proceed with his application due to failure to attend an IE. Executive Chair Lamoureux held that the insurer’s denial of medication benefits and subsequent request for an IE did not comply with sections 38 and 44 of the SABS. She wrote that the insurer’s denial did not refer to the medical information Aviva relied upon to make its determination or explain why it could not determine whether the treatment recommendations were not reasonable. Executive Chair Lamoureux held that improper denial resulted in the disputed medical benefits being payable.

Applicant v. Aviva Insurance Canada (17-005791)

The claimant sought removal from the MIG and entitlement to four treatment plans. Adjudicator Johal concluded that the claimant’s psychological injuries fell outside of the MIG, and the claimant was entitled to all four treatment plans. The insurer’s assessor acknowledged that the claimant’s emotional condition was significantly affecting her ability to function effectively, but did not assign a diagnosis; the assessor acknowledged an adjustment disorder in an addendum. The treatment plans for psychological and physical treatment were awarded, the latter based on the recommendations of the claimant’s family physician.