Category: Medical Benefits

Applicant v Motor Vehicle Accident Claims Fund (17-007244)

The claimant sought medical benefits for physical rehabilitation and chiropractic services, and interest on the overdue payment of benefits. Adjudicator Pinto held that the treatment plans in dispute were not reasonable and necessary and that there was insufficient objective medical evidence to support the treatment plans. Adjudicator Pinto preferred the insurer’s evidence that the claimant, from a musculoskeletal perspective, had attained maximal medical recovery from any facility-based treatment.

Z.A. v Aviva Insurance Canada (17-008789)

The claimant sought entitlement to the costs of examination for an in-home assessment, attendant care benefits, and a special award. Adjudicator Norris held that the claimant was unsuccessful on all issues. The adjudicator held that the cost of an in-home assessment was not payable as it was incurred prior to submitting a treatment and assessment plan, as well as being incurring during a period in which the claimant was being treated under the MIG. The adjudicator held that the claimant was entitled to ACBs from the date the claimant’s Form 1 was submitted until the date the insurer produced a responding Form 1, but was not entitled to ACBs thereafter. The insurer produced its ACB IE report beyond the required 10 day period. However, the adjudicator did not award any ACBs and held that the insurer did not unreasonably delay or withhold payment of ACBs because: 1) the claimant took 3 months to submit a Form 1; 2) the claimant did not explain why services were not incurred; and 3) the claimant did not incur any services despite having entitlement to the benefit. The adjudicator declined to issue a special award based on Aviva’s delay in delivering its IE report because there was no delay or withheld payment of ACBs since they claimant did not incur any attendant care expenses. The adjudicator also declined to make a costs award under Rule 19.1 of the LAT Rules as neither party acted unreasonable, frivolous, vexatious, or in bad faith.

O.S. v. Certas Direct Insurance Company (17-007412)

The claimant sought entitlement to one treatment plan for chiropractic and physiotherapy services. Adjudicator Cavdar found that the treatment plan in dispute was not reasonable and necessary as a result of the accident and not payable. Adjudicator Cavdar found that the treatment plan was related to a post-accident workplace injury rather than the motor vehicle accident.

Applicant v. Scottish & York (17-006460)

The claimant sought entitlement to a psychological assessment and chronic pain treatment. Adjudicator Victor held that the claimant was entitled to the medical benefits as they were reasonable and necessary. The claimant demonstrated consistent psychological symptoms throughout a pre-screening and two IEs. While the claimant only received a formal diagnosis from the second IE, the adjudicator held that a psychological diagnosis was not necessary. It was enough for the claimant to exhibit psychological symptoms related to the MVA that affected his life for a psychological assessment to be reasonable and necessary. While not in dispute at the hearing, the adjudicator noted that the insurer’s reasons for the denial met the requirements of the SABS and as the insurer stated that it had reviewed the MIG and the IE’s medical opinion and concluded that there was no compelling evidence that the impairment was not a predominantly minor injury. The adjudicator held that the chronic pain treatment was reasonable and necessary as the adjudicator preferred the evidence of the claimant’s expert over the IE assessor. The IE assessor’s paper review contradicted his earlier report in that it stated the claimant had returned to work and was fit, whereas the initial report stated that claimant had returned to work on modified hours and duties and continued to experience chronic pain and limitations.

Y.I. v. Aviva Canada Inc. (18-0005452)

The claimant sought entitlement to chiropractic, massage, and physiotherapy treatment proposed in four treatment plans. Adjudicator Johal found that the claimant was entitled to the cost of two of the treatment plans in dispute, based on a detailed analysis of the OCF-18 forms and the IE assessments. Adjudicator Johal found that the IE assessor did not provide sufficient explanation of why the right shoulder tear was not accident-related. The reduction of pain was found to be a reasonable and necessary goal for treatment.

Applicant v Aviva Insurance Canada (17-008143)

The claimant sought entitlement to IRBs, medical benefits, and various costs of examinations, in addition to a special award. Adjudicator Fricot held that the claimant was not entitled to any of the benefits claimed. The claimant argued that all documentation submitted by the insurer be ruled inadmissible as it was not sworn, or that it should be given no weight as it was not authenticated. The claimant also argued that no weight should be given to the statements reported to be made to assessors and referenced in their reports. The adjudicator denied this request as the production and use of the relevant documents was contemplated and agreed to by the parties. The claimant also objected to the admissibility of the insurer’s reply submissions and argued that the insurer was not entitled to file reply submissions without leave. The adjudicator held that the reply submissions were admissible and the insurer was entitled to make submissions in response due to the nature of the allegations made in the claimant’s reply submissions and because the claimant alleged that the insurer had breached the Tribunal’s Order. There was no prejudice to the claimant as it was allowed to reply at the oral portion of the hearing. The adjudicator held that the claimant was not entitled to IRBs as he was not employed, self-employed or in receipt of EI benefits at the time of the accident, nor had he worked 26 of the 52 weeks pre-accident. The claimant had worked for less than 26 weeks in the 52 weeks pre-accident, and had been laid off between 2014 and 2016. The adjudicator held that while there was record of being “laid off”, the evidence did not establish an ongoing employment relationship with the claimant’s employer between 2014 to 2016. The adjudicator held that the medical benefits and assessment plans sought were not reasonable and necessary because his accident-related injuries had resolved prior .

V.H. v. Certas Home & Auto Company (17-006293)

The claimant sought entitlement to mileage for the cost of her medical service providers attending her home. She argued that because she was in a rural community without such services, it was reasonable and necessary for such payments to be made. The insurer argued that it was paying for the travel time of the treatment providers, but that mileage was not payable under the SABS. Adjudicator Punyarthi agreed with the insurer. She held that mileage expenses were only payable in accordance with the SABS and the Guidelines, which did not authorize payment of mileage for service providers.

Applicant v. Aviva Canada Inc. (17-005825)

The claimant sought entitlement to various medical benefits and a special award. Adjudicator Létourneau concluded that all of the proposed treatments were reasonable and necessary for the claimant’s injuries. The family physician had diagnosed chronic pain and recommended ongoing physical therapy. The claimant also demonstrated psychological impairments that required ongoing treatment. The IE reports did not directly contradict the recommendations in the treatment plans. Adjudicator Létourneau also issued a special award of 25 percent against the insurer. He concluded that once the claimant had provided the outstanding clinical notes and records of all treatment providers in his Case Conference summary, the insurer had sufficient information to determine that the denied medical benefits were reasonable and necessary. The insurer’s delay in not approving the denied benefits was unreasonable.

Applicant v. Aviva Insurance Canada (17-006138)

The claimant sought entitlement to two treatment plans for chiropractic and psychological services. Adjudicator Watt found that the claimant was not entitled to the benefits in dispute. Adjudicator Watt found that many of the medical complaints raised by the claimant were not connected to the 2013 motor vehicle accident. Adjudicator Watt found that the treatment plans were not reasonable and necessary as a result of the accident. The claimant’s MIG status was not listed as an issue in dispute, but Adjudicator Watt also found that there was no evidence before the Tribunal that would take the claimant outside of the MIG. Adjudicator Watt found that the self-represented claimant had circumvented the disclosure process by returning consents for third party information late, which unfairly prevented the respondent from obtaining a decoded OHIP summary. The respondent sought a costs award. Adjudicator Watt noted that the previous adjudicator in the dispute resolution process found that the self-represented claimant had acted disrespectfully and unprofessionally, but he held that this behaviour did not meet the high standard required for an order for costs.

M.R. v Aviva Insurance Canada (17-007428)

The claimant sought entitlement to various medical benefits and the costs of a chronic pain examination. The Tribunal was also asked to determine whether the claimant was statute-barred from disputing one of the denied benefits, as he failed to commence his application within the two year time frame. Adjudicator Kepman concluded that the application for one benefit was time-barred as the claimant failed to provide any reasons for the delay. Adjudicator Kepman further concluded that the claimant had failed to adduce evidence to indicate that the requested benefits or the chronic pain examination were reasonably or necessary.