Category: Medical Benefits

J.B. v. The Guarantee Company of North America (17-003860)

The claimant sought entitlement to ongoing IRBs, and various medical benefits. Adjudicator Anwar found the claimant to be credible, and concluded that he was unable to perform the essential tasks of his pre-accident employment in home construction. IRBs were awarded up to the date of the 104 week anniversary, with IRBs beyond that date to be addressed by the parties at a later date. The adjudicator did not award the claimed treatment plans because the claimant failed to submit them as part of his case brief. Costs and a special award were not issued.

Applicant v Aviva Canada Inc. (17-007626)

The claimant sought medical benefits for assistive devices, chiropractic treatment, and a functionality assessment, as well as a special award. Adjudicator Boyce held that the claimant was entitled to the medical benefits sought, but not a special award. The adjudicator held that the assistive devices sought were reasonable and necessary as Aviva removed the claimant from the MIG and took the position that she could manage her pain with a home-based exercise plan. The adjudicator also held that chiropractic treatment was reasonable and necessary as the claimant plateaued with physiotherapy and was recommended to explore alternative methods of rehabilitation. The adjudicator further held that the incurred functional abilities evaluation was reasonable and necessary, as it was reasonable to determine how the claimant’s injuries impaired her work and home life to escape the MIG, it was necessary to ensure she did not re-injure herself at work, and it was necessary to educate the claimant on her limitations and prevention of pain. The adjudicator held that Aviva’s minor delay in producing the AB file did not necessitate a special award, as it did not prejudice the claimant or prevent her from receiving benefits.

T.S. v. Aviva General Insurance Canada (17-000835)

The claimant sought reconsideration of the Tribunal’s decision that his injuries fell under the MIG. The Tribunal had concluded that the claimant suffered chronic pain, but that it was “clinically associated sequelae” of the initial “minor injury.” Executive Chair Lamoureux reversed the Tribunal’s decision. She held that the Tribunal’s finding that the claimant suffered from chronic pain was sufficient to deem his impairment more serious than a “minor injury.” She also wrote that chronic pain syndrome could not be “clinically associated sequelae” falling under the MIG. Executive Chair Lamoureux awarded four treatment plans that were initially denied by the Tribunal based on the claimant’s injuries falling within the MIG.

Applicant v Aviva Insurance Canada (17-003450)

The applicant sought the costs of a chronic pain assessment. Based on an IE physiatry paper review, Aviva argued that continuing with psychological treatment alone would suffice. Adjudicator Diplas held that the cost of examination for a chronic pain assessment was reasonable and necessary. The adjudicator relied on clinical notes and records from the applicant’s chiropractor who had been treating the applicant since a prior 2013 accident, and placed significant weight on the evidence as it related to the history and chronicity of physical pain. The adjudicator also relied on a chronic pain assessment report, which was the assessment in dispute for which the applicant incurred the costs. The adjudicator held that the report bolstered his findings that a chronic pain assessment was reasonable and necessary. The adjudicator gave little weight to the section 44 paper review because the physiatrist did not physically assess the applicant and focused on whether the applicant suffered a complete inability to return to previous activities. The adjudicator further held that Aviva waived the requirements for a signed OCF-18, by scheduling an section 44 examination in response to an unsigned OCF-18.

C.S. v. Wawanesa Mutual Insurance Company (17-008727)

The claimant sought entitlement to various medical benefits and cost of assessments. Adjudicator Ferguson denied the benefits incurred before the submission of a treatment plan and denied the treatment plan for nutritional counselling. He awarded the cost of approved assistive devices, but ordered that the claimant had to incur the cost of the devices before the insurer was required to pay for them. There was no reason why the Tribunal should deem the expenses incurred.

Applicant v Aviva Insurance Canada (17-003989)

The claimant sought medical benefits for an orthopaedic assessment and interest on the overdue payment of benefits. Adjudicator Watt held that the claimant was not entitled to the cost of the orthopaedic assessment. The claimant had a pre-accident history of fibromyalgia, anxiety disorder, lower back pain, right knee osteoarthritis, and was considered substantially disabled. Adjudicator Watt held that there was very little evidence, if any, differentiating between the claimant’s pre-accident injuries and post-accident injuries and the effect of the accident on the injuries. Adjudicator Watt held that the finding of soft tissue complaints did not necessitate an orthopaedic assessment. Additionally, the orthopaedic surgeon who submitted the treatment plan was unaware of the claimant’s pre-accident injuries. Further, Adjudicator Watt preferred the insurer’s orthopaedic surgeon’s report, which found no physical impairments.

Applicant v. RBC General Insurance Company (17-006369)

The claimant sought entitlement to four treatment plans for physical therapy. As a preliminary issue, the claimant sought to exclude the IE reports because the IE assessor did not file the LAT Acknowledgement of Expert Duties and because no section 44 notice was sent to the claimant regarding an addendum report. Adjudicator Helt permitted the initial IE to be submitted despite the Acknowledgement not being submitted; she excluded the addendum report because the section 44 notice had not been delivered to the claimant. In terms of the treatment plans, the adjudicator awarded one of the four treatment plans. She declined to award the last three treatment plans because the claimant did not report any improvement from passive therapy and the minimal improvement in range of motion could not be attributed to the treatment. Further, the claimant had returned to work within one day of the accident and remained independent with personal care.

Applicant v. Aviva Insurance Canada (17-006252)

The claimant sought entitlement to NEBs, physical therapy, and various assistive devices. Adjudicator Kershaw awarded NEBs and the assistive devices but denied further physical therapy. NEBs were awarded because the claimant had gone from an independent retiree to one dependent on others to assist with activities of daily living. She no longer drove and was unable to attend most of the religious activities she previously performed. Her grandson attended her home regularly to assist with dishes, cooking, cleaning, and laundry. A new mattress was approved because it would provide pain relief. Further physical therapy was denied because the plaintiff’s range of motion had reached maximum medical recovery and there were no records submitted to show further recovery would result.

Applicant v. Unica Insurance Inc. (17-007052)

The claimant sought a declaration that she sustained a catastrophic impairment, and sought entitlement to ACBs and medical benefits. The insurer denied all of the claims and argued that the claim for ACBs was time barred. Adjudicator Ferguson held that the claimant did not suffer a catastrophic impairment. He preferred the evidence of the IE assessors over that of the claimant’s assessors because the claimant’s assessors did not conduct any psychological testing, did not discuss the four areas of function, and did not explain how his scores for physical impairments were made. Adjudicator Ferguson held that the claim for ACBs was time barred and that the claimant only had two years from the date the insurer reduced her ACBs entitlement to apply to the LAT. The claims for medical benefits were dismissed because the claimant failed to provide evidence that they were reasonable for her injuries.

Applicant v. Aviva Insurance Canada (17-007959)

The claimant sought entitlement to IRBs and the cost of a chronic pain assessment. Adjudicator Watt dismissed both claims. Regarding IRBs, he held that the claimant was able to work. None of the claimant’s own physicians said that the claimant was unable to work, and the IE assessors made the same conclusions. Regarding the chronic pain assessment, the claimant made no submissions so the claim was dismissed.