Category: Medical Benefits

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. 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 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. 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.

Applicant v. Aviva Insurance (17-005631)

The claimant sought entitlement to a chronic pain assessment and assistive devices. Adjudicator Kepman found the claimant credible and granted the chronic pain assessment based on ongoing wrist pain years after the accident. The insurer had paid part of the claims for assistive devices, but denied the remainder based on the cost. Adjudicator Kepman concluded that the claimant failed to explain why the proposed costs were reasonable when similar alternatives were available at a lower cost.

Applicant v. Wawanesa Mutual Insurance Company (17-005887)

The claimant (who was represented by a litigation guardian due to pre-existing mental disability) sought entitlement to six treatment plans for physical therapy. Adjudicator Watt concluded that the therapy was not reasonable and necessary. The claimant had been receiving similar treatment for four years and there was no evidence that further treatment of a chiropractic nature was required. Adjudicator Watt wrote that the claimant had not proven that any ongoing physical issues were related to the accident, and instead may have been related to the claimant’s self-injurious behaviour.

Applicant v Aviva Insurance Canada (17-006470)

The applicant sought medical benefits for a massage therapy chair and extended warranty. Adjudicator Ferguson held that the applicant was entitled to the benefit claimed as it was reasonable and necessary. The applicant was also entitled to interest on overdue payment of benefits due. The adjudicator preferred the applicant’s treatment plan from an occupational therapist and a physiatry report over Aviva’s evidence. Aviva relied on a letter from an occupational therapist who did not recommend the chair but provided no reason for his opinion. Additionally, Aviva’s submissions did not address pre- and post-levels of well-being or functionality, except for pain, whereas the applicant’s evidence found that a chair would increase the applicant’s physical activity and improve family interaction. Aviva further argued that the cost of the chair was unreasonable, but the adjudicator found that Aviva did not make a case that cheaper models were as effective and the applicant did not claim the most expensive model available.