Category: Medical Benefits

Padua v. Co-operators General Insurance Company (20-005450)

Post author By tgp-admin
Post date June 6, 2022
No Comments on Padua v. Co-operators General Insurance Company (20-005450)

The claimant brought a LAT application after various treatment plans were denied because her injuries were deemed to fall under the MIG. She also sought a special award for unreasonably withheld or delayed payments. Several months after the accident in April 2018, the claimant had voluntarily withdrawn from receiving treatment without exhausting her MIG benefits. She did not seek further treatment until January 2020. The claimant had not referenced any psychological injuries to her treatment providers following the accident. Owing to the lapse of a year and a half in which no treatment was sought, combined with the absence of any psychological complaints related to the accident prior to January 2020, the insurer denied approval of the assessment and did not conduct a psychological IE. Adjudicator Norris ruled that the claimant was entitled to a special award in the amount of $1,612.79. He found that the insurer had acted unreasonably in rejecting the conclusions of Dr. Brunshaw’s psychological assessment dated April 22, 2020, which stated that the claimant had suffered psychological injuries from the accident and required treatment. At the hearing, the claimant acknowledged that she had denied experiencing pre-accident psychological issues in her assessment, despite her family doctor’s notes indicating otherwise. However, Adjudicator Norris noted that the insurer had not produced any independent medical opinions following receipt of the claimant’s psychological report, leaving its conclusion, which included causation of the alleged injuries, uncontested. He opined that psychological injuries could develop over time and that the year and a half gap did not disqualify the claimant from receiving further treatment. She was deemed to be entitled to 50% of the amounts withheld but was awarded 30% to account for a failure to disclose pre-existing psychological issues during her psychological assessment.

G.P. v. Wawanesa Mutual Insurance Company (18-010583)

Post author By tgp-admin
Post date May 31, 2022
No Comments on G.P. v. Wawanesa Mutual Insurance Company (18-010583)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, the cost of CAT assessments, and various medical benefits. Vice Chair Lester found that the claimant suffered a catastrophic impairment due to Class 4 Marked Impairments in both adaptation, and concentration, persistence, and pace. The claimant suffered from chronic pain as a result of a minor accident, which deteriorated into somatic symptom disorder with predominant pain and major depressive disorder. The claimant suffered from panic attacks once to twice per week. She was unable to deal with stressful circumstances, had not returned to work as a PSW, and became emotional and overwhelmed by minor things. The claimant was also found to meet the post-104 week IRB test. The only jobs the claimant was suited for were PSW work and an office manager role. The insurer did not have any IEs addressing post-104 week IRBs because it had terminated IRBs within the first 104 weeks. Notably, the insurer’s CAT assessments noted Class 3 Moderate Impairments in social functioning, which was relevant for the claimant’s ability to communicate effectively and ability to get along with others, and found a Class 3 Moderate Impairment in concentration, persistence, and pace, which was relevant to the claimant’s ability to sustain focused attention in a work setting. All of these conclusions supported the determination that the claimant suffered a complete inability to engage in work for which she was suited. The $26,971.50 for CAT assessments, $13,566.81 for a chronic pain program, $2,200 for a chronic pain assessment, and $1,808 for an FAE were awarded due to the insurer’s failure to comply with section 38(8). The denials did not provide adequate medical reasons for the denial, and referred the claimant to read other documents. Vice Chair Lester was critical of the insurer’s reason that something was “excessive” without providing any detail. Finally, Vice Chair Lester granted a special award of 30 percent on the awarded IRBs and treatment plans based on the insurer’s decision to “blindly follow” the IE assessor opinions without considering other evidence. The claimant suffered financial hardships as a result of the denials, including the need to apply for OW, borrow money from her family, and cut back on her diet.

Tanner v. Certas Direct (21-000564)

Post author By tgp-admin
Post date May 26, 2022
No Comments on Tanner v. Certas Direct (21-000564)

The claimant applied to the LAT for a catastrophic impairment designation, post-104 week IRBs, and payment of various medical benefits including partially approved CAT assessments. Adjudicator Reilly denied all claims and dismissed the application. With respect to the catastrophic impairment, Adjudicator Reilly found a maximum combined WPI of 32 percent. She found the claimant’s assessors attributed excessive impairment percentages. She found no evidence of right shoulder impairment and found lumbar spine impairment rated too high. She found the claimant’s left wrist and shoulder impairments ought to have been combined before arriving at the total WPI, rather than rating each separately. She found the rating of 18 percent WPI for grip strength to be questionable as OT and FAE assessments found normal grip strength. In terms of neurological ratings, Adjudicator Reilly found no evidence to support a rating for sexual dysfunction or hearing, and the rating for disturbances of consciousness and awareness ought to have been deferred to a psychiatrist. She found a total of 32 percent WPI for orthopaedic and neurological impairment, which did not meet Criterion 6. In terms of mental or behavioural impairment, Adjudicator Reilly did not accept the claimant’s expert’s rating of 20 percent WPI, as the facts described by the assessor were not supported by the evidence (i.e. ability to travel, ability to drive, ability to work part-time). Adjudicator Reilly preferred a maximum WPI of 10 percent for mental and behavioural impairment based on the IE assessor’s opinion. The combined physical and mental impairment did not exceed 55 percent, and the catastrophic impairment designation was dismissed. Adjudicator Reilly concluded that the claimant did not meet the post-104 week IRB test. The claimant had returned to work in a part-time fashion on multiple occasions after the accident. Surveillance showed him with greater physical abilities than reported to his assessors. The claimant’s job was terminated in 2021 because he did not want to return to the office full-time, and the management dismissed him. The claim for further CAT assessments was dismissed, as the claimant did not advance evidence to indicate why the denied amounts were reasonable and necessary. The claim for assistive devices was dismissed because they were not submitted on OCF-18s, and the claimant had exhausted his medical benefits limits.

Barrie v. Intact Insurance Company (20-004866)

Post author By tgp-admin
Post date May 24, 2022
No Comments on Barrie v. Intact Insurance Company (20-004866)

The claimant sought full approval of an OCF-18 for psychological treatment in the amount of $3,491.48. The insurer had only approved $2,543.77 of the requested amount. The disputed treatment plan included 12, 1.5 hour sessions with psychologist Dr. Aghamohseni. The insurer had advised the claimant that it required additional information to justify approval of 1.5 hour sessions. The insurer had also reduced the approved amount when it became aware that, contrary to the information provided on the OCF-18, a portion of the treatment would be provided by Ms. Gharibi, a qualifying registered psychotherapist. Ms. Gharibi testified at the hearing that 45 minute sessions were sufficient and that the claimant was generally unable to sit for a longer period of time. Consequently, Adjudicator Lake agreed with the insurer and held that the claimant was not entitled to 1.5 hour sessions. She also found that the insurer’s reduced rate was reasonable, given Ms. Gharibi’s limited credentials and experience in providing psychological treatment.

Rao v. Wawanesa Mutual Insurance Co. (20-001654)

Post author By tgp-admin
Post date May 12, 2022
No Comments on Rao v. Wawanesa Mutual Insurance Co. (20-001654)

The claimant applied to the LAT seeking CAT determination under Criteria 8 and entitlement to post-104 IRBs and various medical/rehabilitation benefits. Causation was an issue at the hearing. The subject motor vehicle accident occurred on April 4, 2016. At the time of the subject accident, the claimant was still recovering from an incident in August 2015, which left her with a concussion and unable to work for 8 months. The subject accident occurred while the claimant was on her way to work for the first time since August 2015. The “but for” test was applied to the issue of causation. Vice-Chair Shapiro found that while the subject rear-end collision was light, it did affect the claimant, stating “while there is a dispute of what the actual physical impact the accident had on her brain and cognitive function, I accept that it was an emotionally traumatic event.” Vice-Chair Shapiro preferred the insurer’s CAT opinions, finding that the claimant’s CAT report lacked meaningful validity testing and was generally inconsistent with the records of treating practitioners and evidence of functional abilities. Vice-Chair Shapiro found that the claimant likely sustained a mild second concussion in the subject accident, which resolved on its own. The testimony of the claimant’s treating neurologist was given less weight as she was unaware of the subject accident until she was summonsed to be a witness at a hearing, and therefore her testimony about the accident causing the claimant’s current complaints was inconsistent with her medical notes. The claimant was found not to be CAT and was not entitled to post-104 IRBs. She was entitled to driver’s therapy, plus interest if incurred, but not to the other medical benefits in dispute.

Rattani v. Unifund Assurance Company (20-001512)

Post author By tgp-admin
Post date April 29, 2022
No Comments on Rattani v. Unifund Assurance Company (20-001512)

The claimant applied to the LAT seeking entitlement to various medical benefits, including further physical treatment and assessments. Section 38(8) of the SABs provide that an insurer shall respond to a treatment plan within 10 business of receipt and must provide the claimant correspondence outlining all medical and all other reasons for any denial. As guidance, the LAT explained that medical and other reasons should at the very least include specific details about a claimant conditions which form the basis for the insurer’s decision. In this case the claimant submitted a treatment plan for an assessment of function to identify barrier to recovery. The insurer denied two assessments citing the lack of medical evidence and the report of its IE assessor who agreed with the findings of an emergency physician that the claimant sustained a left sprain and lumbosacral strain in the accident. Adjudicator Kaur found the insurer’s denial to be insufficient. The insurer failed to provide adequate medical reasons explaining why the assessments were denied. Stating that there was “insufficient medical documentation” was not a medical reason, nor was simply repeating one finding of the IE assessor. The insurer’s denial did not provide an explanation that would allow the claimant to understand why the proposed assessments were not reasonably and necessary in light of the two cited reasons. One treatment plan for physical therapy was also awarded as being reasonable and necessary. The remaining proposed medical treatment was denied by the Tribunal as not reasonable and necessary.

G.H.M. v. Wawanesa Mutual Insurance Company (20-009986)

Post author By tgp-admin
Post date April 22, 2022
No Comments on G.H.M. v. Wawanesa Mutual Insurance Company (20-009986)

The claimant was a six year old minor, who sustained a significant brain injury as well as other impairments as a result of an accident on May 28, 2015. She was deemed catastrophically impaired. The claimant disputed entitlement to rehab benefits for tuition and other expenses for the claimant’s brother to attend school as recommended in three different treatment plans. As a result of the claimant’s injuries, the public school she attended pre-accident was unable to meet her needs for an EA that was recommended. The claimant’s parents found a private school that could meet her special needs, which required funding. The funding for the claimant’s attendance at the private school was approved. She had a twin brother with whom she had a special bond and with whom she had always attended the same school. It was determined that the brother’s attendance at the private school proved to demonstrate significant improvements for the claimant. Three treatment plans were submitted for funding of the twin brother’s tuition at the school. The claimant argued the treatment plans for private tuition for the brother was reasonable and necessary as it achieved the rehabilitative goal of reducing the effects of the claimant’s disability. The insurer relied on the opinion of the IE expert, who determined the treatment plans were not reasonable and necessary as there were ethical concerns about using the brother as a rehabilitative tool and that it could have an adverse effect on the brother both academically and emotionally. The IE expert also opined that the brother may develop compassion fatigue and come to resent the claimant. In addition, the claimant might also become overly dependent on her brother for her future academic success. Adjudicator Hines found that the treatment plans were reasonable and necessary, but were not payable because they were incurred prior to submission of a treatment plan. Adjudicator Hines found the case was unique as the claimant responded negatively to conventional treatment that caused harm and disruption to the claimant’s family. The evidence supported that the brother’s attendance at the same school resulted in significant improvements to the claimant’s communication skills and had a positive impact in her social skills with her peers. The issues raised by the IE expert were speculations and not evidence based. In addition, the insurer did not request production of the claimant brother’s medical and academic records. Adjudicator Hines also took into consideration the testimony of the mother of the claimant, who was found to be a credible witness and gave testimony that both the claimant and her brother thrived at the school. However, the insurer raised an argument that the plans were not payable since they were incurred prior to being submitted. Adjudicator Hines agreed that the insurer was not liable to pay the treatment plans because of the claimant’s failure to comply with section 38(2) of the SABS.

Wang v. Co-Operators General Insurance Company (20-009692)

Post author By tgp-admin
Post date April 11, 2022
No Comments on Wang v. Co-Operators General Insurance Company (20-009692)

The claimant applied to the LAT seeking entitlement to benefits, including a CAT assessment, after being involved in a motor vehicle accident. Vice-Chair Shapiro found that the claimant failed to establish on the evidence that a CAT assessment would be both reasonable and necessary in the circumstances, highlighting that the threshold requires the claimant to demonstrate that her impairments warrant investigation that she possibility has a CAT impairment. Specifically, as the claimant was alleging mental and behaviour impairments, she would need to a show Class 4 marked impairments. The claimant relied largely on her own self-reports which the Tribunal found to be contradictory and inconsistent, including in relation to her injuries, her medical functionality, her symptoms, and her work history. Two further treatment plans for an attendant care assessment and chiropractic services were also dismissed as not reasonable and necessary.

E.J. v. Economical Insurance (20-008287)

Post author By tgp-admin
Post date March 25, 2022
No Comments on E.J. v. Economical Insurance (20-008287)

The minor claimant was the daughter and sibling of family members involved in a serious accident. The claimant was not herself in the vehicle at the time. The claimant applied for accident benefits, but the insurer denied the application arguing that the claimant was not in an accident. Vice Chair Lake agreed that the claimant was not involved in an accident, but that she was an insured person. The claimant was a dependent of her father. Her father suffered physical injuries as a result of the accident. The claimant suffered psychological injuries as a result of her father’s injuries. The claimant was therefore entitled to accident benefits as an insured person. A treatment plan for psychological treatment was awarded. An claim for lost educational expense was not awarded because it was not incurred prior to the accident.

Yang v Dominion of Canada General Insurance Company (20-008471)

Post author By tgp-admin
Post date March 23, 2022
No Comments on Yang v Dominion of Canada General Insurance Company (20-008471)

The claimant sought entitlement to four OCF-18s for physical treatment. The claimant had been removed from the MIG for psychological reasons, but the insurer maintained its denials of the disputed physical treatment plans. The claimant argued that the treatment plan denial letters were improper and failed to mention the medical and other reasons for the denial, contrary to the SABS. The reasons provided for three of the four denial letters were because there was no more funding left under the MIG limits. Vice Chair Lester held that once that reason was no longer true, the insurer has an obligation to re-evaluate the reasonableness and necessity of the OCF-18s previously denied because the claimant now has access to greater benefit limits, and provide updated medical and other reasons for the denial of the OCF-18s. As such, the claimant was found to be entitled to three of the four physical treatment plans.

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