Category: Medical Benefits

H.Y.Z. v. Allstate Canada (18-003942)

The insurer initially accepted that the claimant sustained a catastrophic impairment, but reversed its decision upon receipt of ODSP records detailing similar pre-accident impairments. The claimant argued that the treatment plans submitted during the period while she had access to the catastrophic impairment limits ought to be payable. The insurer argued that because the claimant did not truly suffer a catastrophic impairment, she was not entitled to any medical benefits in excess of the standard limits. Vice Chair Lester held that the claimant was entitled to seek medical benefits in excess of the standard limits for the time period the insurer had advised that she was catastrophically impaired. Vice Chair Lester considered each claimed medical benefit under the reasonable and necessary standard, and awarded the treatment plans for psychological treatment (aside from transportation costs). Further physical therapy was mostly denied as there was no evidence to suggest that the claimant received any benefit from the treatment. No submissions were made regarding occupational therapy or an attendant care assessment. Those claims were also denied.

Vespa v. Aviva General Insurance Company (2022 ONSC 3283)

The claimant appealed the Tribunal’s denial of a chiropractic treatment plan, arguing that the adjudicator’s failure to refer to a specific medicolegal report suggested the lack of procedural fairness or denial of natural justice. The Divisional Court dismissed the appeal. The Court concluded that the Tribunal’s reasons demonstrated that the initial decision and reconsideration decision were fair. The reasons demonstrated that the Tribunal had engaged with the claimant’s argument and explained why the Tribunal disagreed with the claimant’s position. The Court explained that an adjudicator is not required to refer to every piece of evidence before him or her; procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.

Ramnarine v. Aviva General Insurance (20-007108)

The claimant sought catastrophic impairment designation under Criterion 8 (marked impairment in Activities of Daily Living, Social Functioning, and Adaptation), as well as entitlement to Non Earner Benefits and various medical benefits. The claimant had a significant pre-accident medical history for chronic pain, Somatic Symptom Disorder, and Major Depressive Disorder. Adjudicator Hines found that the accident was not a necessary cause of the claimant’s physical and psychological impairments, nor did it result in the functional limitations which formed the basis for the claimant’s application for a CAT determination. Notably, psychological status reports prepared both shortly prior to and shortly after the accident noted very similar impairments and limitations. Given that “not much had changed post-accident”, Adjudicator Hines found that the claimant had not sustained a CAT impairment as a result of the accident, nor was he entitled to NEBs. Adjudicator Hines went on to find that a chronic pain program was reasonable and necessary as there was some exacerbation of his pre-existing chronic pain as a result of the accident. She also found an occupational therapy assessment to be reasonable and necessary to investigate the degree that the claimant required attendant care, if any, as a result of his accident-related impairments.

Singh v. Aviva Insurance Company (20-008014)

In this LAT dispute, the insurer challenged the length and hourly rates claimed in one of the claimant’s treatment plans. The claimant was seeking $1,466.25 in remaining amounts for psychological treatment. The plan consisted of twelve one and a half hour sessions at the hourly rate of $224.42. Dr. Harris’ psychological report, which formed the basis of the disputed OCF-18 form, had recommended that the claimant receive twelve sessions but had not specified their length. The insurer argued that the claimant should only be entitled to twelve one-hour sessions, which were limited to the hourly rate of $149.61 pursuant to the FSCO Professional Services Guideline. Adjudicator Deol agreed that treatment fees should not exceed the FSCO limits and upheld the denial of the remaining treatment balance.

Bernard v. Unica Insurance Inc. (20-007082)

The claimant sought catastrophic impairment designation, as well as entitlement to non earner benefits, attendant care benefits, and housekeeping benefits. The claimant, who had a pre-existing history of ADHD and Asperger’s syndrome, suffered a comminuted fracture of his left tibia/fibula when he was struck by a car while riding his bicycle. The claimant underwent two surgeries, and suffered from ongoing pain and functional impairment. The parties agreed that from a physical perspective, the claimant’s injuries were significant, permanent impairments. The insurer’s IE assessors concluded that the claimant suffered a 44% WPI. The parties disagreed as to whether the claimant suffered impairments from a psychological perspective that met the criteria for a 55% WPI. Based on the 44% WPI, the claimant would require a further 19% WPI in order to meet the threshold established in the Combined Values Chart. Adjudicator Grant found that the evidence fell short of meeting the requirements to establish same. Notably, the family doctor records were largely silent with any notations that would support complaints or recommendations for psychological-based treatment or medication. Adjudicator Grant accepted that the claimant had established entitlement to NEBs, as his physical injuries significantly limited his ability to engage in almost all aspects of his activities of daily living. Adjudicator Grant found that attendant care services were not reasonable and necessary, and that the claimant was not entitled to housekeeping benefits as he was not found CAT.

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)

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)

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)

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)

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.

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