Category: Medical Benefits

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)

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)

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)

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.

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.

Powell v. Aviva Insurance Company of Canada (19-012928)

The claimant sought a catastrophic impairment designation, entitlement to ACBs, and medical benefits for occupational therapy and vision therapy. Adjudicator Grieves found that the claimant suffered a Class 4 Marked Impairment in adaptation, and therefore met the catastrophic impairment definition. The accident was a relatively minor rear-end collision, but resulted in the claimant suffering from a mild TBI, and psychological injuries. She continued to work after the accident, but only on a part-time basis. She lacked motivation to engage in daily routines, showered only once per week, had trouble preparing meals, and the claimant’s home was scattered with garbage and cat feces. The claimant experienced multiple periods where she needed to live with her mother because she could not manage independent living. Adjudicator Grieves found the claimant was entitled to ACBs of $644.63 per month for assistance with meal preparation and bathroom and bedroom hygiene. She was critical of the insurer’s assessor, who considered only the claimant’s physical abilities and failed to consider the claimant’s psychological barriers. Medical benefits for aquatherapy was dismissed as it was duplicative, and the claimant already had access to a pool and personal trainer. A treatment plan for a professional organizer and a treatment plan for vision therapy was awarded.

Luluquisin v Aviva Insurance Company of Canada (20-010381)

The claimant (who was catastrophically impaired) sought entitlement to attendant care benefits at the rate of $6,000 per month as well as various medical benefits. Adjudicator Farlam accepted the insurer’s monthly attendant care rate ($1,029.42 per month) as the claimant failed to establish with medical evidence that $6,000 per month in attendant care services was reasonable and necessary, had failed to attend an IE, and the treatment provider had failed to respond to a section 46 request for additional information. Adjudicator Farlam found that the claimant was entitled to previously partially approved amounts for case management services and chiropractic treatment (if not already paid), but not the denied remaining balances. She further found that the remaining disputed benefits were not payable, given the lack of evidence to support that the proposed services were reasonable and necessary.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.

S.V. v. Wawanesa Insurance (18-009702 and 20-001009)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment, IRBs, ACBs, and various medical benefits. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment as a result of the accident. While the claimant did sustain a psychological impairment in the accident, he sustained only Class 2 Mild Impairments or Class 3 Moderate Impairments due to the accident. The claimant maintained his social contacts, and he communicated with assessors in an effective and pleasant manner; there was no evidence linking the claimant’s psychological impairments with his ability to perform activities of daily living; and the claimant remained independent with sustaining an ordinary routine without supervision, and used his judgment to make simple decisions. Adjudicator Hines was critical of the claimant’s experts, as they did not review the claimant’s pre-accident medical records which showed significant pre-accident health issues, and relied mainly on the claimant’s self-reporting. The claim was IRBs was denied, as the claimant failed to prove how his psychological impairments affected his ability to work. He also failed to submit financial records in support of a loss of income. The claim for ACBs was denied as the claimant’s Form 1 assessor relied upon the claimant’s self-reporting and she did not review the pre-accident medical records, nor did she understand the extent of the claimant’s pre-accident health issues. The medical benefits were denied because the claimant failed to prove the connection between the proposed treatment and the accident.

Joseph v. ACE INA Insurance (19-010124)

The claimant was involved in a motor vehicle accident in 2018. He was later determined to be catastrophically impaired as a result of the accident. The claimant applied to the LAT seeking entitlement to numerous medical and rehabilitation benefits, including the cost of cancellation fees, home modifications totaling $262,619.50, the cost of a trip to Haiti, and provider travel time for a psychologist. The majority of the treatment plans in dispute had been partially approved. Both parties claimed costs of the hearing in relation to allegations of conduct resulting in a delayed and unnecessarily lengthy hearing. The insurer also sought judgment in relation to unspecified costs previously awarded in relation to two motions. Adjudicator Grieves found that the claimant was entitled to partial payment of the proposed cost of a trip to Haiti for therapeutic purposes (the claimant was from Haiti; the insurer had previously approved two trips and denied the third proposed trip; and in Haiti, the claimant reportedly participated in “family cultural practices and received alternative therapies.”) The claimant was not entitled to the remaining issues in dispute. The travel time of the psychologist was considered not reasonable and necessary because the claimant had access to approved transportation expenses and on several occasions had indicated a preference for receiving treatment at the therapist’s office. The insurer had previously approved home modifications in the amount of $30,670.75. Adjudicator Grieves found that the disputed amount was not payable because the modifications proposed in the claimant’s report were largely to address speculative future needs, not to address the claimant’s current disability. Neither party was awarded costs of the hearing. Adjudicator Grieves held that the standard for ordering costs was very high and found that both parties contributed to the delay and inefficiency of the hearing. The insurer was awarded $350 in costs in relation to two prior motions. Costs were awarded because the claimant’s “conduct interfered with the Tribunal’s ability to conduct a fair, efficient and effective process, and resulted in wasted resources and prejudice to the respondent.” In addition, Adjudicator Grieves found that the claimant’s “misconduct was serious in that it resulted in delay of the start of the hearing and wasted time for the parties in preparing and responding to a motion that the applicant succeeded on and then essentially requested to ‘undo’.”