The claimant sought entitlement to IRBs and to the cost of his US hospital bill. Adjudicator Shapiro denied both claim. In terms of the IRBs, Adjudicator Shapiro held that the claimant did not suffer a substantial inability to return to work as a truck driver based on IE opinion and surveillance evidence of the claimant engaged in post-accident long-haul driving. The claim for hospital expenses was not payable because the insurer had paid up to the $50,000 medical benefits limits.
The claimant sought entitlement to various medical benefits and cost of examinations related to an alleged knee injury. Adjudicator Ferguson held that the knee impairment was not caused by the accident, and the disputed treatment plans were not payable. However, he also concluded that one of the examinations was not properly denied by the insurer, and was therefore payable.
The claimant sought medical benefits for psychological issues, interest on the overdue payment of benefits, and a special award. The insurer argued that the claimant’s injuries fell within the MIG. Adjudicator Reilly held that the claimant was entitled to medical benefits for a psychological examination and psychological treatment as both were reasonable and necessary. The claimant was entitled to interest for any overdue payment of benefits, but was not entitled to a special award. The claimant’s assessors diagnosed Major Depressive Disorder and Post-Traumatic Stress Disorder with Phobic Avoidance to driving; an IE psychologist found no evidence which would warrant any psychological diagnosis and found that the claimant exhibited symptom magnification. Adjudicator Reilly preferred the claimant’s expert assessment to that of the IE psychologist, because the IE psychologist used the DSM-IV criterion instead of DSM-V, and discounted complaints of anxiety and feelings of being overwhelmed. Additionally, the IE psychologist did not review the claimant’s expert report, despite it being available. Adjudicator Reilly held that the IE psychologist’s failure to review the claimant’s expert report was not enough to warrant a special award, as the insurer still took appropriate steps to evaluate the condition of the claimant.
The claimant sought medical benefits for chiropractic services and interest on overdue amounts. Adjudicator Punyarthi held that the treatment plan was neither reasonable nor necessary and that the claimant was not entitled to interest. In support of her claim, the claimant relied on a physician’s report that made a number of treatment recommendations. However, the services on the treatment plan were not listed within the treatment recommendations in the physician’s report. Adjudicator Punyarthi also held that the physician’s report relied on by the claimant contained inconsistent statements regarding the claimant’s prognosis. There was also no affidavit evidence submitted by the claimant on the reasonableness and necessity of the treatment plan.
The insurer sought reconsideration of the Tribunal’s decision that the claimant’s failure to include a police report was not fatal to his application to the Motor Vehicle Accident Claims Fund. Executive Chair Lamoureux upheld the Tribunal’s decision. Despite an application being incomplete, section 32 triggered the insurer’s responsibility to determine whether a benefit was payable. Executive Chair Lamoureux referred to legislation and jurisprudence regarding priority disputes when concluding that applications could be considered complete if they were functionally adequate for their legislated purpose. Executive Chair Lamoureux further held that the insurer was precluded from taking the position that the MIG applied and that the disputed treatment plans were automatically payable. However, the claimant’s application for NEBs was dismissed for a lack of evidence establishing entitlement.
The claimant first applied for accident benefits five and a half years after the accident. The insurer did not indicate that the claim was being denied due to its lateness. Once a LAT application was filed, the insurer argued that the claimant was not entitled to claim accident benefits because of the delay in application. Adjudicator Kershaw held that the insurer could not rely upon the late application argument because it had not communicated that position to the claimant from the time she first applied. In terms of the benefits in dispute, the claimant was removed from the MIG due to non-compliance with section 38, and a physio treatment plan was awarded. A psychological treatment plan was denied because the claimant provided no evidence of ongoing psychological injury.
The claimant and insurer disagreed over the payment of seven disputed medical and rehabilitation benefits, including the cost of IV injections, the cost of an EEG assessment, the cost of a functional abilities evaluation and the cost of a dietician assessment. The insurer submitted that the disputed benefits were not reasonable and necessary and relied on the conclusions of the IE assessors. Adjudicator Makhamra concluded that six of the disputed medical and rehabilitation benefits were payable, preferring the evidence of the claimant’s treating providers to the evidence of the IE assessors. Adjudicator Makhamra dismissed the claimant’s claim for a functional abilities evaluation preferring the evidence of the IE assessor that the claimant was self-limiting on examination and therefore, concluded that a FAE would be of little benefit to the claimant.
The claimant sought payment for a TMJ assessments and oral orthotics. The insurer argued that the claimant’s dental impairments were not accident-related. The Adjudicator concluded that on either the “but for” test or the “material contribution” test the claimant’s dental impairments were not caused by the accident. In reaching her conclusion, the Adjudicator relied on the claimant’s clinical notes and records and the opinions of the IE assessors. These records revealed that the claimant’s pre-accident and post-accident TMJ symptoms were so similar that the Adjudicator was unable to conclude that the post-accident symptoms were caused by the accident. The Adjudicator dismissed the claimant’s application.
The claimant sought entitlement to removal from the MIG, IRBs, ACBs, medical benefits, and special award. He argued that he sustained a fractured sternum, a concussion, and major depressive disorder as a result of the accident. Despite an IE assessor concluding that the fractured sternum was related to the accident, the insurer concluded otherwise based on the related CT scan being performed a month after the accident in a foreign country. Adjudicator Gosio concluded that the claimant did suffer a fractured sternum, a concussion, and psychological impairments from the accident. He removed the claimant from the MIG and awarded some of the claimed medical benefits. He awarded IRBs based on the claimant being unable to perform his employment as a realtor primarily due to psychological issues. Surveillance of the claimant being physically functional did not persuade Adjudicator Gosio that the claimant was untruthful or that he was able to return to his employment. Adjudicator Gosio also awarded fifteen months of ACBs and held that the insurer had unreasonably withheld payment. Services were deemed incurred in accordance with section 3(8). Finally, Adjudicator Gosio issued a special award against the insurer in relation to ACBs due to the manner in which it denied ACBs and mislead the claimant on the IE physician’s opinion.
The claimant sought entitlement to one treatment plan for chiropractic services. The claimant was being treated outside of the MIG as a result of a psychological impairment. Adjudicator Fircot found that the claimant had not proven on a balance of probabilities that the proposed treatment was reasonable and necessary. The claimant’s claim was denied.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP