Category: Medical Benefits

Applicant v. Coachman Insurance Company (16-003306)

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.

Applicant v. Aviva Insurance Canada (17-004001)

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.

Applicant v. Aviva Insurance Canada (17-006480)

The claimant sought entitlement to an OCF-18 proposing psychological treatment. Adjudicator Boyce found the proposed psychological treatment to be reasonable and necessary because he found the the claimant’s self-reporting of cycling-specific fear to be consistent and compelling, and he preferred the s. 25 psychology report to the s. 44 psychology report. Adjudicator Boyce rejected the interpretation of incurred expenses in F.S v. Aviva Insurance Canada, holding that there is no indication in s. 3(7)(e)(i) or (ii) of the SABS that costs must be incurred at the time of the LAT application for a treatment plan to be found payable.

S.M. v. Aviva Insurance Canada (17-003731)

The claimant sought entitlement to NEBs and medical benefits. Adjudicator Grant denied all of the claims. He concluded that the claimant’s evidence lacked specificity, and that her medical assessor’s opinions were not credible. He preferred the conclusions of the IE assessors, including the claimant’s self-reporting to the IE assessors that she was improving and returned to her own self-care.

M.C. v. Aviva Insurance Company of Canada (17-002614)

The claimant sought entitlement to treatment outside of the MIG, attendant care benefits, six treatment plans, and a special award. Adjudicator Truong found that the claimant was entitled to treatment outside of the MIG, the cost of an attendant care assessment and assistive devices, interest, and a special award. Adjudicator Truong found that the claimant was not entitled to attendant care or the cost of the remaining treatment plans. She noted that the claimant had not incurred any attendant care services following the accident. Adjudicator Truong held that the MIG did not apply to the applicant’s impairments pursuant to section 38(11) because the insurer had failed to respond within 10 days. Adjudicator Truong found that the attendant care assessment was payable for the same reason. The treatment plan had been denied on HCAI, but no denial letter was sent by the insurer. Adjudicator Truong also held that the applicant was entitled to the special award largely due to the insurer’s continued denial of the cost of the attendant care assessment despite its failure to provide a denial letter. Adjudicator Truong stated that once the insurer became aware it had breached section 38(8) with respect to providing notice, it should have immediately provided notice and/or paid the benefit.

D.C. v. Aviva Insurance Company (17-002921)

The claimant sought entitlement to NEBs, medical benefits, and the cost of various examinations. The insurer raised s. 55 and s. 33 defences. Pursuant to s. 55, Adjudicator Ferguson held that the claimant was barred from commencing part of the application as a result of his failure to attend IE assessments. He was only barred from pursuing the issues in dispute that were relevant to the IE assessments. Adjudicator Ferguson held that the claimant was entitled to NEBs for an initial period based on the insufficiency of the insurer’s  s. 35(1) notice; however, the insurer was entitled to withhold payment of NEBs during the period in which the claimant was not in compliance with s. 33 requests.

Applicant v. Certas Direct (17-002792)

The claimant sought entitlement to IRBs, one treatment plan, and interest. Adjudicator Msosa held that the medical evidence did not indicate the claimant had suffered a substantial inability to perform his employment as a security guard and was therefore not entitled to IRBs. The claimant argued that the treatment plan was payable as the insurer had failed to provide ten days notice, as required by section 38(11). Adjudicator Msosa found that the insurer had responded within the timelines required by the SABS, and further concluded that the claimant was not entitled to the medical benefit sought as it was not reasonable and necessary.

Applicant v. Certas Direct Insurance Company (16-003108)

The claimant sought entitlement to NEBs, ACBs, and a chronic pain assessment. The insurer argued that the claimant was barred from seeking the chronic pain assessment for failure to attend an IE assessment. Adjudicator Anwar found that the claimant was barred from pursuing the cost of the chronic pain assessment due to her nonattendance at a s. 44 assessment and because the LAT application was filed prior to the insurer providing a response to the proposed treatment. The adjudicator found that the claimant failed to prove that she sustained a complete inability to carry on a normal life as a result of the accident. In coming to this conclusion, Adjudicator Anwar noted that he found the records of the claimant’s family doctor more persuasive that the IEs and s. 25 medicolegal reports, the evidence of the claimant and her son, and the report of the family doctor prepared for the hearing.  The claimant was also not to be entitled to ACBs.

Applicant v. Aviva Insurance Company (17-002638)

The claimant sought entitlement to ongoing IRBs, various medical benefits outside of the MIG, and a special award. The claimant submitted that psychological impairments and chronic pain took him outside of the MIG. Adjudicator Boyce found that the claimant’s impairments were predominantly minor injuries, holding that in the absence of evidence of a full or partial tear, the claimant’s shoulder tendonitis was within the MIG. The claimant was found not to have a psychological diagnosis. Adjudicator Boyce held that the claimant had not proven that he had missed work as a result of the accident and was therefore not entitled to IRBs. A special award was denied.

Applicant v. Aviva Insurance Company (17-003600)

The claimant sought entitlement to medical benefits outside of the MIG and a special award. Adjudicator Victor found that the claimant was outside of the MIG because of the extent of her psychological symptoms, and she was entitled to the cost of a psychological assessment, plus interest. The claimant was not found entitled to a special award.

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