Category: Medical Benefits

J.B. v Allstate Canada (17-005951)

The claimant sought medical benefits for driver reintegration sessions and psychotherapy sessions, as well as travel expenses. Adjudicator Maedel held that the claimant failed to establish that the benefits sought were reasonable and necessary. Allstate had partially approved the OCF-18 in dispute for eight one-hour weekly driver reintegration sessions and six one-hour psychotherapy sessions, as recommended by an IE psychiatrist. The claimant sought benefits for two-hour weekly psychotherapy sessions and an increased hourly rate for a driving instructor. The adjudicator held that the claimant did not provide any evidence to demonstrate why two-hour psychotherapy sessions and an increased hourly rate for the driving instructor were reasonable and necessary. The adjudicator also held that the claimant did not provide evidence to establish that the transportation costs were reasonable and necessary, did not establish a link between his license suspension and the injuries sustained in the accident, and did not provide particulars of the travel expenses as per the Transportation Guideline.

Applicant v. Aviva Insurance Company (17-005081)

The claimant sought entitlement to three treatment plans, and interest on overdue payments.  The insurer brought a preliminary issue concerning whether the applicant was precluded from submitting evidence regarding the benefits in dispute; more specifically, the claimant had failed to submit two of the treatment plans to the Tribunal. Adjudicator Go determined that, it was in the interests of fairness to admit the treatment plans despite their late filing. Adjudicator Go further held that the claimant was not entitled to any of the medical benefits sought, or to interest.

Applicant v. Certas Home and Auto Insurance Company (17-005145)

The claimant disputed his MIG status; entitlement to a medical benefit for physiotherapy treatment; and interest on overdue payment of benefits. Adjudicator Norris rejected that the claimant suffered a psychological injury as a result of the accident, finding that the evidence of psychological injury relied upon by the claimant was inconsistent with the entire rest of the claimant’s medical record. Further, the claimant failed to adduce evidence sufficient to establish that a pre-existing finger fracture prohibited him from recovering within the MIG limit. Adjudicator Norris held that the claimant suffered a minor injury within the meaning of the Schedule and is subject to the MIG funding limit. Entitlement to the medical benefit in dispute was rejected as a result.

Applicant v. Aviva Insurance Canada (17-003575)

The claimant sought entitlement to a neurological assessment and driving evaluation assessment. The adjudicator dismissed the claim for a neurological assessment on the basis that the claimant did not submit any evidence as to why the proposed assessment was reasonable and necessary. The adjudicator also noted that the claimant did not submit any evidence to refute the findings of the IE neurologist, who concluded that the proposed assessment was not reasonable and necessary. With respect to the driving evaluation, the adjudicator concluded that the proposed assessment was partially payable. The adjudicator concluded that the proposed mental health counselling as part of the driving evaluation was duplicative, and therefore not payable. The adjudicator also concluded that the treatment provider’s mileage was not payable as it is not an expense payable under the Guidelines.

F.A. v Aviva Insurance Company (17-003364)

The applicant sought various medical benefits, as well as an award pursuant to section 10 of O. Reg 664. Adjudicator Truong held that the applicant was entitled to the balance of the treatment plan for a total body assessment and documentation, but was not entitled to medical benefits for physiotherapy. The adjudicator held that the diagnoses listed in the physiotherapy treatment plan were not accident related. The adjudicator also held that the applicant was entitled to an award in the amount of 50 percent of the amount payable plus interest due to: Aviva’s handling of the first treatment plan; Aviva specifically refusing to pay the fees for a progress report it approved; and not providing an updated notice with medical reasons for denying the total body assessment. Aviva had partially approved a treatment plan for documentation and two physiotherapy sessions, and further costs for a progress report as long as a copy would be provided to Aviva. The progress report was provided to Aviva, however, Aviva argued that the report was completed in contemplation of the second treatment plan in dispute. Adjudicator Truong held that it logically follows that a progress report would contemplate further treatment, and the approval letter was ambiguous about what a progress report should include. The adjudicator resolved the ambiguity in favour of the applicant. With respect to the total body assessment, Aviva argued that it was for the purpose of completing the treatment plan, and was subject to the $200 limit per the FSCO Guideline for the completion of an OCF-18. Adjudicator Truong held that no medical reasons were given for denying the total body assessment, thus Aviva was in non-compliance with subsection 38(8) and the assessment was payable pursuant to subsection 38(11).

M.B. v. Travelers (17-003671)

The claimant sought removal from the MIG and entitlement to psychological and physical assessments and treatment. The claimant had a pre-accident medical history relevant for depression and anxiety stemming from infertility issues. Adjudicator Hines concluded that based on the medical records and the evidence of the s. 44 and s. 25 assessors, the claimant’s pre-existing depression and anxiety did not prevent her from reaching maximum medical recovery under the MIG. Adjudicator Hines noted that the claimant had not demonstrated that the accident worsened and/or exacerbated her depression and anxiety. Adjudicator Hines preferred the evidence of the IE assessor to that of Dr. Shaul, s. 25 assessor, as Dr. Shaul’s medical reports contained inconsistencies and because she found Dr. Shaul’s reports unreliable, as Dr. Shaul never actually met the claimant. Adjudicator Hines concluded that the claimant’s injuries fell within the MIG, the disputed psychological assessment and treatment was not payable, and the disputed physical treatment was payable only up to the amounts remaining in the MIG limits.

Applicant v. CUMIS General Insurance (17-002592)

The claimant sustained serious injuries and required 24 hour care. She moved homes to receive care from her father. The claimant and insurer disputed how much money the claimant was entitled to for the cost of rent (as a rehabilitation benefit). The claimant argued that she was entitled to the full cost. The insurer argued that she was entitled to the current cost less the estimated cost of the housing she would have resided in but for the accident. Adjudicator Ferguson held that the claimant was entitled to the lesser amount for rent. He calculated the amount as the rent for the current house less the average monthly rent for a two bedroom apartment plus 50 percent of monthly utilities. He reasoned that the claimant’s pre-accident living situation should be recognized, and that to pay for the full rent would amount to a windfall.

Applicant v. Aviva Insurance Canada (17-004325)

The claimant sought a declaration that her injuries were not predominantly minor injuries to be treated within the MIG, as well as entitlement to medical benefits for treatment. Adjudicator Watt held that the claimant was not entitled to any of the relief sought. The applicant failed to adduce any medical evidence to indicate that her injuries fell outside of the MIG. The claimant also failed to adduce evidence to address the stated goals of the treatment plans at issue and how the plans would achieve those goals. As such, there was no evidence to show that the treatment plans were reasonable and necessary.

T.H. v. The Personal Insurance Company (17-000121)

The insurer sought to rely on section 38(2) of the Schedule as a defence, asserting that the claimant incurred the expense of an assessment in dispute prior to submitting the OCF-18 to the insurer for approval. The claimant brought a motion for a declaration precluding the insurer from relying on the defence for a number of reasons: the insurer accepted the OCF-18 and scheduled IEs to assess its reasonableness and necessity; section 38 requires “all other reasons” to be provided in the denial; the denial of the OCF-18 was only based on the MIG; the issue was not raised by the insurer at FSCO before the matter was transferred to the LAT, in its response, at the case conference, or at any other time prior to written submissions being filed. Adjudicator Daoud denied the claimant’s motion, finding that a defence may be raised at any time within the proceeding as long as there is no prejudice caused to the claimant and the claimant has the opportunity to respond to it.

Applicant v. Aviva Insurance Canada (17-003724)

The claimant sought removal from the MIG and entitlement to psychological treatment. Adjudicator Grant concluded that the insurer failed to respond to the treatment plan within 10 days. Even though the treatment plan was denied on HCAI, no letter with the medical and other reasons for the denial was sent to the claimant until two months later. The insurer was therefore prohibited from relying upon the MIG. However, Adjudicator Grant held that the claimant failed to prove that the proposed psychological treatment was reasonable and necessary.

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