Category: Medical Benefits

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.

V.K. v. Allstate Insurance Company (16-004273)

The claimant sought entitlement to attendant care benefits and medical benefits for vision-related expenses and transportation expenses. Adjudicator Truong held that the claimant was not entitled to any of the benefits or expenses at issue. The claimant’s mother provided her with attendant care; however on the limited and unreliable evidence before the adjudicator, the claimant did not meet her onus of proving that the mother sustained economic loss. Therefore, the claim for attendant care benefits did not meet the definition of “incurred” under to the SABS. The claims for prescription eyewear and an eye exam were not reasonable and necessary, and the transportation expenses submitted were not authorized transportation expenses within the meaning of the FSCO Superintendent’s Guideline No. 04/16. The claimant was not entitled to laser eye treatment expenses because no treatment plan was submitted.

Applicant v. Aviva General (17-004847)

The claimant sought entitlement to various medical benefits, the costs of a chronic pain assessment, treatment outside of the MIG, and interest. Upon weighing the medical evidence, Adjudicator Boyce determined that the claimant’s chronic pain warranted treatment outside of the MIG. Moreover, Adjudicator Boyce found the requested chronic pain assessment was reasonable and necessary. Adjudicator Boyce further held that one of the requested benefits was partially reasonable and necessary, but denied another treatment plan for being duplicative. As the claimant was found to be entitled to some of the benefits sought, he was also entitled to interest.

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.

Applicant v. Aviva Insurance (17-006160)

The claimant sought entitlement to various medical benefits, a special award, and interest. The claimant raised a procedural issue, and asked the Tribunal to disregard attachments appended to the insurer’s written submissions, as they had not been transmitted properly via facsimile to the claimant; the attachments had been provided via mail several days later. Adjudicator Mazerolle denied the claimant’s request, as the potential prejudice to the insurer in refusing to consider the documents outweighed the effect of any delay in the claimant receiving the documents. Upon reviewing the medical documentation available, Adjudicator Mazerolle concluded that the claimant was entitled to the benefits in dispute, as they were reasonable and necessary, and to interest. However, Adjudicator Mazerolle held that the claimant was not entitled to a special award.