Category: Medical Benefits

J.R. v. Certas Home and Auto Insurance Company (16-003921)

The claimant sought entitlement to a number of medical benefits. The insurer denied the treatment plans based on IE reports and the LAT agreed with the denials. On reconsideration, however, Executive Chair Linda Lamoureux determined that the Tribunal arrived at the determination in a manner that was procedurally unfair to the claimant. At the Tribunal level, the claimant failed to submit the disputed treatment plans as evidence. Executive Chair Lamoureux determined that the Tribunal deciding in the absence of these documents, without asking the claimant’s counsel for the materials was a breach of procedural fairness and remitted the matter back to the Tribunal for a new determination.

N.C. v. Aviva Insurance Canada (17-004085)

The claimant sought entitlement to one medical treatment plan. Adjudicator Anita Goela, on review of the medical evidence, determined that the treatment plan was not reasonable and necessary. The matter was dismissed.

Applicant v. RSA Insurance Company (17-000502)

The claimant sought pre- and post-104 IRBs and entitlement to various medical benefits, as well as the cost of a completed OCF-3. Adjudicator Truong found the claimant to be an unreliable witness at the oral hearing, and he gave less weight to the s. 25 psychology opinion as the claimant’s unreliable self-reporting was the entire basis for the s. 25 report. Adjudicator Truong found that the claimant was not entitled to any of the benefits in dispute. The cost of the OCF-3 was found not payable as it was not requested by the insurer and it was not required under ss. 21, 36, 37 of the SABS.

Applicant v. Aviva Insurance Canada (17-001414)

The claimant sought entitlement to NEBs, treatment outside the MIG and entitlement to seven treatment plans. Adjudicator Watt dismissed the claimant’s claim for NEBs and concluded that the claimant’s injuries fell within the MIG. As the claimant’s injuries were found within the MIG, Adjudicator Watt found that the disputed treatment plans were not payable. With respect to the claim for NEBs, Adjudicator Watt relied on the surveillance report, the claimant’s testimony and the medical reports filed to conclude that she did not meet the NEBs disability test. With respect to the MIG, Adjudicator Watt concluded that the claimant failed to submit any evidence that she had a pre-existing medical condition to prevent her from reaching maximum recovery under the MIG and concluded that her injuries fell within the MIG definition.

Applicant v. Aviva Insurance Canada (16-004616)

The claimant sought entitlement to medical benefits for physiotherapy, chiropractic, and psychological treatment; the cost of an orthopedic assessment; a special award; and interest on overdue payments. Adjudicator Anwar held that the claimant was entitled to all of the medical benefits for treatment in dispute and interest thereon, but denied entitlement to the assessment and special award. The claimant was elderly with a pre-existing medical history remarkable for diabetes II and two lung cancer surgeries. The medical record supported that the treatment plans in dispute were reasonable and necessary. The OCF-3 was redundant and unnecessary as it largely repeated the content of two previously submitted OCF-3s.

P.S. v. Aviva Insurance Canada (17-003200)

The claimant sought entitlement to IRBs and the cost of an orthopaedic assessment. Adjudicator Watt rejected both claims. He preferred the evidence of the IE assessors, who concluded that the claimant suffered soft tissue injuries and was able to return to his pre-accident employment. The family physician made no recommendations regarding avoiding work or referrals to specialists, and the treating chiropractor suggested that the claimant could return to work. The evidence also showed that the claimant had started a new job the summer after the accident. The disputed orthopaedic assessment was not awarded because the claimant did not submit evidence regarding the stated goals of the assessment or show why it was reasonable and necessary.

Applicant v. Certas Direct Insurance Company (17-001627)

The claimant sought entitlement to 15 treatment plans, non-earner and attendant care benefits. The insurer paid the non-earner and attendant care benefits for two years, before stopping both with IE reports. The insurer, in its written submissions, reversed its position on medical benefits, and ultimately approved the disputed treatment plans. However, Adjudicator Susan Sapin determined the withholding of the treatment amounted to a special award and awarded five percent of the disputed quantum, plus special award interest. On review of the medical documentation, as well as an analysis of the claimant’s pre- and post-MVA lifestyle, along with finding favour in the claimant’s subjective reports, it was held that the claimant suffered a complete inability to carry on a normal life and was therefore entitled to ongoing NEBs. As it pertained to the claim for attendant care benefits, Adjudicator Sapin determined that the claimant was entitled to a reduced Form 1 quantum, as the claimant failed to demonstrate proof of incurred expense necessary to claim the full amount. Although the insurer sought to quash the claimant’s ongoing attendant care benefits as premature, Adjudicator Sapin held that the claimant needed to dispute the denial of attendant care within the 104 week period, or else forfeit the claim beyond the 104 week due to a possible limitations deadline. On review, it was determined the claimant was entitled to an increased quantum beyond the 104 week cut-off; however, the claimant would first need to apply for, and be designated, catastrophically impaired. Interest on all payable benefits was also awarded.

Applicant v. Aviva General Insurance (17-003539)

The claimant sought removal from the MIG and three medical benefits. Adjudicator Norris held that the claimant’s partial rotator cuff tear was an injury that fell within the MIG, and that the claimant’s pre-accident reports of back pain did not constitute pre-existing injuries that would prevent recovery under the MIG. He also concluded that the claimant had failed to prove that he suffered from chronic pain syndrome or psychological impairments as a result of the accident. All claims were dismissed.

G.A.E. v. Aviva Insurance Canada (17-000317)

The claimant sought entitlement to a number of medical benefits. In addition to a MIG position, the insurer asserted that the claimant was barred from bringing a claim as notice to claim accident benefits was not provided within seven days (or reasonably thereafter) of the MVA, pursuant to sections 32 and 55. Adjudicator S.F. Mather reviewed the circumstances leading up to the claimant providing an application for accident benefits and determined that the claimant gave adequate notice to the insurer “as soon as practicable in the circumstance.” The claims were heard on the merits, and Adjudicator Mather determined that the Notice letters of the insurer were insufficient on several grounds. Accordingly, the insurer was barred from taking a MIG position. Each treatment plan was reviewed on the merits and half, mostly dealing with physical therapy, were considered reasonable and necessary. Those treatment plans were found payable, while the remaining claims were dismissed as either being not reasonable or a duplication.

Applicant v. Co-operators General Insurance Company (16-003821)

The claimant sought removal from the MIG and entitlement to four medical benefits. Adjudicator Makhamra accepted that the claimant suffered from a compression fracture caused by the accident, and from psychological impairments; the claimant was removed from the MIG. The adjudicator awarded all of the claimed medical benefits, as being reasonable and necessary.