Category: Medical Benefits

Luluquisin v Aviva Insurance Company of Canada (20-010381)

The claimant (who was catastrophically impaired) sought entitlement to attendant care benefits at the rate of $6,000 per month as well as various medical benefits. Adjudicator Farlam accepted the insurer’s monthly attendant care rate ($1,029.42 per month) as the claimant failed to establish with medical evidence that $6,000 per month in attendant care services was reasonable and necessary, had failed to attend an IE, and the treatment provider had failed to respond to a section 46 request for additional information. Adjudicator Farlam found that the claimant was entitled to previously partially approved amounts for case management services and chiropractic treatment (if not already paid), but not the denied remaining balances. She further found that the remaining disputed benefits were not payable, given the lack of evidence to support that the proposed services were reasonable and necessary.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.

S.V. v. Wawanesa Insurance (18-009702 and 20-001009)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment, IRBs, ACBs, and various medical benefits. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment as a result of the accident. While the claimant did sustain a psychological impairment in the accident, he sustained only Class 2 Mild Impairments or Class 3 Moderate Impairments due to the accident. The claimant maintained his social contacts, and he communicated with assessors in an effective and pleasant manner; there was no evidence linking the claimant’s psychological impairments with his ability to perform activities of daily living; and the claimant remained independent with sustaining an ordinary routine without supervision, and used his judgment to make simple decisions. Adjudicator Hines was critical of the claimant’s experts, as they did not review the claimant’s pre-accident medical records which showed significant pre-accident health issues, and relied mainly on the claimant’s self-reporting. The claim was IRBs was denied, as the claimant failed to prove how his psychological impairments affected his ability to work. He also failed to submit financial records in support of a loss of income. The claim for ACBs was denied as the claimant’s Form 1 assessor relied upon the claimant’s self-reporting and she did not review the pre-accident medical records, nor did she understand the extent of the claimant’s pre-accident health issues. The medical benefits were denied because the claimant failed to prove the connection between the proposed treatment and the accident.

Joseph v. ACE INA Insurance (19-010124)

The claimant was involved in a motor vehicle accident in 2018. He was later determined to be catastrophically impaired as a result of the accident. The claimant applied to the LAT seeking entitlement to numerous medical and rehabilitation benefits, including the cost of cancellation fees, home modifications totaling $262,619.50, the cost of a trip to Haiti, and provider travel time for a psychologist. The majority of the treatment plans in dispute had been partially approved. Both parties claimed costs of the hearing in relation to allegations of conduct resulting in a delayed and unnecessarily lengthy hearing. The insurer also sought judgment in relation to unspecified costs previously awarded in relation to two motions. Adjudicator Grieves found that the claimant was entitled to partial payment of the proposed cost of a trip to Haiti for therapeutic purposes (the claimant was from Haiti; the insurer had previously approved two trips and denied the third proposed trip; and in Haiti, the claimant reportedly participated in “family cultural practices and received alternative therapies.”) The claimant was not entitled to the remaining issues in dispute. The travel time of the psychologist was considered not reasonable and necessary because the claimant had access to approved transportation expenses and on several occasions had indicated a preference for receiving treatment at the therapist’s office. The insurer had previously approved home modifications in the amount of $30,670.75. Adjudicator Grieves found that the disputed amount was not payable because the modifications proposed in the claimant’s report were largely to address speculative future needs, not to address the claimant’s current disability. Neither party was awarded costs of the hearing. Adjudicator Grieves held that the standard for ordering costs was very high and found that both parties contributed to the delay and inefficiency of the hearing. The insurer was awarded $350 in costs in relation to two prior motions. Costs were awarded because the claimant’s “conduct interfered with the Tribunal’s ability to conduct a fair, efficient and effective process, and resulted in wasted resources and prejudice to the respondent.” In addition, Adjudicator Grieves found that the claimant’s “misconduct was serious in that it resulted in delay of the start of the hearing and wasted time for the parties in preparing and responding to a motion that the applicant succeeded on and then essentially requested to ‘undo’.”

Pereira v. Aviva (2022 ONSC 688)

The claimant appealed the Tribunal’s decision that he was not entitled to certain medical benefits because services were incurred prior to submission of a treatment plan, and that he could not add new claims for NEBs and a special award in his written submissions. The Divisional Court dismissed the appeal in its entirety. First, the Court held that the LAT was entitled to govern its own procedure, and there was no issue of law raised in the Tribunal’s refusal to allow additional issues in the original hearing. The claimant was free to commence a new LAT application for the new issues. Second, the Tribunal did not err in its application of section 38(2) which required the submission of a treatment plan prior to incurring a medical benefit. Further, the application of section 38(2) to the claim was one of mixed fact and law, which the Court did not have jurisdiction to interfere with.

J.D. v. Intact Insurance Company (19-002767)

The claimant was involved in a motor vehicle accident in 2018. As a result of the accident, his leg was amputated. His injuries were deemed catastrophic by the insurer. The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $6,000 per month, housekeeping expenses, and numerous medical and rehabilitation benefits (including the cost of a home modification assessment in the amount of $8,858.78, the cost of alternative accessible housing in the amount of $1,126,560, and the cost of alternative short-term housing in the amount of $19,200). The proposed attendant care services included 24-hour supervision, which was recommended by an OT who opined that due to the acute nature of the applicant’s injuries he was incapable of responding to an emergency and thus required care of 24 hours per day. Adjudicator Manigat found that the claimant was entitled to attendant care benefits in the amount of $3,000.00 per month. Adjudicator Manigat was not persuaded that the claimant required 24-hour care, as he had been able to stay at a house alone and travel out of the country twice without attendant care services or supervision. Adjudicator Manigat found that the claimant required assistance with some but not all housekeeping tasks and was entitled to $50 per week for housekeeping benefits, rather than $100 per week. The claimant was found entitled to the majority of the disputed medical and rehabilitation benefits, including provider mileage costs, parking costs, case management services, medical marijuana, an iPhone, and $8,858.78 for the Adapt-Able Design housing assessment. The claimant was not entitled to social work services that duplicated approved psychotherapy services and was not entitled to further psychological services as he failed to attend previously approved treatment sessions. The claimant was not entitled to the cost of alternative accessible housing in the amount of $1,126,560. Adjudicator Manigat found that while the claimant did require alternative housing to meet his disability needs, the report recommending alternative accessible housing failed to take into consideration a home that the claimant already co-owned with his siblings, which was a “potential, legitimate option.” The claimant was found entitled to a treatment plan proposing alternative short-term housing in the amount of $19,200.

Opoku v. Jevco Insurance (20-003302)

The preliminary issue in this matter was whether the insurer’s denials of the disputed treatment plans complied with s. 38(8) of the Schedule. Adjudicator Kaur found that the insurer’s denials of the disputed treatment plans did not comply with s. 38(8) because they did not reference the claimant’s injuries or the medical documentation that was in the insurer’s possession at the time of the denial. Although the insurer did not receive all of the clinical notes and records, a reference could have been made to the documents that were in the insurer’s possession. As a result, the insurer was required to pay for all medical benefits on four treatment plans relating to the period prior to a proper denial was issued. On the merits of the claim, Adjudicator Kaur found that the MIG applied to the claimant’s injuries and that he was not entitled to IRBs.

Morris v. Aviva General Insurance (19-002717)

The insurer filed a request for reconsideration after the Tribunal previously decided that, among other things, the claimant was entitled to two OCF-18s, plus interest as a result of the insurer’s failure to comply with section 38 of the SABS. The insurer argued that the Tribunal had referred to case law not submitted by either party, denied the insurer the right to issue a proper denial notice, and misapplied section 38(11). On reconsideration, Adjudicator Lake noted that, while case law that was not submitted by either party was cited (MFZ v. Aviva), it was in terms of comparison towards the purpose of statutory interpretation. In relation to the allegation that the previous decision denied the insurer the opportunity to issue compliant denial notices, Adjudicator Lake noted that the insurer’s position fell afoul of the SABS consumer protection mandate and that it was unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would strip the Tribunal of its jurisdiction to resolve accident benefit matters. Lastly, Adjudicator Lake addressed the insurer’s position that she erred in misapplying section 38. Adjudicator Lake noted that in her previous decision she was silent on whether the OCF-18s were required to be incurred prior to payment. While her silence on the issue did not amount to an error of law, Adjudicator Lake conceded that she should have been clearer regarding the interpretation of section 38 in that the OCF-18s were to be paid within 30 days of an invoice being submitted. Adjudicator Lake granted the request for reconsideration in part, finding that the claimant was entitled to the OCF-18s plus interest following submission of an invoice for services rendered.

Aviva Insurance Company of Canada v. Suarez (2021 ONSC 6200)

The insurer appealed the Tribunal’s decision awarding four treatment plans for chiropractic therapy, two as reasonable and necessary, and two others due to non-compliant section 38 notices. The insurer argued that because the claimant had not received the treatment, she was not permitted to apply to the LAT. The Court rejected the insurer’s position, holding that the claimant did not have to receive treatment prior to disputing her entitlement. The Court agreed, however, that payment for the treatment plans was not required until the claimant incurred the treatment. The Court also preserved the insurer’s ability to dispute payment upon receipt of invoices and incurred expenses, and held that interest was only payable once the treatment was incurred.

P.M. v. Aviva General Insurance (19-002717)

The insurer requested reconsideration of a decision that awarded the claimant two treatment plans as a result of the insurer’s non-compliance with sections 38(8) and 38(9). The insurer submitted that the Adjudicator erred in law by vitiating its right to “cure” its deficient notices regarding the treatment plans submitted under section 38(11) even after the Tribunal rendered a decision. The insurer argued that its liability for payment of goods and services under a treatment plan as a result of its failure to comply with sections 38(8) and 38(9) ends upon delivery of a compliant denial notice pursuant to section 38(11), and not as a result of a decision of the Tribunal. Adjudicator Lake disagreed and stated that it was well settled that the Schedule must be read generously with any limitations construed narrowly. In this context, Adjudicator Lake considered it unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator Lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would also strip the Tribunal of its jurisdiction to resolve accident benefit matters. As a result, Adjudicator Lake found no error of law in finding that the insurer’s opportunity to cure its defective denial notices ended upon the issuance of the decision.