Category: Medical Benefits

Solanes v. Aviva General Insurance (20-001140)

The claimant sought entitlement to ACBs, and the cost of two assessments. Adjudicator Chakravarti denied entitlement to all claimed benefits. ACBs were stopped at the 104 week mark, so the claimant could not claim ACBs unless she sustained a catastrophic impairment. The claimant failed to provide the Tribunal with the disputed treatment plans, so the Tribunal could not determine whether the assessments were reasonable and necessary. Additionally, the clinical notes and records provided by the claimant did not support the need for an orthopaedic assessment or an in-home assessment.

Li v. Allstate Insurance (19-004738)

The claimant sought entitlement to IRBs, two treatment plans for physical and psychological therapy, and a special award. Vice Chair Boyce dismissed the claims. The claimant failed to provide sufficient information proving that she was employed at the time of the accident. The Record of Employment suggested that she quit her job a few days prior to the accident. The employer told the insurer the same information. The claimant disputed that this was accurate, but failed to provide an amended Record of Employment. Further, the claimant’s impairments were not sufficiently serious to meet the “substantial inability” test. The medical records showed only sporadic complaints to the family physician. The IE reports were accepted by Vice Chair Boyce, which opined that the claimant did not suffer from a psychological or orthopaedic injury. The claimed treatment plans were also denied due to the claimant’s failure to prove that the treatment was reasonable and necessary. The claimant had reported to her family doctor that she was “basically pain free” as of August 2018.

Green v. Intact Insurance Company (19-013031)

The claimant sought entitlement to $10,400 multidisciplinary reports addressing entitlement to post-104 week IRBs. Vice Chair McGee dismissed the claims, holding that the SABS did not provide entitlement to post-104 week IRBs assessments. Section 25 lists the types of examinations and assessments an insurer was required to fund. The section does not require payment of assessments addressing post-104 week IRBs.

Switzer v. Waterloo Insurance (19-011403)

The claimant disputed his entitlement to attendant care benefits, housekeeping expenses, and two chair lifts. He also disputed the weekly quantum of IRBs he was entitled to receive. The claimant also sought a special award. The insurer argued that the accident was not the cause of the claimant’s impairments, and that they all pre-existed the accident from six earlier motor vehicle accidents. The insurer also argued that the claimant made material misrepresentations in relation to his claim for housekeeping expenses. Adjudicator Lake found that the accident was a necessary cause that exacerbated the claimant’s pre-existing psychological and cognitive conditions, but did not cause the claimant any new physical impairments or exacerbate his previous physical conditions. Adjudicator Lake declined to award ACBs because the claimant failed to prove that any expenses were incurred. The claimant failed to call his alleged service provider to give evidence and could not prove that the service provider was a professional acting in the course of his employment or self-employment. Adjudicator Lake also wrote that she would have declined to award ACBs due to the claimant’s failure to prove the service actually provided to him. There were no time dockets, daily logs, job diaries, or any information about the dates and times services were performed. Regarding HK expenses, Adjudicator Lake held that the claimant failed to prove that he suffered a substantial inability to complete his home maintenance and housekeeping tasks as a result of the accident. Regarding IRBs, Adjudicator Lake held that the claimant was entitled to $711.15 per week in IRBs during 2018 and $1,000 per week from January 2019 onwards. The claimant was self-employed as a lawyer at the time of the accident, and was a partner at a law firm prior to that. The last full fiscal year worked by the claimant at the law firm was 2016. The claimant did not complete a fiscal year at either his own law firm or as a partner at a law firm in 2017. Adjudicator Lake rejected the insurer’s position that consideration of self-employment income was restricted to a business being operated at the time of the accident. The claimant continued to practice law after the accident, so the insurer was entitled to deduct post-accident earnings in accordance with the SABS. No evidence was provided of the claimant’s income from 2019 onwards. Adjudicator Lake declined to grant a special award, as the only benefit found payable was IRBs, and the interpretation of the SABS that led to the dispute was not excessive, imprudent, or stubborn. Finally, Adjudicator Lake rejected the insurer’s position that the claimant made material misrepresentations in relation to the claim for HK expenses. She agreed that the housekeeper’s testimony called into question evidence given by the claimant regarding creation of invoices, the discrepancy was not a “material fact” with respect to the application for HK expenses; the discrepancy related to the author of the invoices rather than the content.

Majeed v. Aviva General Insurance Company (20-004520)

The claimant sought entitlement to ACBs of $1,017 per month, occupational therapy services, and assistive devices. Adjudicator Mazerolle denied the claim for ACBs. First, he held that the claimant was not entitled to claim ACBs prior to submission of the Form 1. Second, the only invoices for services pre-dated submission of the Form 1. Third, the claimant led no evidence that he had incurred the services and made no argument why the services should be deemed incurred. Adjudicator Mazerolle awarded the two disputed medical benefits. He found that the occupational therapy services would assist the claimant with his cognitive changes, and that the assistive devices would assist in reducing the claimant’s pain. However, the insurer was not required to pay for any incurred amounts until the claimant submitted signed treatment plans.

M.N. v. Aviva General Insurance (19-001788)

The insurer raised a preliminary issue in respect to whether the claimant was involved in two accidents. Adjudicator McGee found that the claimant was involved in both an April 8, 2016 accident and an October 4, 2016 accident. The facts of this case are unusual. At the time of both accidents, the claimant was incarcerated at a provincial correctional system. On April 8, 2016, correctional authorities transferred the claimant, handcuffed and shackled, in a prisoner transfer van from the Ottawa-Carleton Detention Centre to the Central North Correctional Centre, an approximate 8 hour drive. On April 8, 2016, the claimant sat unrestrained with three folded blankets to use as cushioning. On October 4, 2016, the claimant was transferred from Toronto East Detention Centre to downtown Toronto for a court appearance. He was handcuffed and unrestrained by a seatbelt. The claimant claims that both of these transfers triggered back pain and exacerbated his pre-existing back pain. The claimant argued that the incident in question was the claimant being forced to ride in an awkward position. This was due to a combination of factors, including the hard material of seating, the absence of a safety restraint, and the inability of the claimant to reposition or stabilize himself. The respondent argued that these occurrences were not an accident, and that the claimant merely used the seats of the vehicles as they were intended to be used. Adjudicator McGee found in favour of the claimant, noting that the term “incident” in the SABS should be given a fair, largely and liberal interpretation that best ensures the attainment of its consumer protection objection. Adjudicator McGee dismissed the insurer’s argument that the claimant was using the seats in its ordinary use, noting that this was not ordinary as the claimant was shackled, could not move freely, and was unable to request stops or breaks.

F.C. v. Aviva General Insurance (19-003936)

The claimant disputed her MIG determination and her entitlement to medical benefits. In regard to the MIG, Adjudicator Moten found the claimant’s prior injury to her coccygeal region prevented maximal recovery if she were limited to the $3,500 minor injury limits. Adjudicator Moten also found there was compelling evidence in the claimant’s health practitioners’ medical records to support that her pre-existing injury prevented from reaching maximum recovery under the MIG even though none of the evidence explicitly stated that conclusion. In regard to the disputed treatment plans for chiropractic treatment, Adjudicator Moten determined the claimant had satisfied her onus the proposed treatment was reasonable and necessary and she was entitled to payment of those treatment plans along with interest. However, Adjudicator Moten found the claimant had not shown the treatment plan for a psychological assessment was reasonable and necessary.

B.K. v. Guarantee Company of North America (18-003505)

The claimant was deemed catastrophically impaired on the basis of his Glasgow Coma Scale. Issues arose between the parties concerning the claimant’s entitlement to rehabilitation benefits under the Schedule. The insurer denied payment and the claimant appealed to the LAT for payment of these benefits. Adjudicator Kowal concluded that the claimant was not entitled to payment in the amount of $22,200.00 for a camper trailer as he had not met the test under s. 16 of the Schedule for rehabilitation benefits. The claimant did not sufficiently demonstrate that the trailer was “reasonable and necessary” for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate his reintegration into his family, the rest of society or the labour market. Further, the claimant incurred the $22,000.00 expenditure before notifying the insurer and therefore nothing the insurer did induced the expenditure. The insurer did cite s. 38(2) to the claimant in its initial correspondence and the fact that it gave full consideration to the claimant’s OCF-18 when it was submitted did not negate its right to rely on s. 38(2).

M.F. v. Belair Insurance Company (18-003847)

The claimant submitted a request for reconsideration arising out of a decision which found that he was not entitled to medical benefits and post-104 week IRBs because the claimant’s psychological impairments were not a result of the accident. The claimant’s reconsideration request was made on the basis that there was fresh evidence (a new IE report from the insurer) that was not before the Tribunal when rendering its decision. The IE report found that the claimant’s psychological impairments flowed from his accident-related chronic pain. Adjudicator Grieves accepted that the new report was not available at the hearing, could not have been obtain previously by the claimant given that the Tribunal’s decision was rendered three months prior to the claimant receiving the report, and that the evidence would likely have affected the result at the hearing. As such, she granted the request for reconsideration in part, finding that the claimant was entitled to post-104 week IRBs and some of the disputed medical benefits.

Almayahi v. The Co-Operators General Insurance Company (20-001166)

The claimant sought entitlement to two chiropractic treatment plans and a special award. Adjudicator Grant found that the claimant was entitled to payment for the costs of both treatment plans on the basis that the medical documentation supported his reports of consistent and ongoing pain since the accident, and that the goals of pain reduction, increased range of motion, and return to activities of normal living were reasonable and necessary. Adjudicator Grant further found that the claimant was entitled to a special award in the amount of $470.74, representing 10 percent of the total amount payable on the treatment plans. He determined that the insurer unreasonably withheld treatment by failing to acknowledge or consider new medical records from the claimant’s family physician and chronic pain treatment providers which challenged the conclusions of its IE assessor.