Category: Medical Benefits

Butler v. Allstate Insurance (19-013444)

The claimant applied to the LAT disputing entitlement to attendant care benefits and medical benefits. The dispute proceeded by written hearing. Adjudicator Lake held that the claimant was not entitled to ACBs for the three periods claimed. For the first period, Adjudicator Lake dismissed the claim as the claimant sought benefits prior to submission of a Form 1, which was not permitted per s. 42. For the second period, Adjudicator Lake dismissed the claim because, while Allstate approved ACBs at the rate of $3,000 per month, the claimant did not provide any evidence that his son and attendant care provider sustained an economic loss nor that the claimant incurred the expenses as the claimant did not submit attendant care invoices. Adjudicator Lake did not find there was any evidence that Allstate withheld ACBs and therefore, she declined to deem the expenses incurred. As for the third period, Allstate reduced the claimant’s ACBs to $448.49 per month. Adjudicator Lake held that even if she accepted the claimant’s higher ACB rate, the claimant again failed to produce evidence that ACBs were incurred and that his son suffered an economic loss. Adjudicator Lake also dismissed the claimant for “planning, service” under the treatment plans, as this was not payable per the FSCO Professional Services Guideline.

Viran v. Aviva General Insurance Company (19-008488)

The claimant sought entitlement to physical treatment and various assessments, as well as a special award. Adjudicator Grant determined that the claimant was entitled to the disputed physical treatment plan, finding that the claimant’s pre and post-accident visit history with her family doctor was indicative of significant and ongoing accident-related pain complaints and noting that pain relief, even as the lone goal of treatment, was a legitimate and sometimes reasonable and necessary goal. He further found that chronic pain assessment payable in light of the insurer’s non-compliance with section 38(8). The insurer failed to respond to the treatment plan, even at the time of the hearing, and Adjudicator Grant advised that the door was now closed to the option of curing the defective notice. Adjudicator Grant also granted a special award in the amount of $300.00, finding that the insurer failed to meet its obligation to continue to adjust its file as new medical evidence became available that clearly contradicted its IE assessor’s finding and was also in non-compliance with section 38 of the Schedule.

P.W. v. Aviva Insurance Canada (18-000854)

In an April 2020 decision, the Tribunal found that the claimant was entitled to an attendant care assessment based on an argument that was not raised by either party. The insurer’s request for reconsideration was granted, and the issue was re-heard. Adjudicator Gosio found that the attendant care assessment at issue met the requirements of section 25(1)4 of the SABS, which requires the insurer to pay for an attendant care assessment if it is completed by an occupational therapist or registered nurse, the fee charged was reasonable, and the fee was incurred. As such, he concluded that the claimant was entitled to the attendant care assessment.

Dhanji v. Aviva Insurance Company of Canada (19-010138)

The claimant disputed his entitlement to denied dental services and the remaining balance of a partially approved psychological treatment plan. Adjudicator Lake found that the claimant was not entitled to the proposed dental services or to the unapproved portion of psychological treatment. With respect to the dental services, she concluded that the claimant had not proven, on a balance of probabilities, that his tooth issue arose as a result of the accident. The claimant’s treating dental surgeon did not opine on or conclude that the claimant’s tooth issue was caused by the accident. Rather, he only stated that this was what was reported to him by the claimant. The unapproved portion of the proposed psychological treatment related to the treating psychotherapist’s hourly rate. The treatment plan sought funding for psychological counseling sessions with a regulated psychotherapist at a rate of $149.61 per hour. The insurer advised that fees could be billed for treatment by a psychotherapist at $58.19 per hour, but agreed in good faith to fund treatment at a rate of $100.00 per hour. Adjudicator Lake found that the claimant was not entitled to the unapproved portion of the psychological treatment plan, as he led no evidence that the psychotherapist specialized in CBT, nor did the treatment plan propose to provide any CBT treatment.

Biro v. Unica Insurance Inc. (20-003720)

The claimant was involved in an accident in 2007. In 2017, FSCO issued a decision granting the applicant ACBs and certain medical benefits. FSCO determined the claimant was not catastrophically impaired and denied a claim for NEBs. The claimant appealed the FSCO decision. The appeal was denied. In April 2020, the self-represented claimant applied to the LAT claiming $6 million for chiropractic services arising from the accident. Adjudicator McGee found that the LAT did not have jurisdiction to hear the application because the claimant had not filed a treatment plan as required under s. 38, and the insurer did not have the opportunity to approve or deny the benefit claimed in the LAT application. Adjudicator McGee found that without a denial of a benefit, the LAT did not have power under the Insurance Act to hear or decide on an application for benefits. The LAT application was dismissed. As the LAT did not have jurisdiction, Adjudicator McGee did not address the other grounds for dismissal raised by the insurer.

Moran v. Aviva General Insurance (19-008529)

The claimant applied to the LAT seeking entitlement to psychological and chiropractic treatment, an orthopaedic mattress, and various assessments. Causation was an issue as the claimant had a slip and fall incident and a second motor vehicle accident after the subject accident. Adjudicator Lake held that the “but for” test was the appropriate test for causation. Adjudicator Lake found that the claimant’s psychological impairments were caused by the subject accident. The claimant failed to prove on a balance of probabilities that his physical impairments were caused by the subject accident. The psychological benefits in dispute included the rate payable for a psychotherapist. Adjudicator Lake found that it was appropriate for Aviva to pay a psychotherapist at a lower rate than a psychologist. The claimant was not entitled to the disputed brokerage fee and the amount claimed for documentation and support. The claimant was not entitled to benefits related to physical impairments. The application was dismissed.

Kazmi v. Pembridge Insurance Company (19-010107 and 20-001345)

The claimant applied to the LAT disputing entitlement to IRBs and two medical benefits. The matter proceeded by way of written hearing. Adjudicator Farlam found that the claimant was entitled to an IRB at the rate of $291 per week and awarded the two medical benefits plus interest. With respect to IRBs, the parties agreed that substantive entitlement was not an issue. The insurer argued that the claimant was not entitled to an IRB pursuant to s. 33(6) because he failed to provide documentation necessary to adjust his claim. Adjudicator Farlam held that the claimant responded to the insurer’s requests and there was no valid suspension of benefits pursuant to s. 33. Adjudicator Farlam noted that the claimant had valid reasons for not complying with the insurer’s requests, including misunderstanding the nature of the insurer’s request for medical documents, and finding that the claimant gave best efforts to obtain the requested documents. With respect to the disputed cost of a mattress, Adjudicator Farlam awarded this benefit as she preferred the evidence of the claimant’s treating physician to that of the IE occupational therapist. Adjudicator Farlam held that the treating physician likely knew the claimant best, diagnosed the claimant with chronic back pain, and wrote to the insurer asking it to consider funding a firm mattress. Adjudicator Farlam agreed that the mattress was reasonable and necessary. Adjudicator Farlam also awarded the cost of a chiropractic treatment plan based on the evidence of the claimant’s treating physicians, and noted that the claimant’s family physician wrote a letter to the insurer requesting it reinstate funding of chiropractic care.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.

Jeevakumaran v. Unifund (20-001025)

The claimant sought to be removed from the MIG and entitlement to medical benefits. Adjudicator Mazerolle concluded that the claimant established that he suffered from an accident-related psychological impairment. As such, he was no longer held to the funding and treatment limits of the MIG and s. 18(1) of the Schedule. Adjudicator Mazerolle found that the totality of the records established that psychological symptomology had affected some aspects of the claimant’s daily life. The medical benefits at issue were a psychological assessment, psychological services, and physical therapy. While Adjudicator Mazerolle accepted that the claimant suffered from a psychological impairment, he did not find that the proposed psychological services were payable, due to s. 47(2) of the Schedule. Once the insurer introduced the possibility of the claimant accessing publicly funded therapy through OHIP, the onus shifted to the claimant to rebut this proposition. What is more, the insurer supported this assertion by filing an information sheet from the Centre for Addiction and Mental Health (CAMH) that listed a number of publicly funded clinics and service providers—evidence that this treatment was (in the words of s. 47(2)) “reasonably available to the insured person”. However, Adjudicator Mazerolle could not draw the same conclusion about s. 47(2) for the psychological assessment, as there is no indication whether a similar service was “reasonably available” to be paid through OHIP. Therefore, Adjudicator Mazerolle found the psychological assessment to be payable by the insurer. Finally, Adjudicator Mazerolle was not satisfied that the physical therapy services were necessary for the claimant’s recovery as there was evidence that physical therapy was no longer assisting the claimant with his accident-related impairments.

A.A. v. Unifund Assurance Company (18-008999)

The insurer filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to attendant care benefits at a reduced rate and medical expenses. The insurer submitted that the adjudicator erred in making the inference that because the claimant met the threshold for catastrophic impairment, she continued to meet the test for attendant care benefits. The insurer further argued that the adjudicator failed to apply the proper “but for” test for causation. Vice Chair Maedel found that the adjudicator applied the “but for” test in relation to the attendant care benefits analysis, and had not made any errors in fact or law that would have otherwise led to a different decision on the attendant care issue. Vice Chair Maedel found that the adjudicator did make an error in fact and law when she relied on the insurer’s previous approval of travel expenses to find that the current therapy services in dispute were reasonable and necessary and caused by the accident. Previous approval of a benefit was found to be irrelevant and cannot determine causation. Each treatment plan should be evaluated on whether the treatment can be causally linked to the accident and whether the treatments is reasonable and necessary. Vice Chair Maedel found that s. 46(5) does not entitle a claimant to automatic payment of incurred benefits following a catastrophic impairment designation. A claimant must still demonstrate the treatment is causally related to the accident and is reasonable and necessary. In addition, Vice Chair Maedel found that a catastrophically impaired claimant is not entitled to medical benefits that were incurred prior to submission of an OCF-18, even when an insurer has repeatedly denied medical benefits because the non-CAT limit had been reached. The request for reconsideration was granted in part.

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles

Powered by Crow & Pitcher

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com