The claimant appealed the Tribunal’s decision that he suffered a MIG injury. The Court rejected the appeal, concluding that the claimant was essentially seeking a re-weighing of the evidence. The Court acknowledged that the Tribunal made a factual error in the medical chronology, but that the error was not sufficiently central or significant to the outcome, and would not have changed the result.
The claimant appealed the Tribunal’s decision that his injuries fell within the MIG and that he was not entitled to disputed medical benefits. The Court dismissed the appeal. The Court held that the Tribunal properly approached the competing medical and expert evidence. The Tribunal was entitled to reject the opinion of the claimant’s expert notwithstanding the insurer not having a responding expert report. The claimant’s arguments regarding the weight of medical evidence and opinion was not reviewable on appeal. The Tribunal’s findings regarding pre-existing conditions considered the medical evidence submitted, and the conclusions were reasonable. Finally, the Tribunal was under no obligation to request the parties submit more evidence or better evidence when confronted with illegible doctor’s notes. A written hearing format was agreed upon by the parties, and the claimant had the obligation to put forward evidence in support of his position.
The insurer appealed the Tribunal’s decision that the claimant was entitled to an attendant care assessment due to having pre-existing conditions, despite suffering only minor injuries. The insurer argued that the minor injury bar still applied to attendant care benefits and assessments for persons with pre-existing conditions who were not subject to the $3,500 MIG limit. The Court dismissed the appeal, holding that the Tribunal correctly determined that a person with pre-existing conditions could receive attendant care benefits and an assessment. The insurer’s argument was held to be too focused on single words and phrases in the SABS, rather than focusing on the entire structure of the SABS.
The claimant sought entitlement to IRBs, medical/rehabilitation benefits, a psychological assessment, and the cost of an accountant’s report. The respondent denied the claims for medical and rehabilitation benefits because it determined that the claimant’s injuries fell within the MIG. Adjudicator Neilson accepted that the claimant sustained a psychological impairment as a result of the accident that removed him from the MIG. He was therefore entitled to the medical/rehabilitation benefits and psychological assessment sought. With respect to IRBs, Adjudicator Neilson held that the claimant was entitled to IRBs from February 8, 2021 (date of submission of OCF-3) to March 3, 2021 (date of return to work). The claimant was not entitled to IRBs before the OCF-3 was submitted to the respondent on February 8, 2021. Adjudicator Neilson emphasized that the date on which the OCF-3 was prepared was not a consideration. She went on to note that those consequences did not apply prior to submission of an OCF-10 election form, as the SABS do not state that a specified benefit is not payable for any period before the OCF-10 is submitted (unless the OCF-10 was requested under section 33 of the SABS, it was not submitted on time, and the claimant had no reasonable excuse for delay). She also noted that there was no requirement in the SABS for an insurer to mention section 33 when making a request for information or to advise an insured person of the consequences for failing to comply with a section 33 request. The claimant was entitled to the cost of an accountant’s report under section 7(4) of the SABS because his IRB entitlement was not a straightforward simple calculation as he was self-employed at the time of the accident. Accordingly, an accounting report calculating the claimant’s base amount for the purpose of calculating IRBs was necessary.
The claimant disputed entitlement to a chronic pain assessment and a psychological assessment. The claimant argued that in denying these plans, the insurer did not specify a medical basis for the denial or request further medical documentation from the claimant. The claimant further contended that the insurer failed to provide a medical ground for maintaining the MIG designation of the claimant, and that, regardless of whether the proposed treatment plans were deemed reasonable and necessary, sections 38(8) and 38(11) of the SABS preclude the insurer from maintaining such designation. The insurer argued that, contrary to section 33.1(1) of the SABS, the claimant failed to provide her family doctor’s CNRs in support of her proposed OCF-18s as requested until approximately two years after the accident. Furthermore, the insurer submitted that sections 38(8) and 38(11) of the SABS were fulfilled by its request for the CNRs. Adjudicator Roswell preferred the insurer’s argument, holding that insurers have the right to reject treatment and assessment plans during the time when a claimant is eligible for goods and services under the MIG where the claimant submits requested medical information past the deadline specified in the SABS and does not exhaust the MIG. A medical basis is only a prerequisite for an insurer’s denial of proposed OCF-18s where the relevant medical records are produced by the claimant in the time frame prescribed by 33.1(1) of the SABS, which the claimant failed to do. Adjudicator Roswell also noted that, under s.38(6) of the SABS, the insurer’s decision to refuse a treatment and assessment plan under s. 38(5) is final and cannot be reviewed. Therefore, Adjudicator Roswell found that the insurer’s denial notice was sufficient. In addition, Adjudicator Roswell held that the claimant’s pre-existing psychological conditions, evidenced in the CNRs, constituted evidence sufficient to remove the claimant from the MIG.
The claimant applied to the LAT for entitlement to medical benefits outside of the MIG. Adjudicator Cavdar found that the issue of whether the claimant sustained predominantly minor injuries was already determined by the LAT in a 2020 decision and was, therefore, res judicata. Accordingly, the claimant remained in the MIG and was not entitled to the treatment plans in dispute.
The claimant disputed entitlement to ACBs and medical benefits that were denied because the claimant was within the MIG. The Tribunal found that the claimant failed to demonstrate that his injuries warranted removal from the MIG. The Tribunal rejected the argument that an insurer is required to re-schedule an IE within 10 days of an applicant agreeing to re-attend same and held that IEs are not mandatory. The claimant was not entitled to the disputed benefits.
The claimant brought a LAT application to dispute NEBs and his MIG designation. Adjudicator Flude found that the claimant was not entitled to NEBs because he had failed to submit a signed application for NEBs until June 8, 2020, approximately a year after the accident of July 16, 2019. Adjudicator Flude confirmed that an application for NEBs could not be considered complete until a signed OCF-3 has been submitted. The claimant was found to be ineligible for NEBs in the period following the submission of his application because he failed to respond to a s. 33 request issued by the insurer. Adjudicator Flude also found that the claimant’s injuries fell within the MIG. The claimant had failed to report his significant pre-accident history with his medical examiners, which rendered their diagnoses regarding his impairments unreliable. The Adjudicator noted that the claimant’s medical records reflected an improvement of his symptoms from July 2019 to November 2019. He drew an adverse inference from the claimant’s failure to produce further medical records after November 2019 and opined that the records would have reflected an improvement of the claimant’s symptoms. Adjudicator Flude concluded that the claimant did not suffer from chronic pain syndrome as a result of the accident and that his injuries were minor in nature.
The claimant filed a request for reconsideration arising from an October 14, 2022 decision, in which Adjudicator Pahuta ruled that the claimant sustained “minor injuries” and was not entitled to further treatment outside of the MIG. The claimant filed for reconsideration under Rule 18.2 (b), alleging that Adjudicator Pahuta made an error of law or fact. The claimant also argued that they suffered from chronic pain, which would remove them from the MIG. Adjudicator Pahuta noted that the claimant’s evidence was considered in full, including the chronic pain report of Dr. Robertus, which was weighed against the overall medical evidence and family doctor records showing only minor pain complaints post-accident, with most entries being for unrelated issues. The claimant made several other allegations, including that pre-accident back pain and osteoporosis would have resulted in a MIG removal, an OCF-3 was not properly considered, and that the disputed OCF-18s were not properly viewed for necessity. Adjudicator Pahuta noted that many of these arguments were not made in the original submissions, and it appeared that the claimant was attempting to re-litigate the original issues by way of making alternative arguments not originally made at the hearing. While all of the issues brought up by the claimant were considered, the same issues were now being re-argued with several new and alternative arguments being introduced. As the claimant’s evidence related to issues already fully considered and addressed in the original decision, the request for reconsideration was denied.
The claimant filed a LAT Application disputing several OCF-18s with interest. A special award was also claimed. The claimant argued that her worsening pre-accident fibromyalgia had resulted in numerous falls prior to the accident which required physical treatment. The main issue was payment of an OCF-18 for an attendant care assessment. The assessment had been incurred and a Form 1 recommending $1,231.30 in attendant care had been submitted. The Co-operators denied the OCF-18. The Co-operators argument involved s. 25 and s. 14. They argued that the claimant’s issues and injuries were not as a result of the accident, and while she had in fact been removed from the MIG due to her pre-exisiting conditions, the attendant care assessment would not be payable as any injury was pre-existing and not “as a result of the accident”, which would not allow access to attendant care. Furthermore, they argued that under s. 18(2), the claimant would only be removed from the cap on MR funding, and that under s. 25(2) or s. 14, this would not establish entitlement to an attendant care assessment solely based on a pre-existing condition. Adjudicator Grant disagreed, noting that the Co-operators appeared to be conflating the intentions of s. 25 and s. 14 in order to split impairments from access to funding. He further noted that a plain reading of s. 14(2) showed that once the insured had received notice of removal from the MIG, it was final and complete — there was no “partial removal”. Adjudicator Grant found the occupational therapy report submitted by the claimant to be persuasive compared to her medicals, and ruled that the OCF-18 and resulting report were reasonable and necessary in order to establish her post-accident level of functioning.
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles
Powered by Crow & Pitcher
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850