Shaikh v. Economical Insurance Company (20-009837/AABS)

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.

Prillo v. Coseco Insurance Company (20-014401/AABS-R)

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.

Bennett v. The Co-operators (20-014453/AABS)

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.

Liu v. Certas Direct Insurance Company (20-012975/AABS)

The claimant disputed entitlement to NEBs, several treatment plans, and whether her injuries fell under the MIG. Adjudicator Maedel found that the claimant’s injuries fell outside of the MIG due to psychological impairments. Despite the insurer’s arguments that the claimant’s psychological report was based entirely on subjective reporting and not on contemporaneous medical records, Adjudicator Maedel relied on the claimant’s report because the insurer did not have a report to respond to the claimant’s report. The claim for NEBs was rejected because the claimant failed to produce evidence regarding her pre-accident lifestyle to establish how she suffered a complete inability to carry on a normal life. The disputed chiropractic treatment plan was rejected because the claimant failed to produce medical evidence to support that the treatment was reasonable and necessary. Finally, Adjudicator Maedel found that the psychological assessment was reasonable and necessary based on his finding that the claimant suffered from psychological impairments.

Rosoli v. Aviva General Insurance (21-009076)

The claimant had previously filed a LAT Application in 2018 disputing IRBs and several treatment plans. The Application proceeded to a hearing and was dismissed. The claimant did not request a reconsideration of the decision nor did she pursue an appeal. On July 9, 2021, the claimant filed a second LAT Application disputing IRBs, the MIG and several treatment plans. The insurer argued that the claimant’s application for benefits was barred due to res judicata based on her prior LAT Application regarding the same accident, which was previously dismissed at a hearing. The insurer noted that while the disputed treatment plans for the current Application had different dates on them, they were for the exact same services that were addressed in the prior Decision. The insurer argued that res judicata would prevent the claimant from bringing multiple claims for the same relief simply by changing the grounds (or date) on which the claim was made. The claimant argued that the treatments plans were in fact new issues, and that medical evidence showed she required updated treatments as she had yet to reach maximal medical recovery and required additional treatment. Adjudicator Kaur opined that res judicata had been met. A review of the medical records indicated no additional evidence that would warrant avoiding the application of res judicata, in fact, the new records indicated that the claimant had reached maximal medical recovery and that no further treatment was warranted. Adjudicator Kaur dismissed the Application.

McKay v. Travelers Insurance (20-008456)

The claimant brought an initial application in which the sole issue being raised was whether her injuries fell under the MIG. Adjudicator Watt found that the LAT did not have jurisdiction under the SABS to determine the issue of MIG in in the absence of any specific treatment plan(s) in dispute. Adjudicator Watt stated that a MIG designation did not constitute a guarantee or refusal for payment of a treatment plan. Rather, the MIG permitted a claimant to apply for benefits within its prescribed limits. Adjudicator Watt noted that the LAT could only determine the applicability of the MIG in conjunction with the reasonableness and necessity of a disputed benefit. The claimant’s application was dismissed for a lack of jurisdiction.

Phan v. Security National Insurance Company (20-011925)

The claimant brought an initial application where the LAT held that her impairments were predominantly minor, that she was subject to the MIG, and denied her claim for six treatment plans because her MIG limits were exhausted. The claimant brought a subsequent application seeking entitlement to nine treatment plans and assessments. The insurer brought a preliminary motion to dismiss the claim on the grounds of res judicata. Vice Chair Flude found that the claimant failed to bring forward evidence of recent deterioration in her condition that resulted in her impairments no longer being the result of predominantly minor injuries. The only new evidence that was provided by the claimant involved complaints of back pain, but which did not tie that complaint to impairments sustained in the accident. Vice Chair Flude refused to consider imaging reports relied on by the claimant during oral submissions, as these reports were previously available for disclosure in the first hearing and no reason was provided as to why it was not disclosed at that time. As such, Vice Chair Flude held that res judicata applied to bar her claim.

Galang v. Coseco Insurance Company (20-008382)

The claimant was injured in an accident on April 30, 2018. She sought entitlement to various treatment plans, including a chiropractic treatment plan submitted on May 15, 2018, and a physiotherapy treatment plan submitted on July 19, 2018. The insurer denied the claimant’s chiropractor treatment plan and partially approved the physiotherapy plan. The claimant was removed from the MIG on August 24, 2018. Adjudicator Deol held that the claimant was not entitled to the denied chiropractic treatment plan as it was properly denied under s. 38(5) of the Schedule, as the insurer was entitled to refuse a non-MIG treatment plan while the claimant was still within the MIG. In rejecting the claimant’s treatment plan for chiropractor treatment, the insurer clearly advised the claimant that their OCF-18 was being denied pursuant to ss. 38(5) and 38(6). However, Adjudicator Deol held that the insurer’s denial of the claimant’s physiotherapy treatment plan was not valid pursuant to s. 38(5). The insurer did not “refuse to accept” the disputed OCF-18, as it partially approved the OCF-18 and the denial letter did not reference ss. 38(5) and 38(6).

Pham v. Coseco Insurance Company (20-004749)

The claimant commenced two applications for treatment and assessment plans. The first application dealt with certain disputed treatment and assessment plans, and the Insurer’s determination that the claimant sustained a minor injury. The second application concerned the claimant’s chronic pain treatment plan. A motion decision ordered that the decision rendered in the first application regarding the MIG would apply to the second application. In the first application, the Tribunal held that the claimant fell within the MIG. For the second application, the claimant argued that she was entitled to the treatment plan because the insurer failed to respond in accordance with s. 38 of the SABS, and that the treatment was reasonable and necessary. The insurer argued that the Tribunal had already held the Plaintiff was subject to the MIG, the claimant’s fresh evidence did not impeach the original decision, and thus not entitled to the chronic pain treatment plan. Adjudicator Norris agreed with the Insurer, and held that the claimant was not entitled to the disputed chronic pain treatment plan as her injuries fell within the MIG.

Kanama v. Waterloo Insurance (19-006369)

In a prior decision, the Tribunal held that the claimant’s injuries were minor, and subject to the $3,500 MIG limit. The claimant reapplied to the tribunal, seeking an income replacement benefit and entitlement to treatment plans. The claimant asserted that his condition had worsened, and provided updated medical records. The insurer argued that the applicability of the coverage limit had already been previously decided by the tribunal. Vice Chair Flude held that the claimant failed to establish a material change occurred in his condition that would change the Tribunal’s previous decision. The claimant’s records did not establish that his condition deteriorated. The claimant’s back issues were largely unchanged, the imaging studies showed no change, and the claimant’s physiatrist did not change his recommendation despite numerous visits. However, the claim for IRBs was permitted to proceed.