BROWN & PARTNERS LLP SABS SUMMARIES SEPTEMBER 2017

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1 BROWN & PARTNERS LLP SABS SUMMARIES SEPTEMBER 2017 Case Name v Wawanesa Mutual Insurance 2017 Con LII (ON LAT) Date March 29, 2017 (In writing) Date of Loss June 28, 2014 Adjudicator Issue(s) Derek Grant 1. Did the Applicant sustain an impairment? 2. Is the Applicant entitled to medical benefits for physical therapy and costs of examinations? Applicant claimed she sustained impairment to her neck and back and her pre-existing sciatica was aggravated by the accident and she requires chiropractic treatment and physical therapy. The Applicant sustained an impairment but is not entitled to the benefits claimed. The pre-accident records indicate that the Applicant suffered from headaches, neck pain and depression. The post-accident records of her family doctor confirmed that she was prescribed stronger nerve pain medication after the accident. In addition, the records showed that C.L. suffered from right-sided sciatica, which had resolved prior to the accident. The Adjudicator found the Applicant would benefit from psychological treatment. The medical records demonstrate that C.L. s psychological issues act as the catalyst to C.L. s recovery, which was not addressed through the recommended physical treatment plans in dispute. C.L. argued that Dr. Hermant s clinical notes and records establish the need for further physical treatment. Throughout Dr. Hermant s records between 2014 and 2015, C.L. reports a variety of issues, related to neck pain and headaches, stress, and depression. The Adjudicator did not found find the recommendation by Dr. Hermant for further physical treatment compelling, due to the inconsistencies of reports given by C.L. to Dr. Hermant, Dr. Spivak, Dr. Silver and Dr. Bodnar about her response to physical treatment. If the reports by the insurer s assessors, Dr. Hermant and her own assessors were consistent, in regards to her response to physical treatment, the Adjudicator stated he would have given more consideration for the need for physical treatment.

2 Case Name L.K. and The Guarantee Company of North America, 2017 CanLII (ON LAT) Date August 11, 2017 Date of Loss October 9, 2001 Arbitrator Issue(s) Gemma Harmison Is the applicant entitled to IRB for a period when benefits were suspended due to non-compliance with section 33(1)? By way of letter dated May 9, 2016, the insurer requested that the applicant provide her CPP disability file pursuant to section 33(1). When the file was not received, the insurer sent a follow-up letter on June 24, IRB were suspended effective July 13, 2016 due to the failure to provide the CPP disability file. The applicant s counsel requested the file on October 11, 2016, received it on November 8, 2016 and provided it to the insurer on December 14, IRB were reinstated on December 19, The applicant sought IRB between July 13, 2016 and December 19, 2016, and costs. The applicant is not entitled to IRB or costs. The insurer contended that the CPP disability file was reasonably required because CPP benefits are deductible from IRB. The Adjudicator noted that section 2(9), which the insurer was relied on, did not apply to this date of loss. Rather, it was open for interpretation if CPP benefits were deductible. The applicant did not persuade the Adjudicator that CPP benefits were not deductible, so production of the file was reasonably required. The applicant contended that the delay in providing the CPP disability file was reasonable because she completed two authorizations for the insurer to obtain different records shortly before the request for the CPP disability file. The applicant argued she believed the request for records was satisfied by completing these forms. The Adjudicator did not accept this explanation. First, it was never communicated to the insurer even though she had counsel. Second, no explanation was provided for why the CPP disability file was not requested until October 11, The applicant argued that she was entitled to her costs because the insurer s request for information was a paper chase and a form of harassment. The Adjudicator held that this conduct took place prior to the proceeding. Costs at the LAT are only available for conduct during a proceeding. 2

3 Case Name v Aviva Insurance, 2017 CanLII (ON LAT) Date August 10, 2017 Date of Loss June 4, 2014 Adjudicator Chris Sewrattan Issue(s) Is the applicant entitled to medical benefits for assistive devices and cost of an examination for a psychological assessment recommended in various treatment plans? Is the applicant entitled to interest on undue payments and costs? The applicant was the seat-belted driver of a 2008 Hyundai Accent when she was struck by another vehicle on June 4, At the time of the accident the applicant was employed full-time as a flight attendant. She took time off between June 21 and the end of July 2014 to attend to the injuries suffered as a result of the accident. Payment for the applicant s treatment is not subject to the $3,500 payment limit. The main issue in this hearing is whether the treatment and assessments sought are reasonable and necessary expenses. The applicant is not entitled to payment for any assistive devices because she has not sufficiently proven that they are reasonable and necessary expenses. The applicant is entitled to payment for the psychological assessment. She is also entitled to interest on this payment in accordance with the Schedule. Neither party is entitled to costs. The applicant s claim for each set of assistive devices is denied. The devices are not reasonable and necessary expenses. Dr. Guy related the necessity of each set of assistive devices to assisting the applicant with completing everyday tasks such as getting dressed and eating. However, during the applicant s examination with Dr. Kopansky-Giles she reported being able to perform her child care, household chores, and working full-time. Furthermore, she reported feeling about 80% improved by the time of the examination. In the applicant s Reply submissions, she denied that she is about 80% improved but did not deny that she reported this fact to Dr. Kopansky-Giles. Further she did not provide any evidence or explanation as to what may have changed since reporting she was 80% improved. Aviva commissioned a psychological report from Dr. Amena Syed dated August 31, 2015 in relation to the request for payment of a psychological examination. Dr. Syed conducted a number of recognized psychological tests on the applicant. The applicant tested as Mildly Impaired on the Beck Anxiety Inventory and Post Traumatic Stress scales. She tested as Moderately Impaired on the Beck Depression Inventory. The applicant was not found to be exaggerating her psychological condition. At the time of this hearing, in 2017, it appears that the psychological issues still have not resolved. It is reasonable and necessary that the applicant is given an opportunity to explore her depression and anxiety issues with a psychological examination. 3

4 Case Name v Belair Direct Insurance Company, 2017 CanLII (ON LAT) Date Date of Loss June 19, 2014 Adjudicator Lori Marzinotto (by written hearing dated January 4, 2017) Issue(s) The applicant disputes 20 issues, including entitlement to medical benefits (treatment plans), further attendant care benefits, interest. The applicant was deemed catastrophically impaired on March 16, He suffered a significant injury to his left arm and specifically his left elbow which he described as totally smashed. He required several surgeries. He also required bone grafts, a total elbow arthroplasty and metal plates. His left arm is now four (4) centimetres shorter and he is unable to straighten his arm and has no elbow pronation and supination. The applicant is right handed Of the issues in dispute the applicant is only entitled to ACB from February 1, 2016 to date and on-going, in part. The applicant is not entitled to the following: -additional ACB from June 2014 March additional ACB from March 2015 to January 31, payment of the balance of treatment plans listed as issues #2, 3, 4, 5, 6, 8, 11, 12, 16 and payment of the treatment plans listed as issues #7, 9, 14, 15 and payment of the treatment plan listed as issue #10. - the treatment plan listed as issue #13 is not properly before the Tribunal. - the treatment plan listed as issue #17 has been paid and therefore not an issue in dispute - Medical benefits were denied due to a general insufficiency of evidence that does not allow me to find for the applicant. Each treatment plan was not individually addressed in the written submissions, and could not be considered on their own. The applicant did not satisfy their burden of showing that the plans were reasonable and necessary.the applicant s blanket submissions was not helpful to the Tribunal. - Discussion of whether AC claimed was incurred as per s.3(7)(e) of the SABS. If incurred quantum is then addressed. Satisfactory evidence of treatment provider providing services. Quantum was questioned as invoices were not consistent. AC was awarded based on verified amounts. 4

5 Case Name v Unifund Assurance Company, 2017 CanLII (ON LAT) Date Date of Loss February 7, 2014 Arbitrator Issues Blaine Baker 1.Did the applicant suffer predominantly minor injuries, whose treatme nt falls within the MIG? 2. Is the applicant entitled to a medical benefit in the amount of $1, for a job demands analysis, less $ of that amount, which the respondent approved as the remainder of the applicant s MIG entitlement? 1. The applicant s injuries were not predominately minor ones as defined by the SABS. 2. The applicant is entitled to receive additional assessment and treatment by Modern OT to a maximum value of $702.51, as specified in an assessment and treatment plan submitted to the respondent on July 28, Forty-one year-old C. W. (the applicant) was injured in a Tbone automobile accident on February 7, 2014 in Kingston, Ontario, and sought benefits under the SABS. The applicant requested a job demands analysis (an occupational therapy assessment and treatment plan) that was submitted on July 28, It was denied in part by Unifund Assurance Company (the respondent) on August 23, That denial was based on the respondent s determination that the applicant had suffered predominantly minor injuries, whose treatment fell within the MIG. The applicant had scaled down post-accident self-employment in his plumbing business from six days to four days a week, and hired a helper to assist him with strenuous work. The respondent relied on opinions provided to it by orthopedic surgeon John Harrington on February 14, 2017 and April 11, 2017, to the effect that the applicant s injuries were soft tissue in nature and therefore minor. But those medical opinions by Dr. Harrington did not address in sufficient detail the applicant s left shoulder injuries or his pre-existing back injuries. Based on the evidence before me, and taking account of Ontario s 2015 Divisional Court decision in Scarlett v. Bellair Insurance, 2015 OSNC 3635 that deals with onuses and burdens of proof in these applications the Arbitrator found that the applicant showed that he suffered from more than minor injuries as defined by the MIG. Arbitrator Baker also found that the applicant s pre-existing medical condition, documented prior to the accident, will prevent him from 5

6 achieving maximal recovery under the MIG. He was therefore entitled to treatment valued beyond the MIG dollar limit, subject to the statutory prescription period that had now run in the case. 6

7 Case Name v Aviva General Insurance, 2017 CanLII (ON LAT) Date August 1, 2017 Date of Loss December 12, 2015 Adjudicator Christopher A. Ferguson Issue 1. Does the $2,000 cap for assessments under s. 25 (5) of SABS include fees for preparing the OCF-18 form? 2. Does the $2,000 cap include HST on the cost of an assessment and the cost of preparing the OCF-18? No to both issues. The applicant was involved in a MVA on December 12, The insurer approved assessments recommended in two OCF-18 s and paid the maximum $2,000 allowed under s. 25(5) of the Schedule. The applicant sought payment for the cost of preparing the OCF-18s and HST, beyond the $2000 cap. 1. The cost of preparing an OCF-18 is a separate cost payable by the insurer above the $2000 cap set by s. 25(5) of the SABS. This is clearly stated in the Superintendent s Guideline 03/ The HST applied to the assessment recommended in the OCF-18, as well as the cost of preparing the OCF-18 is payable by the insurer and not covered by the $2000 cap. This is clearly stated in the Superintendent s Guideline No. 03/14 7