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Learn How the Licence Appeal Tribunal Decides Personal Injury Benefit Disputes
Case Studies
Applicant v Aviva Insurance Canada, 2017 CanLII 9808 (ON LAT) 16-001144/AABS
Entitlement to IRBs and Orthopaedic Assessment Despite Insurer’s Denial
In LAT Applicant v. Aviva, 2017 CanLII 9808 (ON), the Tribunal found the Applicant entitled to IRBs of $184.13/week from February 11, 2016 to June 5, 2017, as his accident-related physical and psychological impairments prevented him from performing the heavy tasks of his pre-accident truck driver assistant job. The Tribunal also held that the orthopaedic assessment ($1,994.72) was reasonable and necessary given his pre-existing conditions and accident injuries falling outside the MIG. The Applicant was awarded interest on overdue benefits, while no costs were granted to either party.
Applicant v. Motor Vehicle Accident Claims Fund, 2017 CanLII 76920 (ON LAT) 17-000665/AABS
Psychological Injuries Place Applicant Outside the MIG, Leading to Partial Entitlement of Benefits
The applicant, injured in a 2014 motor vehicle accident, sought multiple medical, rehabilitation, and assessment benefits. The respondent (MVACF) denied many treatment plans, arguing the applicant’s injuries fell under the Minor Injury Guideline (MIG) and that the plans were not reasonable or necessary. The Tribunal found the applicant’s injuries were not limited to the MIG, as psychological impairments placed them outside its scope. The applicant was entitled to several chiropractic and physiotherapy treatment plans, an orthopaedic assessment, and interest on overdue payments. Neither party was awarded legal costs. The applicant received partial success, securing entitlement to a number of treatment plans and assessments, but not all requested benefits.
Applicant v. RBC, 2018 CanLII 83514 (ON LAT) 17-006851/AABS
Insurer Barred from Relying on Minor Injury Guideline Due to Late Denial Notice
The applicant, injured in a 2015 automobile accident, sought statutory accident benefits, which RBC Insurance denied, citing the Minor Injury Guideline (MIG). The Tribunal found that the insurer failed to provide a timely notice of denial under section 38(8) of the Schedule, sending it to the wrong address and outside the 10-business-day window. As a result, the insurer was prohibited from relying on the MIG, and the applicant was entitled to payment for treatment incurred during the period of delayed notice. The applicant was additionally entitled to interest on overdue payments.
Applicant v. Aviva Insurance Canada, 2018 CanLii 81949 (ON LAT) 17-006757/AABS
Unreasonable Delay and Withholding of Benefits: LAT Awards 40% for an Award Against Aviva
The applicant, injured in a November 2016 motor vehicle accident, initially disputed entitlement to non-earner benefits (NEBs) and several treatment plans. Before the hearing, the parties resolved all substantive benefit issues, leaving only the question of a special award under s. 10 of O. Reg. 664.
The insurer argued that the Tribunal had no jurisdiction to make the award since all benefits had been paid. Adjudicator Paluch agreed with the claimant that the Tribunal had jurisdiction to issue a special award even if no benefits remained in dispute. He concluded that the insurer had been unreasonably slow in responding to the claims for NEBs and medical benefits, and that a special award was warranted. He considered seven factors (blameworthiness of the insurer; vulnerability of the claimant; harm or potential harm directed at the claimant; need for deterrence; advantage wrongfully gained by the insurer from the misconduct; any other penalties imposed on the insurer; the overall length in delay) in concluding that an award of 40 percent was appropriate. ($5,896.83 plus interest
Budhram v. Aviva Insurance Canada, 2021 CanLii 13209 (ON LAT) 19-014428/AABS
Partial entitlement granted: massage therapy awarded for insurer’s non-compliance
The claimant sought entitlement to two treatment plans, including massage therapy and a chronic pain assessment following a 2017 motor vehicle accident. Adjudicator Lake found that the claimant was entitled to a portion of the remaining amount for the massage therapy as the accident caused or worsened Mr. Budhram’s neck, back, and shoulder conditions. The claimant submitted that the insurer failed to comply with its obligations under section 38(8). Based on a plain reading of section 38(11)(2), the insurer is liable for payment of the proposed treatment described in the disputed OCF-18 that relates to the period starting on the 11th business day after the day that the insurer received the OCF-18 and ending on the day the insurer gives a notice described in section 38(8).
Adjudicator Lake also stated that the amount does not need to be incurred during that time. Finally, Adjudicator Lake concluded that medical reasons provided under a separate heading for an IE do not mitigate the requirement of the insurer to provide medical reasons for its denial of the OCF-18 under section 38(8).
C.B. v. Aviva General Insurance Company (2020 CanLII 69913 (ONLAT) 18-012621/AABS
Accident Exacerbated Pre-Existing Injuries – Chiropractic Treatment Plan Found Reasonable and Necessary
In C.B. v. Aviva General Insurance Company (2020 ONLAT 18-012621/AABS, the Tribunal found the applicant entitled to chiropractic treatment and interest on overdue payments. The adjudicator held that the September 2017 motor vehicle accident exacerbated the applicant’s pre-existing injuries, that the proposed treatment plan was reasonable and necessary, and that Aviva’s denial lacked sufficient medical justification.
Coletti v. Guarantee Company of North America, FSCO A04-002087 (2005 ONFSCDRS 148)
Insurer’s Examination Denied Due to Lack of Formal Benefit Application
Achille Coletti was injured in a motor vehicle accident and sought statutory accident benefits from Guarantee Company of North America, specifically for housekeeping and home maintenance. The insurer requested an examination under section 42 of the Statutory Accident Benefits Schedule (SABS) before Coletti had formally submitted his application for those benefits. The arbitrator ruled that Mr. Coletti was not required to attend the insurer’s examination, as he had not yet applied for the housekeeping benefits at the time the notice was given.
Mr. Coletti was awarded $600 in expenses for the motion. The decision emphasized procedural clarity and the importance of formal applications before insurers can exercise their right to request medical examinations.
E.S. v Aviva Insurance Canada,2018 CanLII 130867 (ON LAT) 18-000456/AABS
Credibility and Medical Evidence Prevail in Chronic Pain Treatment Dispute
In this case, the claimant, E.S., sought payment for the remaining balance of a partially approved treatment plan for a chronic pain assessment, along with interest on overdue benefits. Adjudicator Victor ruled in favor of the claimant, awarding the balance of the treatment plan (excluding transportation expenses, which are not covered under the SABS) and interest. The adjudicator emphasized the claimant’s credibility and supporting medical documentation as central to the decision. E.S.’s chronic pain was found to have significantly impacted his daily life and employment, leading to a career change to accommodate physical limitations. The insurer relied on an Independent Examination (IE) report by Dr. Oshidari, which was criticized as a “copy and paste” of a previous report and deemed unreliable. The adjudicator concluded that the claimant’s ongoing pain and its functional impact justified the disputed treatment plan.
G.A. v. Allstate Insurance, 2020 CanLII 47718 (ON LAT) 19-003433/AABS
Treatment Plan Partially Approved Despite Insurer’s IE Objections
In this case, the applicant, G.A., sought payment for four treatment and assessment plans following a motor vehicle accident. Allstate Insurance denied the plans, prompting the applicant to bring the matter before the Licence Appeal Tribunal.
Adjudicator Brian Norris found a chiropractic treatment plan was largely reasonable and necessary, due to Allstate’s non-compliant denial, the applicant was also entitled to payment for incurred services between May 29 and August 16, 2018.
Adjudicator Noris also found a psychological treatment plan was reasonable and necessary, supported by consistent symptoms and recommendations from treating professionals. The applicant was awarded interest on overdue payments for the approved plans under section 51 of the Statutory Accident Benefits Schedule (SABS).
G.T. v. Unifund, 2017 CanLII 33656 (ON LAT) 16-001283/AABS
Insurer’s Procedural Misstep Leads to Mandatory Payment for Orthopaedic Assessment
In this case, the applicant, G.T., was injured in a motor vehicle accident and sought payment for an orthopaedic assessment conducted by Dr. Frederic Langer. Unifund Assurance denied the claim, arguing the assessment should be covered by OHIP and that the applicant fell under the Minor Injury Guideline.
Adjudicator Chris Sewrattan ruled that Unifund failed to provide a valid medical reason for its denial within the required timeframe under section 38(8) of the Statutory Accident Benefits Schedule (SABS). As a result, under section 38(11), the insurer was required to pay for the assessment.
The adjudicator rejected Unifund’s reliance on OHIP coverage and the Minor Injury Guideline as insufficient and procedurally flawed.
The applicant was awarded interest on the overdue payment.
Kainth v. Guarantee Company of North America, 2005 ONFSCDRS 103 (FSCO A03-001307)
Settlement Confirmed, Expense Claims Denied Due to Procedural Oversight
In this preliminary issue decision, the applicant, Chattar Kainth, and the insurer, Guarantee Company of North America, disputed whether a settlement had been reached regarding statutory accident benefits following a motor vehicle accident. The adjudicator, Denise Ashby, found that a binding settlement was reached on May 13, 2004, confirmed in writing the next day. The settlement covered all substantive issues, including income replacement, medical benefits, and housekeeping claims. The insurer failed to explicitly reserve its right to pursue expenses, and thus was precluded from doing so. Mr. Kainth was awarded $750 in expenses for the preliminary issue hearing due to his partial success.
Lamasan v. Certas, 2017 ONFSCDRS 16 (FSCO A14-006115)
Chronic Pain and Psychological Impairments Remove Claimant from MIG Cap
In this arbitration, the applicant, John Lamasan, sought multiple accident benefits following a motor vehicle accident in December 2013. Certas Direct Insurance Company denied several claims, asserting that the injuries fell under the Minor Injury Guideline (MIG) and challenging the credibility of the applicant. Arbitrator Lynda Tanaka ruled in favour of the applicant on all major issues, Income Replacement Benefits: Awarded from December 21, 2013 to September 20, 2014. The applicant’s impairments, including chronic pain and psychological issues, were found to exceed the MIG threshold. Psychological Treatment and Assessments were approved based on credible evidence of driver anxiety, irritability, and adjustment disorder. Accountant and Orthopaedic Reports were found reasonable and necessary due to Certas’ delays and lack of transparency. Interest and Expenses: Awarded due to overdue payments and the applicant’s success in arbitration.
Lechowski v. Waterloo Insurance,2023 CanLII 58504 (ON LAT) 21-000137
Psychological Impairments Justify MIG Removal
In this case, the applicant, Mariusz Lechowski, sought accident benefits following a motor vehicle accident in July 2019. The key dispute was whether his injuries were subject to the Minor Injury Guideline (MIG) and whether several psychological treatment plans were reasonable and necessary. Adjudicator Ulana Pahuta ruled the applicant’s psychological impairments warranted removal from the MIG, based on diagnoses including vehicular phobia, somatic symptom disorder, and major depressive disorder. The Tribunal approved treatment and assessment plans for a psychological assessment and treatment and interest on both overdue payments.
Mora v. Aviva Insurance Company of Canada, 2022 CanLII 27254 ONLAT 20-002208/AABS
Physiotherapy Treatment Approved Despite Insurer’s Psychological Pain Argument
In this case, the applicant, Elvira Sanchez Mora, sought payment for a physiotherapy treatment plan following a motor vehicle accident on December 6, 2017. Aviva Insurance denied the claim, arguing that the applicant’s pain was psychological in nature and that passive physical therapy would not improve her condition.
Adjudicator Amanda Marshall ruled in favour of the applicant, finding that the $3,927.98 physiotherapy treatment plan was reasonable and necessary, supported by multiple treating practitioners. The applicant’s neurologist and physiatrist recommended continued physical therapy, including hydrotherapy and acupuncture. The insurer’s own IE report acknowledged temporary relief from prior therapy, which supported the applicant’s claim.
The applicant consistently reported that physical treatment helped manage her symptoms.
Interest was awarded on overdue benefits under section 51 of the Statutory Accident Benefits Schedule (SABS).
N.C. v RBC General Insurance, 2016 CanLII 93134 (ON LAT)
Carpal Tunnel Diagnosis Removes Claimant from MIG and Validates Treatment Plans
In this case, the applicant, N.C., was injured in a motor vehicle accident and sought accident benefits from RBC Insurance. RBC denied two chiropractic treatment plans and adjusted the applicant’s income replacement benefit starting January 2016. The applicant appealed to the Licence Appeal Tribunal.
Adjudicator Chris Sewrattan ruled the applicant’s injuries, including carpal tunnel syndrome and ulnar neuropathy, were not minor and warranted removal from the Minor Injury Guideline (MIG). Both disputed chiropractic treatment plans were found to be reasonable and necessary, with interest awarded on overdue payments.
The applicant was entitled to a weekly income replacement benefit of $280.16, based on accounting evidence.
Persad v. Aviva, 2022 CanLII 20165 (ON LAT) 19-010452
Chronic Pain Program and Updated Disability Certificate Found Reasonable and Necessary
In this case, the applicant, Ganga Persad, sought payment for two disputed accident benefits following a motor vehicle accident in September 2017.
Adjudicator Derek Grant ruled in favour of the applicant and found an OCF-3 was deemed payable, as it provided updated medical evidence that led to the reinstatement of the non-earner benefit (NEB), a chronic pain treatment plan was found reasonable and necessary, supported by a detailed report from chronic pain specialist Dr. Brown, who diagnosed chronic pain syndrome and recommended multidisciplinary treatment. The adjudicator gave greater weight to Dr. Brown’s expertise over the insurer’s general practitioner, whose report lacked engagement with the chronic pain diagnosis.
Interest was awarded on both overdue payments under section 51 of the Statutory Accident Benefits Schedule (SABS).
Royan Stone v. Economical Insurance, 2022 CanLII 93713 (ON LAT) 20-006642/AABS
Inadequate Denial Notice and Functional Decline Justify Treatment and Assessment Costs
In this case, the applicant, Royan Stone, sought payment for two accident-related benefits following a motor vehicle accident on June 3, 2018, chiropractic services and medical goods and a physiatry assessment. Adjudicator Michael Beauchesne ruled in favour of the applicant and found the insurer’s initial denial notice was found non-compliant under section 38(8) of the Statutory Accident Benefits Schedule (SABS), lacking specific medical reasoning. As a result, the insurer was ordered to pay for the treatment plan under section 38(11). The physiatry assessment was deemed reasonable and necessary, especially in light of the applicant’s functional deterioration, new diagnoses, and cessation of therapy due to financial constraints. The adjudicator rejected the insurer’s argument that the applicant’s removal from the Minor Injury Guideline (MIG) was limited to psychological impairments. Interest was awarded on both overdue payments.
S.E. v. Aviva, 2020 CanLII 30418 (ON LAT) 18-000787
Psychological Assessment Costs Partially Approved Despite Insurer’s Fee Dispute
In this decision, the applicant, S.E., sought payment for the full cost of a psychological assessment following a motor vehicle accident on September 1, 2015. Aviva initially denied the assessment under the Minor Injury Guideline (MIG), later partially approving $1,389.87 of the $2,267.80 proposed by Dr. Pilowsky. Adjudicator Aggrey Msosa ruled that the applicant was entitled to the remaining $877.93 for the psychological assessment. Interest was awarded on the overdue amount under the Statutory Accident Benefits Schedule (SABS). The adjudicator found that Aviva’s reliance on its own IE assessor’s fee breakdown lacked sufficient rationale. There is no requirement under the Schedule for hourly breakdowns to justify assessment fees. Aviva’s own IE cost exceeded the allowable limit under s.25(5)(a), undermining its position.
V.D. V. Aviva, 2019 CanLII 43892 (ON LAT) 18-007435
NEB Appeal Allowed Despite Missed IE; Tribunal Lacks Jurisdiction Over Unpaid Approved Assessment
In this preliminary decision, the applicant, V.D., sought accident benefits following a motor vehicle accident on May 27, 2016. Aviva raised two preliminary objections: that V.D.’s appeal should be barred due to her failure to attend an insurer’s in-home occupational therapy examination (OT IHE), and that the Tribunal lacked jurisdiction to hear her claim for payment of a psychological assessment that had been approved but remained unpaid.
Adjudicator Christopher Ferguson ruled that V.D. was not barred from proceeding with her appeal for non-earner benefits (NEBs). The Tribunal found Aviva’s explanation for the OT IHE request was insufficient, and V.D.’s concerns were reasonable and not properly addressed by the insurer.
The Tribunal lacked jurisdiction to hear the dispute over the unpaid psychological assessment, as there was no denial of the benefit and the provider had not complied with Aviva’s request for documentation under section 46.2 of the Schedule.
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