Our client was involved in a 2017 motor vehicle accident and sought benefits from her accident benefits insurer.
The issue at this hearing was whether our client was entitled to an award based on her allegation that Aviva unreasonably withheld or delayed payments for attendant care benefits.
Adjudicator Fricot granted an award in the amount of $1,500 plus interest for the following reasons:
- Our client provided Aviva with a March 1, 2018 OT Report that outlined her ongoing symptoms and recommended she receive a monthly attendant care benefit of $1,645.56. On April 26, 2018, Aviva advised that our client’s injuries were not in the Minor Injury Guideline (“MIG”). The log notes confirmed that by April 27, 2018, Aviva had reconsidered its position and concluded the applicant was in need of attendant care services. In addition, the log notes indicated that the adjuster left a message for our client advising that Aviva would reconsider attendant care expenses incurred since February 2018.
- By April 27, 2018, Aviva had concluded that our client’s injuries fell outside the MIG as a result of psychological injuries and required attendant care benefits. Despite having determined our client’s injuries fell outside the MIG and was in need of attendant care services, on April 26, 2018, Aviva maintained its denial of the treatment plan solely on the conclusions of a physiatrist who conducted an IE assessment and concluded that strictly from a musculoskeletal perspective, our client’s physical injuries were minor and should be treated within the MIG.
- In a July 8, 2018, our firm wrote to Aviva, noting that our client had been removed from the MIG. However, Aviva responded on July 30, 2018, maintaining its denial of the treatment plans, despite acknowledging that our client was no longer in the MIG due to a psychological impairment and medical evidence from our client’s family doctor and neurologist which noted that the applicant suffered from concussion related symptoms. Again, the basis for Aviva’s denial was that from a musculoskeletal standpoint our client had MIG injuries.
The adjudicator concluded that based on these facts, Aviva had an obligation to determine whether any treatment plans related to physical or psychological injuries were reasonable or necessary. The reference from the physiatrist IE assessor’s opinion that our client was in the MIG from a physical standpoint was not accurate as the assessor specifically deferred his opinion to a neurologist with respect to our client’s concussive symptoms. Further, Aviva provided no explanation for why the treatment plan for an OT assessment was rejected on April 26, 2018. Therefore, Aviva’s continued denial of the treatment plan between April 27, 2018 and November 12, 2018 was unreasonable.