Category: Attendant Care Benefits

Luluquisin v. Aviva Insurance Co. of Canada (2024 ONSC 5369)

Post author By tgp-admin
Post date October 2, 2024
No Comments on Luluquisin v. Aviva Insurance Co. of Canada (2024 ONSC 5369)

The claimant appealed the Tribunal’s dismissal of his claim for attendant care benefits. He argued that the Tribunal failed to consider all the evidence and gave insufficient reasons. The Court agreed that the Tribunal failed to provide sufficient reasons. The claimant had a catastrophic impairment, and the Tribunal summarily dismissed the claim for ACBs without engaging in the evidence presented by the claimant. The Tribunal ought to have engaged in the statutory scheme in greater detail with reference to the relevant evidence. The Court remitted the matter back to the Tribunal for a new hearing.

Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

Post author By tgp-admin
Post date May 6, 2024
No Comments on Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.

Co-operators Insurance Company v. Bennett (2024 ONSC 467)

Post author By tgp-admin
Post date February 7, 2024
No Comments on Co-operators Insurance Company v. Bennett (2024 ONSC 467)

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.

Doran v Gore Mutual Insurance Company (20-013924)

Post author By tgp-admin
Post date June 23, 2023
No Comments on Doran v Gore Mutual Insurance Company (20-013924)

The claimant sustained a CAT impairment and sought ACBs from the insurer. The insurer initially provided ACBs at $6,000 per month, but benefits were reduced to $4,339.71 and later cut to $1,040.10, based on the determination that she no longer required basic supervisory care and mobility assistance. The claimant disputed these reductions. The LAT ruled that the claimant was entitled to ACBs at $1,630.72 per month and interest on overdue payments . A few procedural issues were raised. The claimant argued that the s. 44 IE report and Form 1 should be excluded as the insurer’s correspondence and examination notice were not compliant with sections 19, 42 or 44 (5) of the SABS. The claimant asserted that the notice to assess did not include a medical reason for the IE request distinct from the non-earner benefit. As such, the claimant contended that the deficient notice should lead to the exclusion of the report. The LAT held that the SABS does not provide for the exclusion of an IE report as a remedy for non-compliance with s. 44(5) and that the LAT could not read such a remedy into the SABS. Furthermore, the LAT found that a claimant’s attendance at an IE constitutes a waiver of any recourse he/she may have had against the insurer for providing a deficient notice. Accordingly, the LAT stated that it is incumbent upon claimants to seek clarity regarding the medical reasons for an assessment before consenting to participate. Given the claimant’s failure to seek clarification with the insurer and her ultimate participation in the IE, the LAT decided that the corresponding IE report and Form 1 should be allowed. Addressing a second procedural issue, the LAT allowed the claimant to add a special award but found that non-compliance with notice requirements did not meet the threshold for a special award. The LAT held that: (a) deficient notices can only be addressed when they occur/prior to participation in the IE they correspond to and (b) assigning a remedy for a deficient notice would be akin to reading a remedy into the SABS where none exists. The claim for a special award was denied.

Temple v. Economical Mutual Insurance Company (21-005510)

Post author By tgp-admin
Post date June 5, 2023
No Comments on Temple v. Economical Mutual Insurance Company (21-005510)

The preliminary issue in dispute was whether the claimant was barred, pursuant to s. 55(1)(3) of the SABS, from proceeding with the application as the claimant failed to provide information to the respondent in accordance with s. 46.2 and s. 46.3 of the Schedule. The respondent made multiple requests for the particulars pertaining to the invoices for attendant care as well as a statutory declaration from the applicant and the service provider. The respondent submitted the claimant willfully ignored more than five requests made by the respondent seeking particulars of invoices submitted pursuant to s. 46.3. Moreover, the claimant agreed to provide the particulars when the parties attended the case conference and failed to do so. The adjudicator said the invoices provided by the service provider did not provide a breakdown of the services or the amount of time that was spent. Nor was there information as to when these services were provided. The invoices indicated the amount that was charged and the month. The adjudicator found the invoices lacked details of what services were provided to the claimant. The claimant returned an incomplete statutory declaration as she did not provide any of the information requested by the respondent and did not provide an explanation as to why she did not fill out the statutory declaration. The adjudicator reviewed the weekly logs and found the logs did not provide any information that would assist in determining what services were provided and the duration. Based on the adjudicator’s review of the statutory declaration, the weekly logs and invoices provided, it was difficult to ascertain whether or not the applicant had received the amount of care from the service provider in accordance with the Form 1. Therefore, it was reasonable for the respondent to request this information. The adjudicator ordered that the claimant was barred from proceeding with this application before the Tribunal and the application was dismissed.

Reid v. Aviva Insurance Company of Canada (20-008924)

Post author By tgp-admin
Post date May 25, 2023
No Comments on Reid v. Aviva Insurance Company of Canada (20-008924)

The claimant applied to the LAT seeking entitlement to attendant care benefits during two periods: April 2018 to May 11, 2022, and May 12, 2022, to date. In October 2018, the insurer had cancelled a s. 44 in-home assessment because the claimant’s counsel had advised the claimant no longer wanted to claim ACBs. In July 2020, the claimant requested payment for ACBs based on a 2018 Form 1 that had not been submitted via HCAI, and submitted an OCF-18 for a s. 25 in-home assessment. The insurer scheduled s. 44 assessments to address these benefits, but the claimant failed to attend. As a result of his failure to attend multiple assessments, the claimant’s entitlement to benefits was suspended in April 2021. In 2022, a second Form 1 was completed on behalf of the claimant, but this Form 1 was also not properly submitted via HCAI. Adjudicator Griffith found that the claimant was not entitled to ACBs because the Form 1s had not been properly submitted via HCAI, as required by the SABS and FSCO Guidelines, which meant there was no dispute between the parties and the LAT did not have jurisdiction to adjudicate the issue. In addition, Adjudicator Griffith found that the claimant would not otherwise be entitled to ACBs because he had not proven that he incurred ACB expenses. In this regard, the decision notes that the claimant’s wife testified that she was a retired PSW. At the time of the hearing, she had not received a paycheque for work as a PSW for 8 years, but she had volunteered as a PSW at a nursing home until the COVID-19 pandemic. The claimant’s wife testified that she had provided 24-hour AC services to the claimant since 2018. Adjudicator Griffith found that the claimant’s wife was not in the course of her employment, occupation, or profession in which she would ordinarily have been engaged but for the accident when she provided AC services to the claimant. In addition, Adjudicator Griffith found that the claimant failed to show that his wife sustained an economic loss as a result of providing AC services.

Hathaway-Warner v. TD General Insurance Company (20-002110)

Post author By tgp-admin
Post date March 22, 2023
No Comments on Hathaway-Warner v. TD General Insurance Company (20-002110)

The claimant, who had previously been deemed CAT pursuant to Criteria 8, sought entitlement to attendant care benefits up to the $6,000 monthly maximum. The respondent had approved entitlement to ACBs up to $2,642.91 per month. The claimant also sought modifications to her home (totaling $399,763) or, in the alternative, funding for the purchase of a new home to accommodate her disability (totaling $931,000). With respect to ACBs, Adjudicator Norris found that the claimant was entitled to ACBs up to $3,589.07 per month. While the Adjudicator preferred the claimant’s assessment over the respondent’s IE report, the calculation of quantum of ACBs had to be done in accordance with the Form 1 rates at the time of the accident in 2010. As such, the claimant’s maximum monthly entitlement to ACBs was $3,589.07. However, Adjudicator Norris went on to find that ACBS were not payable because there was no evidence of any incurred ACBs for the period in question. With respect to the proposed home modifications or alternative housing, Adjudicator Norris found that the claimant had not met her onus of demonstrating that the requested expenses were reasonable or necessary to eliminate the effects of her impairments as a result of the accident. The claimant’s limitations in daily living were primarily mental and behavioural. The overarching concern by the healthcare providers at the hearing was that the claimant’s home was disorganized and cluttered. The home modifications proposed were only a peripheral response to the disorganization and clutter compounding the claimant’s mental and behavioural challenges. Adjudicator Norris noted that the respondent had approved funding for a personal organizer, which was a more efficient way to reduce the main barriers faced by the claimant. Costs in the amount of $1,000 were ordered against the respondent for its conduct in not abiding by the page limits for submissions as ordered by the Tribunal and in obtaining a recording of the hearing without providing a timely copy to the claimant as required under the Rules.

ZR v. Gore Mutual Insurance Company (18-000017)

Post author By tgp-admin
Post date March 16, 2023
No Comments on ZR v. Gore Mutual Insurance Company (18-000017)

The respondent filed a request for a partial reconsideration of a decision in which the Tribunal found that the clamant was not statute barred from disputing the respondent’s denial of pre-104 attendant care benefits within the two year limitation period. The claimant argued that the Tribunal erred in law in its determination that the limitation period did not apply to the claimant’s entitlement to pre-104 ACBs and, in particular, that the Tribunal erred in its application and interpretation of the principle of discoverability as highlighted in Tomec. Adjudicator Hines granted the respondent’s request in part, finding that the Tribunal erred in law in determining that the claimant was not statute-barred from disputing the respondent’s denial of ACBs within the two-year limitation period. She agreed with the respondent that the Tribunal did not properly consider the fact that the claimant’s entitlement to pre-104 ACBs was not dependent on a CAT designation, as the claimant had not yet applied for CAT determination. As such, the principle of discoverability did not apply during this period and there was no barrier to the claimant disputing the respondent’s denial. However, Adjudicator Hines found that she only erred in applying the rule of discoverability to the respondent’s denial of the first Form 1, as the second Form 1 was denied within two years of the LAT Application. Consequently, the Tribunal’s decision was varied to indicate that the claimant was not entitled to payment of ACBs from September 2015 to June 2016.

Shwaluk v. Royal & Sun Alliance (20-000137)

Post author By tgp-admin
Post date March 15, 2023
No Comments on Shwaluk v. Royal & Sun Alliance (20-000137)

The claimant was injured in a 1994 accident. She received benefit under the relevant SABS until at least 1996. In 2015, the claimant contacted the insurer and requested that her claim be re-opened as her accident-related impairments had worsened, and that she required 24-hour supervisory care. The insurer agreed that care was required, but disputed the amount of time needed for care, and the amount of the indexed attendant care benefit. The claimant also disputed entitlement to various medical benefits for physical therapy and sought a special award. Vice Chair Todd agreed with the claimant’s proposed attendant care services and accepted that the claimant required supervisory care for severe tremors that impacted her physical safety and would prevent her from engaging with her environment in an emergency. Vice Chair Todd also awarded all the disputed treatment plans for the deteriorating physical condition the claimant demonstrated. Finally, Vice Chair Todd granted a 50 percent special award on ACBs and medical benefits, holding that the insurer’s decision to challenge the cause of the claimant’s injuries only upon re-opening the claim in 2015 (and not at any point during the original adjusting of the claim in the 1990s). The insurer’s behaviour suggested that it did not review the medical records on file from the 1990s. Additionally, the insurer took four years to fully investigate and respond to the 2015 request to re-open the claim.

Vaillancourt v. The Guarantee Company of North America (21-008125)

Post author By tgp-admin
Post date February 14, 2023
No Comments on Vaillancourt v. The Guarantee Company of North America (21-008125)

The claimant was previously deemed catastrophically impaired. He applied to the LAT to resolve a dispute concerning the quantum of certain benefits, including attendant care and home modifications. Prior to the accident, the claimant managed his own consulting company, was quite active, and regularly enjoyed doing housework. The insurer denied much of the claimant’s attendant care claim on the basis that the surveillance it collected and the assessments it conducted revealed that the claimant could perform such tasks without supervision and that his post-accident impairments were overstated. Adjudicator Lundy disagreed, preferring the claimant’s framework which focused on the claimant’s functional ability to perform predictably, consistently and reliably. Adjudicator Lundy emphasized that the insurer failed to account for these principles by concluding that the snippets of surveillance it collected showing the claimant performing housework and manual labour indicated that his condition was overstated, when, in reality, the surveillance and assessments undertaken by the insurer failed to account for the fact that the claimant struggled to perform these tasks and that his condition differed on a day-to-day basis. As a result, Adjudicator Lundy found that the claimant was entitled to attendant care benefits in the amount of $6,000.00 per month. The insurer denied the claimant’s proposed home modifications on the basis that his medical/rehabilitation funds were nearly exhausted. Despite eventually designating the claimant CAT, the insurer stood firm in its denial of the proposed home modifications. Adjudicator Lundy found that the claimant fulfilled his evidentiary burden of demonstrating that the home modification assessment and all but two of the proposed home modifications (valued at $87,809.00) fit the criteria of being necessary and reasonable. Despite the insurer’s refusal to pay for the proposed attendant care and home modifications, Adjudicator Lundy found that the claimant was not entitled to a special award. The insurer had triable concerns regarding whether many of the claimant’s proposed plans were necessary and agreed that the claimant was eligible for attendant care and some home modifications, albeit not to the valuations sought by the claimant.

Contact Us

Contact Us

Contact Us