Category: Attendant Care Benefits

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)

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)

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.

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)

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)

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)

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.

Ciyayi v. Economical Insurance Company (19-005222)

The claimant suffered from a non-catastrophic impairment and applied to the LAT for attendant care and medical benefits. The claimant sought repayment for both non-professional and professional attendant care services. To establish that expenses for non-professional attendant care were “incurred” under s. 3(7)(e) of the SABS, a claimant must prove that a non-professional service provider sustained an economic loss resulting from their provision of goods and services “while, and as a result of providing attendant care.” The claimant submitted that his brother, who he alleged quit his job in order to care for him, was a non-professional caretaker and sustained economic loss while providing care for him. The insurer argued that the claimant’s brother did not provide evidence indicating that he left his job to care for the claimant. Vice-Chair McGee found that the claimant failed to provide evidence showing that economic loss occurred, as the claimant’s brother quit his job prior to the accident and there was no evidence suggesting that he had otherwise foregone employment. In seeking repayment for professional attendant care, the claimant provided multiple invoices. Vice-Chair McGee held that it is impossible to determine whether professional attendant care services meet the definition of “incurred” under s. 19(3) of the SABS where a claimant fails to provide particulars regarding the nature of the professional services provided and/or the identification and occupations of the chosen service providers. Given that the claimant abstained from providing such evidence, Vice-Chair McGee rejected his claim for professional attendant care benefits. Vice-Chair McGee also concluded that the claimant failed to establish entitlement to medical benefits.

Hassan v. Aviva Insurance Company of Canada (21-000811)

The claimant disputed entitlement to NEBs, ACBs, and a special award. As a preliminary motion, the insurer sought to exclude the claimant’s CAT reports because they were not disclosed in accordance with the LAT order timelines. Adjudicator Prowse excluded the CAT reports because the documents were not exchanged in accordance with the order, and because CAT was not an issue in dispute at the hearing. As to the disputed benefits, Adjudicator Prowse held that the claimant did not meet the burden of proving entitlement.

Khan v. Aviva Insurance Company of Canada (21-003298)

The claimant disputed entitlement to a catastrophic impairment designation, attendant care benefits of $6,000 per month, and various medical benefits. The insurer argued that the claimant’s impairments were a result of subsequent injuries and events in his life. Adjudicator Lester concluded that the accident was not the “but for” cause of the claimant’s impairments, and he did not suffer a catastrophic impairment. The subsequent accident and life stressors still would have occurred and led the psychological diagnosis preventing him from engaging in life activities. For the same reasons, the claims for ACBs and medical benefits were dismissed.

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