Malitskiy v. Unica Insurance Inc. (2021 ONSC 4603)

The claimant appealed the LAT reconsideration in which the Tribunal held that he was only entitled to ACBs calculated by using the Form 1 hourly rate multiplied by the time received for each service (rather than the full Form 1 amount of $6,000), and the Tribunal’s decision that the claimant was not entitled to a special award. The Divisional Court dismissed the appeal. It held that the quantum of ACBs payable was properly determined using the hourly rates set out in the FSCO Guidelines and the Form 1, and that the insurer was not required to pay for attendant care services in excess of those hourly rates. The Court also held that the Tribunal’s reconsideration applied the proper principles of law (as described in Plowright v Wellington). A special award could not be granted simply because the insurer had made the wrong adjusting decision.

Dominion of Canada General Insurance Company v. Ridi (2021 ONSC 3707)

The insurer appealed the Tribunal’s decision that HST on attendant care benefits is payable above the $6,000 monthly maximum and that HST payments do not come out of the attendant care benefit limits. The Divisional Court allowed the appeal and reversed the Tribunal’s decision. The Court held that prior to the June 3, 2019 amendments, HST charged on attendant care benefits is paid out of the overall limits, and does not create entitlement to payments in excess of $6,000 per month. The Court held that the Tribunal erred in interpreting a Guideline as authorizing payment in excess of the statutory limits.

Butler v. Allstate Insurance (19-013444)

The claimant applied to the LAT disputing entitlement to attendant care benefits and medical benefits. The dispute proceeded by written hearing. Adjudicator Lake held that the claimant was not entitled to ACBs for the three periods claimed. For the first period, Adjudicator Lake dismissed the claim as the claimant sought benefits prior to submission of a Form 1, which was not permitted per s. 42. For the second period, Adjudicator Lake dismissed the claim because, while Allstate approved ACBs at the rate of $3,000 per month, the claimant did not provide any evidence that his son and attendant care provider sustained an economic loss nor that the claimant incurred the expenses as the claimant did not submit attendant care invoices. Adjudicator Lake did not find there was any evidence that Allstate withheld ACBs and therefore, she declined to deem the expenses incurred. As for the third period, Allstate reduced the claimant’s ACBs to $448.49 per month. Adjudicator Lake held that even if she accepted the claimant’s higher ACB rate, the claimant again failed to produce evidence that ACBs were incurred and that his son suffered an economic loss. Adjudicator Lake also dismissed the claimant for “planning, service” under the treatment plans, as this was not payable per the FSCO Professional Services Guideline.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.

A.A. v. Unifund Assurance Company (18-008999)

The insurer filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to attendant care benefits at a reduced rate and medical expenses. The insurer submitted that the adjudicator erred in making the inference that because the claimant met the threshold for catastrophic impairment, she continued to meet the test for attendant care benefits. The insurer further argued that the adjudicator failed to apply the proper “but for” test for causation. Vice Chair Maedel found that the adjudicator applied the “but for” test in relation to the attendant care benefits analysis, and had not made any errors in fact or law that would have otherwise led to a different decision on the attendant care issue. Vice Chair Maedel found that the adjudicator did make an error in fact and law when she relied on the insurer’s previous approval of travel expenses to find that the current therapy services in dispute were reasonable and necessary and caused by the accident. Previous approval of a benefit was found to be irrelevant and cannot determine causation. Each treatment plan should be evaluated on whether the treatment can be causally linked to the accident and whether the treatments is reasonable and necessary. Vice Chair Maedel found that s. 46(5) does not entitle a claimant to automatic payment of incurred benefits following a catastrophic impairment designation. A claimant must still demonstrate the treatment is causally related to the accident and is reasonable and necessary. In addition, Vice Chair Maedel found that a catastrophically impaired claimant is not entitled to medical benefits that were incurred prior to submission of an OCF-18, even when an insurer has repeatedly denied medical benefits because the non-CAT limit had been reached. The request for reconsideration was granted in part.

C.W. v. Jevco Insurance Company ( 18-000790)

This is a reconsideration decision of Adjudicator Shapiro. The insurer requested reconsideration of Adjudicator Shapiro’s initial decision wherein he found the claimant entitled to retroactive ACBs with interest. The facts of this case were unusual. The claimant was a pedestrian struck by a vehicle. She did not have her own insurance. The driver of the insured vehicle did not advise his insurer of the accident. The insurer first learned of the accident when the claimant initiated a tort claim two years after the accident. The claimant was catastrophically impaired as a result of the accident. The insurer took an off-coverage position in the tort claim. Therefore, for a significant period of time, the claimant did not seek attendant care benefits nor was she aware of her ability to claim accident benefits. Adjudicator Shapiro found that there was a reasonable excuse for the claimant’s delay in applying for benefits given the insurer’s coverage position. Adjudicator Shapiro held that the claimant actively investigated coverage issues and then filed her accident benefits claim as soon as the only possible insurer reversed its coverage position and acknowledged it insured the vehicle that hit her. Therefore, Adjudicator Shapiro dismissed the reconsideration application concluding that the claimant was entitled to retroactive ACBs and interest was payable. Adjudicator Shapiro also reminded the insurer that interest was compensatory and not punitive.

Salim v. Aviva General Insurance (19-006944)

The claimant was involved in a serious accident. He was skateboarding and was hit by a vehicle and suffered nasal, left elbow, pelvic, and sacral fractures, and psychological injuries. The claimant applied to the LAT disputing entitlement to NEBs, ACBs, and the full cost of partially approved medical benefits. Adjudicator Farlam dismissed the claimant’s dispute in its entirety. With respect to NEBs, Adjudicator Farlam noted that the claimant travelled post-accident, resumed full-time education, and resumed his participation in sports including judo and wrestling. Adjudicator Farlam held that while the claimant required help with some self-care tasks and had ongoing physical and psychological limitations, he did not meet the NEBs disability test. With respect to ACBs, Adjudicator Farlam noted that the claimant reported that his family cared from him. However, the claimant did not submit proof of incurred expenses nor economic loss. Adjudicator Farlam noted that the claimant did not submit OCF-6s, receipts, invoices, or any other proof of incurred benefits. Adjudicator Farlam dismissed the claimant’s submissions that ACBs be “deemed incurred” as he did not believe that ACBs were reasonable and necessary in light of the 8 month delay in submitting a Form 1. With respect to the disputed medical benefits, Adjudicator Farlam opined that the claimant had not proven that the balance of the treatment plans were reasonable or necessary.

R.K. v. Allstate Insurance (19-000502)

This is a reconsideration decision of Adjudicator Shapiro. The claimant sought reconsideration of the LAT’s dismissal of the claimant’s dispute for medical benefits. There was also a procedural issues as Adjudicator Shapiro made a finding on attendant care benefits entitlement in the first instance, despite the fact that this issue was withdrawn by the claimant. In his reconsideration decision, Adjudicator Shapiro held that while he erred in making a determination on attendant care benefits, this was not fatal to his original decision. Adjudicator Shapiro upheld his original decision on entitlement to medical benefits and amended the decision so that no order was made on attendant care benefits.

B.L.J. v. The Co-Operators Company (18-012005)

The claimant applied to the LAT seeking entitlement to medical benefits, IRBs, and ACBs. Prior to the accident, the claimant worked full-time at a restaurant. After the accident, she was off work for several months before starting a volunteer position at a residence for assisted living that transitioned into a part-time job. She continued to work in the new part-time position into the post-104 week period. Her previous employment was no longer available to her. Adjudicator Victor found that the post-104 part-time position was substantially different from the claimant’s pre-accident position in nature, status, and remuneration. Adjudicator Victor stated: “I have difficulty finding that [the claimant] is suited to the part-time job she is undertaking, let alone the high paced, full-time job she previously held.” Adjudicator Victor found that the claimant was entitled to IRBs to date (i.e., into the post-104 period). She was not entitled to ACBs or the in-dispute occupational therapy services.

H.C. v. Aviva Insurance Company of Canada (19-003063)

The claimant sought attendant care and medical benefits for chiropractic treatment and a psychological assessment plus interest. The insurer had paid various medical and rehab benefits as well as ACBs. It denied the ACBs after the 104 week mark as the claimant was not deemed catastrophically impaired. The insurer also denied the chiropractic treatment and psychological assessment based on IEs that determined they were not reasonable or necessary. The claimant argued that the insurer was required to resume payment of ACBs because she had made a catastrophic impairment application. In regard to ongoing ACBs, Adjudicator Boyce found while an OCF-19 had been submitted and CAT assessments had been scheduled, there was no dispute between the parties that the claimant had not yet been found catastrophically impaired and as submitted by the insurer, that issue was not before the Tribunal at this time. Adjudicator Boyce also found the insurer’s denial notice of ACBs clearly indicated the insurer’s position and since there was no dispute the claimant was not yet deemed catastrophically impaired, the exception under section 20(3) of the SABS was not triggered. It, therefore, followed that the claimant was not entitled to ongoing ACBs for the period in dispute that fell outside the two year mark by section 20(2) of the SABS. With respect to the disputed chiropractic treatment, Adjudicator Boyce agreed with the IE opinions based on the medical evidence. Adjudicator Boyce found the claimant did not satisfy her burden to show why another psychological assessment was reasonable and necessary or why the assessment was not a duplication of assessments already conducted in the same year and to date.