Category: Attendant Care 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.

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.

Stewart v Travelers Canada (21-008891)

This is a preliminary issues decision addressing whether the claimant was barred from applying to the LAT for attendant care benefits under s. 55(3) of the SABS for failure to comply with s. 46.2(1) of the SABS (i.e., the duty of a provider to provide information). The insurer argued that there was non-compliance with s. 46.2(1) as the attendant care provider had failed to provide documents specifically outlined in a case conference order, including a CV, tax returns, an HST number, and a breakdown of attendant care services provided. The claimant argued that the insurer had been provided with sufficient information to determined that ACBs had been incurred. Adjudicator Kaur agreed with the claimant, finding there was sufficient information to determine ACBs had been incurred and that the insurer had received a breakdown of the types of services provided and the duration for each service. The claimant was not barred from proceeding to a LAT hearing.

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.

Simpson v. Nordic Insurance Company of Canada (21-000662)

The claimant applied to the LAT seeking entitlement to attendant care benefits, rehabilitation benefits, and a special award. The claim for ACBs was made for two distinct periods. The LAT found the claimant was not entitled to ACBs for the first period claimed as the benefits had not been incurred. The LAT did not accept that the claimant did not receive proper notice that ACBs had been approved and declined to deem the expenses to have been incurred. The approval had been sent to the claimant by letter, which was also faxed to the claimant’s counsel. The claimant was entitled to the disputed rehabilitation benefits and ACBs for the second period claimed. A special award was granted. The LAT found the insurer gave unreasonable weight to s. 44 opinions (compared to other medicolegal reports and the records of treating practitioners) when denying ACBs and life skills training. The LAT found the insurer’s decision was unreasonable and lacked transparency.

Balachandran v. Economical Insurance (21-014940)

The claimant applied to the LAT in order to dispute the hourly rates for ACBs being prescribed by his insurer. Adjudicator Kaur found that the LAT did not have jurisdiction to rule on the matter because there was no dispute regarding the claimant’s eligibility to a benefit under the SABS. The amount being claimed in his Form 1 for ACBs was approved by the insurer. The insurer requested that the claimant submit an expense claim so that he could be compensated for his out-of-pocket expenses for ACBs. The claimant argued that the LAT possessed jurisdiction as the insurer had reportedly disputed the hourly rate at which ACBs were to be paid. Adjudicator Kaur ruled that the LAT did not have jurisdiction to hear the application because neither the claimant’s entitlement to ACBs, nor the amount of the ACB being approved was in dispute. The claimant’s application was dismissed.

Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (2022 ONSC 6346)

The claimant appealed the Tribunal’s decision regarding the quantum of ACBs awarded, and the date interest began to accrue. The claimant also sought judicial review of a FSCO decision relating to housekeeping expenses. The Court dismissed the appeal, holding that the Tribunal did not commit any legal errors in its award of ACBs. The Court agreed that basic supervisory care was generally not payable for the cost of emotional support. The Court also accepted that the Tribunal’s denial of attendant care benefits for cleaning tasks that overlapped with housekeeping chores was appropriate. The Court agreed with the Tribunal’s holding that interest on ACBs only began from the date upon with the Form 1 was submitted to the insurer, as the SABS did not require payment of ACBs prior to submission of the Form 1. The Court also dismissed the judicial review of the FSCO decision, holding that FSCO correctly found itself functus officio in relation to a claim for housekeeping expenses after a consent order was made dismissing the claim, following a settlement between the claimant and the insurer.

Majerczyk v. Economical Mutual Insurance Company (20-004327)

The claimant applied to the LAT seeking CAT determination under criteria 7 and 8 and entitlement to post-104 IRBs, ACBs, and various medical benefits. Vice-Chair Johal found that the claimant was not catastrophically impaired and was not entitled to ACBs, assistive devices, the in-dispute psychology treatment, or occupational therapy treatment. The claimant was entitled to IRBs, medical marijuana, lidocaine injections, physiotherapy, and a psychology assessment. With regards to CAT determination, Adjudicator Johal stated that while it was clear the claimant suffered impairments as a result of the accident and had limitations and restrictions to her daily life, simply showing that she was restricted and limited is not sufficient to meet the CAT test under the SABS.

Nesbesnuik v. Aviva General Insurance Company (20-007540)

The claimant applied to the LAT seeking entitlement to an attendant care benefit (“ACBs”) and assistive devices including a lawnmower with snow blower attachment, cell phone, and computer. Adjudicator Pahuta found that the claimant had failed to establish that ACBs had been incurred. The only evidence before the Tribunal was a written statement authored by the claimant, which was insufficient. Adjudicator Pahuta further concluded that the disputed lawnmower would fall under the housekeeping and home maintenance activities exception of s. 16(3)(l)(ii) meaning that it would not be payable as a rehabilitation benefit. Regarding the cell phone and computer, the Tribunal determined that the claimant failed to establish that either device was reasonable and necessary. Adjudicator Pahuta relied heavily on the fact that the claimant had failed to establish why these specific branded items were required and whether these expenses were truly considered accident-related. The application was dismissed.

Carleton v. Unica Insurance Inc. (20-002008)

The claimant was injured in an accident and applied for an attendant care benefit but was denied on the basis that it was not reasonable or necessary. Vice Chair Johal found that the claimant was entitled to 315 minutes per week of attendant care that had been incurred for feeding and 45 minutes per week for attendant care for hygiene. Relying on the findings from the claimant’s occupational therapist, Vice Chair Johal found that the attendant care for feeding and hygiene was reasonable and necessary based on the claimant’s self-reported dizziness and decreased balance. Vice Chair Johal held that the claimant was not entitled to 1260 minutes per week (3 hours per day) of basic supervisory care. The basic supervisory care was not reasonable or necessary as the claimant testified that she was able to identify and respond to an emergency situation. Regarding whether the benefit was incurred or not, the claimant’s mother and husband provided attendant care. However, the claimant failed to produce any evidence of an economic loss of the claimant’s husband or mother, nor was there any evidence that either of them were providing attendant care assistance in the course of the employment, occupation or profession in which they would ordinarily have been engaged. As such, Vice Chair Johal found that the attendant care benefits were not incurred.