The Dominion of Canada General Insurance Company v. Ridi (2022 ONSC 564)

The claimant appealed the Divisional Court’s decision that HST payments on attendant care benefits were included in the $6,000 monthly limits. The Court dismissed the appeal and held that the HST on attendant care services was included in the monthly limit, and was not payable on top of the limit. The Court found that sections 14 and 19, when read together, did not support the interpretation advanced by the claimant and the provisions were not ambiguous. The Court also held that the FSCO Bulletin stating that HST was not included in the SABS limits was not incorporated into the SABS, and was contradicted by the Cost of Goods Guideline, which stating that HST was a reasonable expense and that reasonable expenses were subject to the maximum limits.

Morrisey v. Wawanesa Insurance Company (2022 4398)

The claimant was injured in an accident in 2000, while the 1996 SABS applied. In 2018, the claimant filed a LAT dispute for (among other things) retroactive attendant care benefits. The Tribunal found the claimant was not entitled to retroactive ACBs because he had no excuse for the late Form 1. The Tribunal also held that the incurred expense definition applied to the claimant’s ACBs going forward, and that he was entitled to interest at the rate of 1 percent per month for overdue ACBs. The claimant appealed all three findings. The Divisional Court granted the appeal with respect to interest, holding that the Divisional Court decision in Federico v. State Farm, and the Court of Appeal’s decision in Sidhu v. State Farm, governed the outcome and that two percent interest applied for all claims related to accidents prior to September 2010. The Court dismissed the appeal on the other issues. The Court agreed that the Tribunal correctly held that the claimant was required to show why there was a delay in submitting his Form 1, and that the Tribunal’s conclusions related to the claimant’s arguments were questions of fact that were not open to appeal. The Court also agreed that the Tribunal correctly held that the incurred expense definition applied to all ACBs claims after September 2010 because the definition was a procedural change rather than a substantive change to the SABS.

Bagla v. TD Ins. Meloche Monnex (20-004159)

A request for reconsideration of a preliminary issue decision was filed by the claimant. The preliminary issue decision found the claimant was statute barred for failure to appeal the denial of attendant care benefits in the two year limitation period. In this case, the claimant was involved in two accidents: one on March 3, 2014 and the other on May 25, 2015. He sought ACBs. In regard to the 2014 accident, the insurer denied ACBs by letters dated January 12 and April 17 , 2015. The claimant filed his application on January 17, 2020. In regard to the 2015 accident, the insurer denied ACBs by letter dated April 1, 2016 and the claimant filed his application on June 28, 2019. A case conference was held on November 25, 2020 for both accident claims. The claimant was represented by counsel. An order set down a preliminary issue hearing for March 8, 2021 to determine whether the claimant was statute barred from disputing his ACBs for both accidents. A Notice of Written Hearing was sent to the parties January 25, 2021. Written submissions for the preliminary issue hearing were due February 19, 2021. The insurer filed its submissions and evidence on February 4, 2021. One day prior to the deadline for written submissions, the claimant’s counsel notified the insurer and LAT that she was no longer representing the claimant. The claimant did not file his submissions on the due date. The LAT was unsuccessful in contacting the claimant and a decision was released April 29, 2021. The claimant reportedly did not know about his former counsel’s lack of submissions until several months later. The claimant retained new counsel who immediately filed a motion for an extension to file reconsideration submissions on August 13, 2021. The motion was heard and a decision was released December 6, 2021. The claimant’s request for an extension was granted and the claimant filed this reconsideration request on January 6, 2022. The claimant submitted that he was deprived of his right to participate in a hearing that was significant to his well-being and the evidence regarding the circumstances of his ACBs claim denial was not before the Tribunal and would likely have affected the result. He submitted that the doctrine of discoverability applied to his claims and it was an error to statute bar his claims. The claimant relied on the Tomec decision amongst others. He submitted alternatively that the Tribunal exercise its discretion under s.7 of the LAT Act to allow his claim to proceed to a substantive hearing. The insurer argued that the claimant’s assertion that he was denied procedural fairness was baseless and was rectified by allowing him to make submissions on reconsideration. The insurer also submitted that the claimant did not show how the previously unavailable evidence would have changed the result of the decision. In addition, no rationale was provided to overturn the decision using section 7 of the LAT Act. Vice Chair Boyce reasoned that procedural fairness included participatory rights with an opportunity for those affected by the decision to put forward their views and evidence to be considered. He indicated that the claimant should not suffer for the mistake of his counsel when the Tribunal could rectify the mistake. Vice Chair Boyce found that the claimant was unable to participate in the first instance through no mistake of his own. The claimant did not become aware of the Tribunal’s decision until three months after its release. Vice Chair Boyce granted the claimant’s request for reconsideration under Rule 18.2(a). Vice Chair Boyce accepted that he had made his initial decision solely on the evidence of the insurer and reliance on one party’s evidence affected the result. The claimant was seeking a catastrophic impairment designation at the substantive hearing. Vice Chair Boyce indicated that the doctrine of discoverability in Tomec applied in this case, and that if the Tribunal were to uphold the original decision, the claimant would be unable to claim post-104 ACBs. The preliminary decision of April 29, 2021 was set aside and the claimant was allowed to proceed with his ACBs claim at the substantive hearing.

Gichuki v TD Insurance Meloche Monnex (20-004631)

The claimant sought entitlement to attendant care benefits in the amount of $7,644.34, less $225.75 approved by the insurer, per month, from May 22, 2018 and ongoing. Vice Chair McGee found that attendant care benefits were not payable prior to October 31, 2019 when she submitted an Assessment of Attendant Care Needs (Form 1), pursuant to section 42(5) of the SABS. In submissions, the claimant significantly narrowed the scope of her claim, seeking payment only for her incurred expenses, equal to $220.32 per month. The attendant care services were provided by the claimant’s friend and personal support worker. Despite their friendship, Vice Chair McGee accepted that the provider qualified as a professional service provider who provided the claimant with services in the course of a profession in which she would ordinarily have been engaged but for the claimant. The timesheets provided established that the claimant received a total of 33 hours of attendant care between November 2020 and February 2021. As such, Vice Chair McGee found that the claimant was entitled to be reimbursement for 33 hours of attendant care expenses, payable at a rate of $14.00 per hour (per the Rate Guideline), for a total of $462.00, with interest.

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.

Powell v. Aviva Insurance Company of Canada (19-012928)

The claimant sought a catastrophic impairment designation, entitlement to ACBs, and medical benefits for occupational therapy and vision therapy. Adjudicator Grieves found that the claimant suffered a Class 4 Marked Impairment in adaptation, and therefore met the catastrophic impairment definition. The accident was a relatively minor rear-end collision, but resulted in the claimant suffering from a mild TBI, and psychological injuries. She continued to work after the accident, but only on a part-time basis. She lacked motivation to engage in daily routines, showered only once per week, had trouble preparing meals, and the claimant’s home was scattered with garbage and cat feces. The claimant experienced multiple periods where she needed to live with her mother because she could not manage independent living. Adjudicator Grieves found the claimant was entitled to ACBs of $644.63 per month for assistance with meal preparation and bathroom and bedroom hygiene. She was critical of the insurer’s assessor, who considered only the claimant’s physical abilities and failed to consider the claimant’s psychological barriers. Medical benefits for aquatherapy was dismissed as it was duplicative, and the claimant already had access to a pool and personal trainer. A treatment plan for a professional organizer and a treatment plan for vision therapy was awarded.

Luluquisin v Aviva Insurance Company of Canada (20-010381)

The claimant (who was catastrophically impaired) sought entitlement to attendant care benefits at the rate of $6,000 per month as well as various medical benefits. Adjudicator Farlam accepted the insurer’s monthly attendant care rate ($1,029.42 per month) as the claimant failed to establish with medical evidence that $6,000 per month in attendant care services was reasonable and necessary, had failed to attend an IE, and the treatment provider had failed to respond to a section 46 request for additional information. Adjudicator Farlam found that the claimant was entitled to previously partially approved amounts for case management services and chiropractic treatment (if not already paid), but not the denied remaining balances. She further found that the remaining disputed benefits were not payable, given the lack of evidence to support that the proposed services were reasonable and necessary.

Amorim v. Jevco Insurance (19-012408)

The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $7,522.85 per month. The claimant was involved in a serious motor vehicle accident in 2012. In 2017, the insurer determined that the claimant was catastrophically impaired as a result of psychological impairments. The disputed attendant care services included feeding, cueing, medication management, and 22.7 hours per day for supervision. The primary issue was whether 24-hour per day supervision was reasonable and necessary. The applicant relied on testimony from multiple treating practitioners who noted that the claimant had severe panic attacks and bouts of rage when alone, and that he had been unable to stay in his home alone as a result. The insurer relied on experts, who recommended more intensive cognitive behavioral therapy rather than 24-hour supervision. Adjudicator Grieves found that the claimant had serious cognitive and psychological issues that resulted in safety concerns, and that the proposed attendant care services were reasonable and necessary, at least until recommended therapy was successful. The claimant was entitled to attendant care benefits up to the statutory maximum, inclusive of 24-hour supervision.

S.V. v. Wawanesa Insurance (18-009702 and 20-001009)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment, IRBs, ACBs, and various medical benefits. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment as a result of the accident. While the claimant did sustain a psychological impairment in the accident, he sustained only Class 2 Mild Impairments or Class 3 Moderate Impairments due to the accident. The claimant maintained his social contacts, and he communicated with assessors in an effective and pleasant manner; there was no evidence linking the claimant’s psychological impairments with his ability to perform activities of daily living; and the claimant remained independent with sustaining an ordinary routine without supervision, and used his judgment to make simple decisions. Adjudicator Hines was critical of the claimant’s experts, as they did not review the claimant’s pre-accident medical records which showed significant pre-accident health issues, and relied mainly on the claimant’s self-reporting. The claim was IRBs was denied, as the claimant failed to prove how his psychological impairments affected his ability to work. He also failed to submit financial records in support of a loss of income. The claim for ACBs was denied as the claimant’s Form 1 assessor relied upon the claimant’s self-reporting and she did not review the pre-accident medical records, nor did she understand the extent of the claimant’s pre-accident health issues. The medical benefits were denied because the claimant failed to prove the connection between the proposed treatment and the accident.

J.D. v. Intact Insurance Company (19-002767)

The claimant was involved in a motor vehicle accident in 2018. As a result of the accident, his leg was amputated. His injuries were deemed catastrophic by the insurer. The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $6,000 per month, housekeeping expenses, and numerous medical and rehabilitation benefits (including the cost of a home modification assessment in the amount of $8,858.78, the cost of alternative accessible housing in the amount of $1,126,560, and the cost of alternative short-term housing in the amount of $19,200). The proposed attendant care services included 24-hour supervision, which was recommended by an OT who opined that due to the acute nature of the applicant’s injuries he was incapable of responding to an emergency and thus required care of 24 hours per day. Adjudicator Manigat found that the claimant was entitled to attendant care benefits in the amount of $3,000.00 per month. Adjudicator Manigat was not persuaded that the claimant required 24-hour care, as he had been able to stay at a house alone and travel out of the country twice without attendant care services or supervision. Adjudicator Manigat found that the claimant required assistance with some but not all housekeeping tasks and was entitled to $50 per week for housekeeping benefits, rather than $100 per week. The claimant was found entitled to the majority of the disputed medical and rehabilitation benefits, including provider mileage costs, parking costs, case management services, medical marijuana, an iPhone, and $8,858.78 for the Adapt-Able Design housing assessment. The claimant was not entitled to social work services that duplicated approved psychotherapy services and was not entitled to further psychological services as he failed to attend previously approved treatment sessions. The claimant was not entitled to the cost of alternative accessible housing in the amount of $1,126,560. Adjudicator Manigat found that while the claimant did require alternative housing to meet his disability needs, the report recommending alternative accessible housing failed to take into consideration a home that the claimant already co-owned with his siblings, which was a “potential, legitimate option.” The claimant was found entitled to a treatment plan proposing alternative short-term housing in the amount of $19,200.