Category: Attendant Care Benefits

Unica Insurance Inc. v. K.B. (19-006165)

Post author By tgp-admin
Post date May 21, 2020
No Comments on Unica Insurance Inc. v. K.B. (19-006165)

The claimant had been paid ACBs by the insurer based on the alleged economic loss sustained by his mother, who was seeking employment at the time of the accident. In an earlier decision by the Tribunal, it was held that the mother did not suffer an economic loss. The insurer then sought repayment of $19,170.90 in ACBs on the basis that it was paid in error. The claimant refused to make repayment. Adjudicator Boyce held that section 52 applied and permitted the insurer to request repayment made in error for up to one year after the payments. He also held that the ACBs were being paid to the claimant, not his mother, so there was no defence that the benefits were not “paid to the person.”

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

Post author By tgp-admin
Post date May 21, 2020
No Comments on A.A. v. Unifund Assurance Company (18-008999)

The claimant had previously been deemed catastrophically impaired. She applied to the LAT seeking entitlement to ACBs, medical benefits that had been denied prior to her being deemed catastrophically impaired, and medical benefits that had been denied after she was declared catastrophically impaired. Adjudicator Punyarthi found that the claimant was entitled to ACBs, but based on surveillance and other evidence, determined that the amount payable was less than the amount being claimed. Pursuant to s. 38(2) of the SABS, Adjudicator Punyarthi found that the claimant was not entitled to payment of pre-CAT medical benefits that were incurred prior to the submission of treatment plans. The insurer raised a limitation argument against a claim for pre-CAT medical benefits that were denied more than two years before the claimant’s LAT application. Adjudicator Punyarthi found that the claimant was not barred by virtue of a missed limitation period, based on the Court of Appeal decision in Tomec. Adjudicator Punyarthi found that pelvic floor physiotherapy was not payable as there was insufficient evidence to establish on a balance of probabilities that the impairment was a result of the accident.

L.M. v Portage La Prairie Mutual Insurance Company (19-004596)

Post author By tgp-admin
Post date May 19, 2020
No Comments on L.M. v Portage La Prairie Mutual Insurance Company (19-004596)

The claimant disputed her entitlement to attendant care benefits and various medical benefits. Adjudicator Boyce determined that the claimant was not entitled to ACBs for the period in dispute, as they are not reasonable and necessary and the claimant did not provide evidence that the services were incurred. The claimant offered no evidence or substantive submissions on whether attendant care services had been incurred, and provided no invoices, promissory notes, or affidavits speaking to services provided, the level of care, or the rate of care. Adjudicator Boyce also found that the disputed treatment plan for assistive devices was not reasonable or necessary, as the claimant provided no substantive analysis on why the specific devices were required to address his specific impairments, and it was not clear whether the claimant ever obtained any of the proposed devices which undermined his argument as to whether they were reasonable and necessary. Adjudicator Boyce did find a psychological treatment plan to be reasonable and necessary, finding enough evidence on a balance of probabilities that the claimant’s pre-existing psychological impairments were exacerbated by the accident and likely resulted in new, accident-related psychological issues that warrant treatment.

J.B. v Motor Vehicle Accident Fund (19-003638)

Post author By tgp-admin
Post date May 11, 2020
No Comments on J.B. v Motor Vehicle Accident Fund (19-003638)

The claimant disputed her entitlement to attendant care benefits and various medical benefits. Adjudicator Paluch found that the claimant was not entitlement to attendant care for the period in dispute because she did not submit a Form 1 in accordance with the SABS nor did she demonstrate that her expenses were incurred. However, Adjudicator Paluch determined that the remaining amounts for two partially approved physiotherapy treatment plans as the respondent failed to provide medical reasons and comply with section 38(8) of the SABS. The insurer simply advised that the treatment “appeared excessive”, without providing any details or particulars of what part of the services was excessive and why.

J.P. v. Aviva General Insurance (19-004854)

Post author By tgp-admin
Post date May 5, 2020
No Comments on J.P. v. Aviva General Insurance (19-004854)

The claimant sought attendant care benefits for two separate periods post-accident, a special award and interest on overdue payments. The insurer argued that the claimant failed to provide proof of expenses incurred for the periods claimed and his wife, who was a retired nurse at the time that she provided care to the claimant, failed to provide evidence of economic loss. Adjudicator Boyce held that the claimant was not entitled to attendant care for either period in dispute as the claimant had not shown that the service provider met the definition under the SABS or that the provider sustained an economic loss. Adjudicator Boyce also denied the claim for an award as he found no evidence of bad faith.

R.T. v Coseco Insurance Company (18-004783)

Post author By tgp-admin
Post date April 14, 2020
No Comments on R.T. v Coseco Insurance Company (18-004783)

The claimant filed a motion to withdraw some of the issues listed for an upcoming LAT hearing on a without-prejudice basis. The insurer submitted that the issues not identified for withdrawal (namely attendant care benefits) were still in dispute, while the claimant submitted that the issue of attendant care benefits was previously determined in a preliminary issue decision that was upheld on reconsideration. Adjudicator Punyarthi concluded that the claimant was permitted to withdraw issues without prejudice, noting that there was no basis for imposing a generalized “with prejudice” withdrawal of issues in this case. If an issue is brought back, the claimant would have a right to have that issue considered and decided on the merits. Adjudicator Punyarthi also determined that attendant care benefits were not an issue in dispute because the issue had already been decided and upheld on reconsideration, and the Tribunal could not re-hear the issue at this stage.

Z.S. v Intact Insurance Company (19-000175)

Post author By tgp-admin
Post date April 9, 2020
No Comments on Z.S. v Intact Insurance Company (19-000175)

The claimant was deemed catastrophically impaired, and sought entitlement to attendant care benefits which were denied by the insurer on the basis that the claimant’s alleged service provider, his wife, did not meet the requirements for a provider under the SABS and did not incur an economic loss. The claimant’s wife was laid off by her employer as a result of the company’s bankruptcy prior to the accident. The claimant argued that but for the accident, his wife would have returned to work but could not due to her having to provide attendant care to the claimant. Adjudicator Boyce found that the claimant was not entitled to attendant care benefits for the period in dispute. The 39 invoices provided in support of the claim were identical and void of details of the expenses allegedly incurred in providing care, with no mention of how many hours of attendant care the claimant’s wife provided on a daily, weekly, or monthly basis. Adjudicator Boyce stated that without this information, it was difficult to analyze what the claimant’s wife did, for how long she did it, and what economic loss she incurred as a result.

J.N. v Co-Operators General Insurance Company (18-012227)

Post author By tgp-admin
Post date April 9, 2020
No Comments on J.N. v Co-Operators General Insurance Company (18-012227)

The claimant submitted a LAT Application in August 2017 disputing attendant care benefits, among other benefits. The parties resolved the issues in dispute and entered into a partial settlement agreement. In 2018, the claimant filed a second LAT Application disputing entitlement to attendant care benefits. The insurer brought this preliminary issue hearing, arguing that the claimant was barred from pursuing his claim for attendant care benefits in this 2018 Application as a result of the release and partial settlement disclosure notice arising from the 2017 Application. The claimant argued that he did not settle his entitlement to attendant care benefits beyond two years from the date of the accident, and thus, the settlement following the 2017 Application did not preclude him from proceeding with the 2018 Application. Vice Chair Marzinotto did not accept the claimant’s argument, noting that the 2017 Application indicated that the claimant was claiming attendant care benefits on an “ongoing” basis and that the settlement documents clearly referred to “any and all claims for attendant care benefits from July 5, 2016 to date and ongoing”. As such, Vice Chair Marzinotto dismissed the application.

M.Y. v Wawanesa Mutual Insurance Company (19-003973)

Post author By tgp-admin
Post date April 7, 2020
No Comments on M.Y. v Wawanesa Mutual Insurance Company (19-003973)

The insurer brought this preliminary issue hearing arguing that the claimant was barred from disputing her entitlement to medical/rehabilitation benefits beyond the MIG and attendant care benefits on the grounds that she failed to attend two section 44 IEs. The claimant took the position that she was not required to attend the IEs because the first IE was for the purposes of determining the applicability of the MIG, which is not permitted, and the second IE was scheduled as a substitute for the submitted Form 1. With respect to the first IE, Vice Chair Farlam held that scheduling an IE to address doubt about whether the claimant’s injuries fall outside the MIG does not violate the SABS. With respect to the second IE, Vice Chair Farlam found that the insurer was merely exercising its right under the SABS to assess the claimant as part of determining whether the claimant was entitled to attendant care benefits. As such, Vice Chair Farlam concluded that the claimant was barred from proceeding with her application, noting that counsel’s position that the claimant was not obligated to attend either IE was incorrect and that an erroneous legal position was not a reasonable explanation for non-attendance at IEs.

Y.K. v. Aviva General Insurance Company (18-003926)

Post author By tgp-admin
Post date March 25, 2020
No Comments on Y.K. v. Aviva General Insurance Company (18-003926)

The claimant suffered a brain injury and was deemed catastrophically impaired as a result of a 2011 accident. He received personal care from his brother, who left multiple part-time jobs to care for him. The Form 1 supported $6,000 per month in ACBs, but the claimant’s brother suffered an economic loss of $2,100 per month based on his income in the year prior to the accident; however, following the 2014 amendments to the SABS, the insurer paid $1,528.91 per month based on the average income earned by the brother in the three years prior to the accident. In 2018, the claimant hired a professional service provided in order to utilize the full $6,000 per month Form 1. The insurer received an invoice, but never paid it. The claimant sought entitlement to the full Form 1 amount, arguing that it was “deemed incurred” or that the 2014 amendments to the SABS did not apply. He also sought entitlement to HK expenses and a special award. Adjudicator Lester concluded that the 2014 amendments to the SABS applied and that the claimant was only entitled to the economic loss suffered by his brother. However, she accepted that lost opportunities and “fringe benefits” (IE, CPP, extended health care benefits) could form the basis of an economic loss, but required a sufficient evidentiary basis. The claimant did not have sufficient evidence to prove the projected scenarios he put before the Tribunal, so his economic loss was limited to his foregone wages. Adjudicator Lester also found services by the professional to be deemed incurred for a period of 10 months (the time between submission of the invoice up to the payment of the invoice). Adjudicator Lester awarded HK expenses, finding that the claimant was responsible for cleaning tasks prior to the accident and that he could no longer perform such tasks. Further, services were incurred because the claimant’s brother had given up his work. Finally, the adjudicator held that the insurer improperly withheld ACBs by paying only $1,528.91 per month. A special award of 50 percent based on the shortfall of $571.09 per month was granted for services provided by his brother, all amounts provided by the professional service provider which were deemed incurred, and all awarded HK expenses.

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