Category: Attendant Care Benefits

A.L. v. Aviva Insurance Canada (18-001867)

The claimant sought entitlement to ACBs, transportation expenses, and interest. Adjudicator Grant concluded that the claimant was entitled to attendant care benefits from February 22, 2016 to August 11, 2017 in diminishing amounts over that period. He found it unreasonable for the attendant care need to increase over time, and rejected the claimant’s Form 1s that increased over time. He also awarded the cost of transportation expenses in accordance with the Transportation Expense Guideline because the claimant suffered driving anxiety and was prohibited from driving while on pain medications. The awarded amounts were the amounts set out in the treatment plans, rather than the totals claimed by the claimant.

L.R. v. RSA Insurance Company of Canada (18-002989)

This preliminary issue addressed the limitation period in the context of a claim for IRBs and ACBs. The insurer denied the benefits more than two years prior to the LAT application. The claimant was found in June 2016 to lack capacity to instruct counsel and to require the assistance of a litigation guardian. Adjudicator Punyarthi held that the provisions suspending the Limitations Act did not apply to the Tribunal’s proceedings. However, Adjudicator Punyarthi concluded that section 7 of the LAT Act permitted the extension of the limitation period until the time his LAT application was filed. The adjudicator wrote that the reason for the delay was explained and that there was a bona fide intention to apply to the LAT within the two-year time period. There was also no prejudice to the insurer and there was potential merit to the claims.

P.D. v. Western Assurance Company (17-005066)

The insurer sought reconsideration of the Tribunal’s decision that the limitation period did not bar the claims for attendant care benefits and medical benefits. Associate Chair Batty granted the reconsideration, reasoning that the denials were “clear and unequivocal.” The denials were based on the claimant having exhausted her non-catastrophic medical benefits limits.

D.M. v. Aviva Insurance (17-003463)

The insurer sought reconsideration of the Tribunal’s decision to award ACBs beyond the 104 week mark despite the claimant not being designated catastrophically impaired, and the decision to deem the attendant care services incurred. Adjudicator Boyce granted the reconsideration. He held that the Tribunal made a significant error of law in awarding ACBs beyond the 104 week date, and that the claimant’s entitlement ended as of the 104 week date. Further, the adjudicator held that the Tribunal’s decision to deem the attendant care services “incurred” was a significant error in law because the Tribunal had not made any findings that the insurer unreasonably withheld or delayed the payment of ACBs.

D.M. v. Wawanesa Mutual Insurance Company (18-003314)

The claimant was catastrophically impaired as a result of a motorcycle accident. He sought entitlement to $6,000 per month in ACBs and entitlement to further physiotherapy. Adjudicator Hines awarded $3,047.29 per month in ACBs. The primary dispute was whether the claimant required 24/7 care. The adjudicator concluded that the claimant did not require 24/7 care. The claimant had the capability to function with a degree of independence. He was attending college and passing courses. While the claimant may have had a crisis in 2017, he made positive improvements and did not require 24-7 supervision for his safety. The claimant was awarded ACBs for dressing, grooming, meal preparation, hygiene, exercise, and some supervisory care for four hours per day. The attendant care services were incurred, as a professional service provided was providing the services. The claimant was also awarded part of one of the two treatment plans for physiotherapy.

Applicant v. Toronto Transit Commission (17-009121)

The claimant sought entitlement to NEBs, ACBs, medical benefits, and a special award. Adjudicator Boyce denied entitlement to NEBs and ACBs, but awarded two medical benefits for physiotherapy and chiropractic therapy. With regard to NEBs, the adjudicator noted that the claimant’s grades increased after the accident, she did not require assistance with personal care more than two months after the accident, and she continued to maintain a social life. With regard to personal care, the claimant received some assistance from her mother in the first few weeks after the accident, but did not require long-term care. Further, the claimant’s mother did not suffer an economic loss as a result of providing care. The claimant also failed to provide a Form 1 before such services had ceased. Finally, the adjudicator agreed that pain relief was a valid goal and that further treatment was reasonable and necessary. A special award of $1,000 was granted because the insurer had delayed payment of earlier benefits and was not transparent with the claimant regarding her claim.

M.G. v. The Guarantee Company of North America (17-008687)

The claimant sought entitlement to NEBs, ACBs, and various medical benefits. Adjudicators Punyarthi and Watt dismissed the claims. They held that the claimant continued to engage in most of her pre-accident activities, despite doing so with pain. They rejected the claimant’s Form 1, as well as the invoicing provided by the claimant which appeared to be completed by the claimant rather than the service provider. The claim for an attendant care assessment was found not reasonable and necessary, since the claimant was not entitled to ACBs. Further physical therapy was not awarded based on the claimant’s evidence that it did not provide pain relief. Botox injections and psychological treatment were similarly rejected.

Applicant v. Toronto Transit Commission (17-005228)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Parish dismissed all claims. She held that the claimant was still able to perform many of the activities she engage in prior to the accident, albeit with some pain and at a reduced frequency. Adjudicator Parish also reviewed surveillance which showed the claimant engaging in normal activities of daily living in her community and around her home. In terms of the ACBs claim, although the claimant would have required some assistance while her arm was in a cast, she was not entitled to ACBs prior to submission of the Form 1; for the period after the Form 1 was submitted, Adjudicator Parish held that the claimant did not require any assistance. Further, Adjudicator Parish noted that many of the services provided by the claimant’s friend were housekeeping chores rather than attendant care services.

Applicant v. Toronto Transit Commission (17-005228)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Parish dismissed all claims. She held that the claimant was still able to perform many of the activities she engage in prior to the accident, albeit with some pain and at a reduced frequency. Adjudicator Parish also reviewed surveillance which showed the claimant engaging in normal activities of daily living in her community and around her home. In terms of the ACBs claim, although the claimant would have required some assistance while her arm was in a cast, she was not entitled to ACBs prior to submission of the Form 1; for the period after the Form 1 was submitted, Adjudicator Parish held that the claimant did not require any assistance. Further, Adjudicator Parish noted that many of the services provided by the claimant’s friend were housekeeping chores rather than attendant care services.

Z.A. v Aviva Insurance Canada (17-008789)

The claimant sought entitlement to the costs of examination for an in-home assessment, attendant care benefits, and a special award. Adjudicator Norris held that the claimant was unsuccessful on all issues. The adjudicator held that the cost of an in-home assessment was not payable as it was incurred prior to submitting a treatment and assessment plan, as well as being incurring during a period in which the claimant was being treated under the MIG. The adjudicator held that the claimant was entitled to ACBs from the date the claimant’s Form 1 was submitted until the date the insurer produced a responding Form 1, but was not entitled to ACBs thereafter. The insurer produced its ACB IE report beyond the required 10 day period. However, the adjudicator did not award any ACBs and held that the insurer did not unreasonably delay or withhold payment of ACBs because: 1) the claimant took 3 months to submit a Form 1; 2) the claimant did not explain why services were not incurred; and 3) the claimant did not incur any services despite having entitlement to the benefit. The adjudicator declined to issue a special award based on Aviva’s delay in delivering its IE report because there was no delay or withheld payment of ACBs since they claimant did not incur any attendant care expenses. The adjudicator also declined to make a costs award under Rule 19.1 of the LAT Rules as neither party acted unreasonable, frivolous, vexatious, or in bad faith.