Category: Attendant Care Benefits

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.

Applicant v. Aviva General Insurance (17-006831)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to attendant care and medical benefits proposed in six treatment plans. Pursuant to s. 56 of the SABS, Adjudicator Watt found that the claimant was statute barred from seeking attendant care benefits as the benefits were denied more than two years before the LAT application was filed. The respondent’s letter advising that there was no entitlement to attendant care benefits as the claimant’s injuries were within the MIG was found to have started the limitations period clock. Adjudicator Watt also found that there was no evidence demonstrating attendant care benefits had been incurred or were reasonable and necessary. Adjudicator Watt found that the claimant’s injuries fell with the MIG and that none of the treatment plans in dispute were payable as the MIG limits had been exhausted.

Applicant v. Motor Vehicle Accident Claims Fund (17-001681)

The claimant suffered a catastrophic impairment following a motorcycle accident which caused a traumatic brain injury. He sought entitlement to NEBs, ACBs, a rehab support worker, home modifications, and a special award. The Fund denied his entitlement to the claimed benefits. It also argued that the claimant did not have a valid licence and was not entitled to NEBs, and that no attendant care services had been incurred. Regarding the exclusion, Adjudicator Hines concluded that it did not apply because the claimant did have a valid driver’s licence (G1) even though it was not the proper licence for operating a motorcycle. She awarded NEBs, concluding that the claimant’s life had changed significantly following the accident. Even though the claimant was receiving ODSP for various disabilities before the accident, the brain injury resulted in significant changes in the claimant’s independent functionality. ACBs were also awarded at the rate of $6,000 per month. Adjudicator Hines concluded that 24 hour care was reasonable based on the claimant’s brain injury and the need for constant supervision. She also held the ACBs to be deemed incurred up to the date of the hearing because the Fund had failed to consider its IEs with a critical eye to ensure that they were medically sound and unbiased. Rehab support worker services were awarded because it was reasonable to teach the claimant skills and strategies to reintegrate into the community. Home modifications were not awarded because the majority of recommended modifications were for someone with severe physical disability rather than a brain injury. Finally, Adjudicator Hines granted a special award in relation to ACBs and the rehab support worker. She concluded that the denials were unreasonable and that the Fund did not critically consider its own IE reports. The Fund also failed to follow the recommendations of its own independent adjustors.

E.E. v. Aviva Insurance Company (16-004281)

The insurer sought reconsideration of the Tribunal’s decision that the claimant had sustained a catastrophic impairment and was entitled to attendant care benefits. Associate Chair Jovanovic denied the request for reconsideration. He held that the adjudicator did not err in preferring the evidence and opinions of the claimant’s experts and treating physicians, and that it was not an error to accept an opinion of the claimant’s treating physician. In terms of attendant care benefits, the Associate Chair held that the claimant’s spouse could provide professional services without providing such services through an independent contracting company; he held that the spouse’s leave from work at the time of the accident did not prevent the spouse from acting as a professional service provider after the accident; and held that the verbal promise to pay the spouse was sufficient to meet the “incurred” definition. The Associate Chair also upheld the payment of attendant care for overnight supervision by the spouse.