Category: Attendant Care Benefits

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.

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.

Applicant v. Unica Insurance Inc. (17-007052)

The claimant sought a declaration that she sustained a catastrophic impairment, and sought entitlement to ACBs and medical benefits. The insurer denied all of the claims and argued that the claim for ACBs was time barred. Adjudicator Ferguson held that the claimant did not suffer a catastrophic impairment. He preferred the evidence of the IE assessors over that of the claimant’s assessors because the claimant’s assessors did not conduct any psychological testing, did not discuss the four areas of function, and did not explain how his scores for physical impairments were made. Adjudicator Ferguson held that the claim for ACBs was time barred and that the claimant only had two years from the date the insurer reduced her ACBs entitlement to apply to the LAT. The claims for medical benefits were dismissed because the claimant failed to provide evidence that they were reasonable for her injuries.

K.T. v. Aviva General Insurance (17-007027)

The claimant sought entitlement to attendant care benefits beyond the termination date despite no amounts being incurred. The claimant asked that the LAT deem the expenses incurred. Adjudicator Mazerolle concluded that he could not deem the expenses incurred. He held that the insurer’s termination of attendant care benefits was not unreasonable and that the IE report that supported the termination was based on appropriate factors. Further, the claimant had not promised to pay for any attendant care services beyond the date of termination.

S.K. v. Aviva Insurance Company (17-006866)

The claimant sought payment of attendant care benefits. The insurer did not dispute that services were reasonable and necessary, but argued that the claimant had not incurred such expenses. The claimant refused to provide answers to questions regarding the services during an examination under oath, and the invoices proving receipt of the services was vague and submitted well after services were allegedly incurred. Adjudicator Mather concluded that the claimant had received the services from a PSW, based on affidavits from the claimant and the PSW. She also concluded that the claimant was legally obligated to pay for the attendant care services. However, Adjudicator Mather decreases the total benefit payable based on the hourly rate in the Guidelines.

R.K. v. Aviva Insurance Company (17-006651)

The claimant sought payment of attendant care benefits. The insurer did not dispute that services were reasonable and necessary, but argued that the claimant had not incurred such expenses. The claimant refused to provide answers to questions regarding the services during an examination under oath, and the invoices proving receipt of the services was vague and submitted well after services were allegedly incurred. Adjudicator Mather concluded that the claimant had received the services from a PSW, based on affidavits from the claimant and the PSW. She also concluded that the claimant was legally obligated to pay for the attendant care services. However, Adjudicator Mather decreases the total benefit payable based on the hourly rate in the Guidelines.

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

The claimant sought entitlement to NEBs, attendant care, two medical benefits, interest, and costs. Adjudicator Johal found the claimant’s complaints of pain to be credible, but did not find that his pain-related restrictions equated to a complete inability to carry on a normal life; as such, the claimant’s entitlement to NEBs was denied. However, Adjudicator Johal preferred the evidence of the claimant’s assessors with respect to his attendant care needs, and held that he was entitled to attendant care benefits. After a review of the medical evidence, Adjudicator Johal concluded that one of the disputed benefits for chiropractic treatment was reasonable and necessary, while another for occupational therapy services was not. Adjudicator Johal declined to award costs.

Applicant v. Aviva General Insurance (17-005010)

The insurer denied the claimant’s entitlement to certain attendant care benefits. The claimant disputed the insurer’s denial and argued that the payments were unreasonably withheld or delayed. With respect to the period of time from when the first Form 1 was provided by the claimant to the time when the claimant started to incur attendant care services, Adjudicator Norris held that no attendant care benefit was payable because the claimant did not incur any attendant care expenses during that time. There was no delay in the insurer’s advice that it would pay any expenses incurred (subject to the limit outlined in the Form 1) from the time it received the Form 1. With respect to the period of time from when the claimant began to incur attendant care expenses to the two-year limit for non-catastrophic claims (during which time the insurer paid for all of the attendant care expenses incurred by the claimant), Adjudicator Norris found that the benefits paid accorded with the claimant’s needs and declined to deem any additional attendant care benefits incurred. Lastly, Adjudicator Norris found that the insurer unreasonably withheld payment of attendant care benefits for a period where it had agreed to pay attendant care benefits. The insurer did not deny there was a delay in payment and there was no apparent reason for its failure to pay the invoices in a timely manner. A special award of 25 percent was made.