Category: Attendant Care Benefits

K.S. v. The Dominion of Canada General Insurance Company (16-002099)

The claimant sought entitlement to attendant care benefits and multiple treatment plans. A preliminary issue was whether late submitted medical records should be excluded from the hearing. Regarding the late records, Adjudicator Treksler admitted the records reasoning that third parties had control over the records and that the claimant could not control the date of disclosure. She also reasoned that the insurer had not suffered any prejudice. In terms of the attendant care benefits, Adjudicator Treksler awarded four months of attendant care benefits and held that the use of a professional service provider met the incurred requirements in the SABS. No attendant care benefits were awarded beyond the date the claimant was observed to be fully functional on surveillance. Five of the 12 claimed treatment plans were awarded.

K.R. v. TD Insurance Company (16-004073)

The claimant sought attendant care benefits up to the 104 week mark. Adjudicator Treksler found that the claimant suffered injuries that entitled her to attendant care of $873.30 per month. The second issue was whether the claimant’s attendant care expenses were incurred. For a period of five months, the claimant used a professional service provider and those expenses were awarded. For a further period of 13 months, Adjudicator Treksler found that the claimant’s expenses were deemed incurred under section 3(8) of the SABS because the insurer had unreasonably withheld or delayed payment. She was critical of the insurer ceasing payment of attendant care benefits on its basis of its Form 1 alone without considering the records of the claimant’s treatment providers. Finally, Adjudicator Treksler held that no attendant care benefits were payable before the claimant’s Form 1 was submitted.

M.R. v. Aviva Insurance Company of Canada (16-00216)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to attendant care benefits. As a preliminary issue, the respondents sought to exclude the supplementary report of Dr. El-Hage, psychologist, and the sworn affidavit of the occupational therapist. Adjudicator Nemet granted the motion, as the material was written less than 30 days before the hearing and was clearly generated to address evidentiary deficiencies in the claimant’s case as set out in the respondent’s submissions. Further, the respondent would not have the chance to cross-examine the expert, as neither were being called by the claimant. The adjudicator found that the claimant’s psychological injuries fell outside of the MIG. The claimant’s evidence was that she required 45 hours per week of attendant care assistance, and that these services were provided by various family members. The adjudicator found that there was no reliable evidence by way of invoices, logs or any other corrobative evidence to what services, when, by whom and for how long were provided. He was not satisfied that the claimant had “incurred” the expenses as required by section 3(7)(e), noting that the evidence was consistent with the notion that the family members volunteered to help and that discussion about payment did not occur until much later. The adjudicator concluded that the claimant was not entitled to attendant care benefits, and dismissed the application.

Y.D. v. Aviva Insurance (16-001810)

The claimant sought entitlement to attendant care benefits provided by her husband (a fertility physician) and the cost of an in-home assessment. The insurer denied that the claimant had “incurred” any attendant care services and further denied that any attendant care services were reasonable and necessary beyond June 2016. The claimant responded that the insurer was estopped from denying payment of attendant care benefits because it had already accepted that services had been “incurred” in earlier months by services provided by her husband. Adjudicator Paluch considered all three elements of the “incurred” definition and concluded that none of the requirements had been met. First, he held that claimant had not proven on a balance of probabilities that her husband had provided the services claimed, and that the expense forms were not an accurate reflection of services that were actually provided. Second, he held that the claimant did not have any legal obligation to pay her husband for any services he may have provided. Third, he held that the claimant’s husband was not a professional service provider (his regular employment did not concern any tasks that were contained in a Form 1), and that the service provider had not proven that an economic loss had been sustained by providing services to the claimant. In particular, Adjudicator Paluch was critical of the service provider not providing any records of lost income or time from work, and instead simply providing oral testimony. Finally, Adjudicator Paluch concluded that the LAT did not have jurisdiction to administer the rules of equity, as it could only grant remedies set out in its enabling statute. Adjudicator Baluch denied the claim for attendant care benefits and the in-home assessment cost.

Applicant v. The Guarantee Company of Canada (16-001348)

The claimant originally sought attendant care benefits on an ongoing basis. The initial adjudicator’s decision only addressed attendant care benefits up to the date of the hearing and held that the claimant was nominally entitled to $666.23 per month, but that no attendant care services had been incurred. The claimant sought reconsideration of that decision on the basis that he should be entitled to any incurred attendant care benefits beyond the date of the hearing. Executive Chair Lamoureux agreed with the claimant and held that the adjudicator’s failure to explicitly consider entitlement beyond the date of the hearing (a period that was set out in the Case Conference Order) was an error in law. She held that the claimant was entitled to attendant care benefits of up to $666.23 per month, provided the services were incurred. Because the claimant’s accident occurred in 2004, Executive Chair Lamoureux acknowledged that the stricter requirements of the 2010 SABS did not apply, but that the service at issue still needed to have been provided in order to be incurred under the 1996 SABS (relying upon the FSCO decision in McKnight v. Guarantee).

Applicant v. Unica Insurance Inc. (16-000372)

The claimant sought entitlement to attendant care benefits. Her claim was dismissed at a hearing. The claimant applied for reconsideration. It was alleged the Tribunal denied procedural fairness by conducting the original hearing by writing. Executive Chair Linda Lamoureux noted that neither party originally objected to proceeding by way of writing. After reviewing the matter, it was determined the hearing adjudicator did not commit any legal errors. The original decision was upheld.

Applicant v. Allstate Insurance Company (16-002285)

The claimant was catastrophically impaired. An assessment of attendant care needs yielded a monthly rate beyond the statutory maximum. The insurer agreed to pay up to the statutory maximum; however, invoices showed services incurred for less and therefore only the amounts on submitted invoices were paid. The claimant argued that once an economic loss was established, the entire value of the Form 1 was payable. Adjudicator Purdy concluded that the insurer is only liable to pay the attendant care amounts that have been incurred by the applicant. Additionally, treatment plans for both a neuropsychological assessment and neuropsychometric testing were, in fact, one large assessment that would produce two reports – it was therefore subject to the maximum $2,000.00 maximum cap for assessments.

G.S. v. Aviva Insurance Company of Canada (16-001756)

In this case, the claimant sought entitlement to ACBs and medical benefits. The first Form 1 was submitted by the claimant after the 104 week mark. The insurer argued that it was not liable for payment of any ACBs prior to receipt of the Form 1. Vice Chair Flude accepted the insurer’s arguments and held that section 42 of the SABS required the claimant to submit a Form 1 in a timely fashion, and that failure to do so would relieve the insurer from the obligation to pay for ACBs before it received the Form 1. Vice Chair Flude also dismissed the claims for medical benefits; one on the basis that it was incurred before the treatment plan was submitted to the insurer.

F.B. v. The Dominion of Canada General Insurance Company (16-002742)

The claimant sought entitlement to attendant care, non-earner, and medical benefits. On review of the medical documentation, as well as surveillance, Adjudicator Nicole Treksler found the claimant was not entitled to medical and attendant care benefits. The applicant was seen as independent with self-care making attendant care benefits not reasonable; similar analysis was conducted for the disputed medical benefits. The insurer submitted that non-earner benefits were not payable prior to a disability certificate. Adjudicator Treksler noted that per section 36, benefits are not payable prior to an OCF-3; moreover, on the merits the mere submission of an OCF-3 does not create an entitlement to non-earner benefits. Rather a disability certificate is a “a starting point for the [insurer] to investigate whether the applicant is entitled to the claimed benefit.” Costs were sought but not awarded.

K.B. v. Unica Insurance Inc. (16-002023)

The claimant and the insurer agreed that the claimant was medically entitled to attendant care benefits; the dispute pertained to the quantum. The claimant’s entitlement was limited to the amount of economic loss sustained by his service provider mother. At the time of the accident, his mother was unemployed, but looking for work. The claimant argued that the economic loss should be equal to the income his mother earned in her last pre-accident employment.  Adjudicator Sewrattan dismissed the claim for attendant care, and held that there was no evidence that the claimant’s mother would have found employment, or that she would have been able to work in a similar job.