Category: Attendant Care Benefits

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.

D.D. v. The Dominion of Canada General Insurance Company (16-002750)

The claimant sought entitlement to medical, non-earner, and attendant care benefits. The insurer asserted a MIG position. Adjudicator Nicole Treksler was critical of the evidence tendered and noted the claimant did not specify which of the activities she was unable to perform after the MVA were important to her. Moreover, the claimant failed to provide clinical notes and records, or commission medical reports and, as a result, failed to meet the burden of proof to warrant removal from the MIG. Accordingly, all the claims were dismissed.

J.D. v. The Dominion of Canada General Insurance Company (16-002745)

The claimant sought entitlement to attendant care, non-earner, and medical benefits. The insurer denied the benefits and had placed the claimant within the MIG. On review of the medical documentation, Adjudicator Nicole Treksler found the claimant was not entitled to any of the benefits claimed. It was noted that non-earner benefits are not automatic upon the submission of a disability certificate; indeed, an OCF-3 is a “a starting point for the [insurer] to investigate whether the applicant is entitled to the claimed benefit.” Adjudicator Treksler also concluded the applicant had not met the onus of demonstrating that his injuries were not minor.

Y.Y. v. Unica Insurance Inc. (16-000552)

The claimant sought entitlement to attendant care benefits. Adjudicator Theoharis did not find the account of the service provider credible as the testimony was vague and did not sound convincing when cross-examined. Additionally, the claimant provided contrary evidence to a statutory declaration. The evidentiary record also contained conflicting accounts as to who provided services, if at all. As a result. Adjudicator Theoharis found that the personal support worker had not provided services and the claim for attendant care benefits was dismissed, under section 3(7)(e)(i).

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

The claimant sought entitlement to attendant care benefits as well as expenses for an office desk, chair, and for a mattress. Having re-calculated the claimant’s needs when comparing competing Form 1s, Adjudicator Treksler found attendant care payable at a reduced rate, but not payable for a period claimed when the claimant had not received any attendant care. The requested furniture items were said to be needed due of the accident and therefore causation was not a reason for denial. Adjudicator Treksler found the furniture items payable.

T.K. v. Unica Insurance Inc. (16-000372)

The claimant was involved in two accident and sought two years of attendant care benefits. She submitted a Form 1 fifteen months after the second accident. She had also submitted a Form 1 for her first accident in which she claimed similar needs. Adjudicator Shapiro rejected the entire claim for attendant care benefits. First, he did not accept that the claimant’s AC needs arose as a result of the second accident, noting that she had just completed a Form 1 for her 2013 accident claiming similar needs from that accident. Second, Adjudicator Shapiro held that retroactive ACBs were not always warranted following the submission of a late Form 1. He followed FSCO case law which permitted a late Form 1 to support ACBs prior to submission (Kelly and Guarantee). However, he distinguished that case (where the claimant had serious catastrophic injuries and could not complete a Form 1) to this case (where the claimant was slow in providing a Form 1). Third, Adjudicator Shapiro denied the ACBs claimed after the date of the Form 1 based on the claimant’s admissions to an IE doctor that she was independent in self-care. He also found that some of the claimed services were in fact for childcare assistance and housekeeping, rather than personal care for the claimant.

M.P. v. Certas Home and Auto Insurance Company (16-000525)

As a result of the accident, the claimant suffered severe knee injuries. The claimant’s wife was a personal attendant at Seniors for Seniors. She provided attendant care service to the claimant, and the claimant sought entitlement to ACBs. Adjudicator Sewrattan held that the claimant was not entitled to ACBs because the service provider was not a professional, and the service provider had not sustained an economic loss as a result of providing services.

B.U. v. Aviva Canada Inc. (16-000143)

The claimant sought removal from the MIG and entitlement to ACBs and various medical benefits. The claimant was removed from the MIG based on psychological grounds and awarded various assessments and psychological treatment. ACBs were denied. Adjudicator Lester noted that even if the claimant had been found to require personal assistance, the evidence did not satisfy the proof of an incurred expense.