Category: Attendant Care Benefits

K.G. v. Motor Vehicle Accident Claims Fund (20-003724)

The claimant disputed his entitlement to ACBs in relation to a 1999 accident. The Fund stopped paying ACBs in 2000 without a proper notice, and agreed to reinstate ACBs with interest at the Form 1 rate of $120.40, and paid interest at 1 percent per month. The claimant requested that the LAT award ACBs at the rate of $5,575.31 per month from 2000 onwards based on a retroactive Form 1 completed in 2019. The claimant also requested interest at the rate of 2 percent per month, and a special award. Vice Chair Shapiro agreed that the Fund improperly stopped payment of ACBs without proper notice, and that the Fund correctly reinstated ACBs with payment back to 2000 at the rate of $120.41 per month, other than two periods in which a “top-up” of $331.10 was granted when the claimant moved residences. Vice Chair Shapiro rejected the retroactive Form 1 and the suggested need for 24-hour supervision. The retroactive Form 1 was completed by an OT will no familiarity of the Form 1 as it existed in 2000; the documents reviewed by the OT were scant; the OT’s evidence was contrary to the evidence of the claimant’s family members regarding the claimant’s independence; and the OT ignored the claimant’s recovery in the year or two after the accident. Additionally, the claimant’s current treatment team did not support the need for 24 hour supervision. As to interest, Vice Chair Shapiro held that the claimant was entitled to interest at the rate of 2 percent per month, rather than 1 percent per month, based on the Court of Appeal’s decisions in Federico v State Farm, and Sidhu v State Farm. Finally, Vice Chair Shapiro granted a special award of 10 percent on all ACBs that were wrongly withheld. The Fund inappropriately placed ACBs “on hold” without any provision in the SABS allowing it to do so, and there was a delay of almost 20 years in payment of ACBs.

The Dominion of Canada General Insurance Company v. Ridi (2022 ONSC 564)

The claimant appealed the Divisional Court’s decision that HST payments on attendant care benefits were included in the $6,000 monthly limits. The Court dismissed the appeal and held that the HST on attendant care services was included in the monthly limit, and was not payable on top of the limit. The Court found that sections 14 and 19, when read together, did not support the interpretation advanced by the claimant and the provisions were not ambiguous. The Court also held that the FSCO Bulletin stating that HST was not included in the SABS limits was not incorporated into the SABS, and was contradicted by the Cost of Goods Guideline, which stating that HST was a reasonable expense and that reasonable expenses were subject to the maximum limits.

Morrisey v. Wawanesa Insurance Company (2022 4398)

The claimant was injured in an accident in 2000, while the 1996 SABS applied. In 2018, the claimant filed a LAT dispute for (among other things) retroactive attendant care benefits. The Tribunal found the claimant was not entitled to retroactive ACBs because he had no excuse for the late Form 1. The Tribunal also held that the incurred expense definition applied to the claimant’s ACBs going forward, and that he was entitled to interest at the rate of 1 percent per month for overdue ACBs. The claimant appealed all three findings. The Divisional Court granted the appeal with respect to interest, holding that the Divisional Court decision in Federico v. State Farm, and the Court of Appeal’s decision in Sidhu v. State Farm, governed the outcome and that two percent interest applied for all claims related to accidents prior to September 2010. The Court dismissed the appeal on the other issues. The Court agreed that the Tribunal correctly held that the claimant was required to show why there was a delay in submitting his Form 1, and that the Tribunal’s conclusions related to the claimant’s arguments were questions of fact that were not open to appeal. The Court also agreed that the Tribunal correctly held that the incurred expense definition applied to all ACBs claims after September 2010 because the definition was a procedural change rather than a substantive change to the SABS.

Crecoukias v. Toronto Transit Commission (19-014590)

The claimant witnessed an individual being struck and killed by a bus. He applied to the LAT for a catastrophic impairment designation, and disputing entitlement to ACBs and various medical benefits. The insurer argued that the claimant’s severe psychological impairments were the result of pre-existing schizophrenia that was already worsening prior to the accident. Adjudicator Neilson agreed with the insurer. Although she accepted that the claimant suffered a psychological injury from witnessing the incident, she found that the schizophrenia and severe psychological impairments demonstrated by the claimant were not a result of the accident, and that it would have developed regardless. The claimant showed a prodromal stage of schizophrenia from a young age, and he was at high risk from developing schizophrenia due to drug use and family history of psychosis. The evidence of the claimant’s mother was rejected as being non-credible as it was contradicted by the medical records of the claimant’s treating psychiatric team. Adjudicator Neilson also noted that she rejected the opinion of the claimant’s catastrophic impairment experts, as it was a chiropractor that provided the AMA ratings following assessment and diagnosis by a psychiatrist. Even using the opinion of the claimant’s psychiatrist, Adjudicator Neilson found that the claimant failed to prove that he suffered a Class 4 marked impairment or Class 5 extreme impairment in any of the four spheres of function as a result of the accident. Adjudicator Neilson did not need to address the claims for ACBs or medical benefits as the claimant had exhausted his medical benefits limits. However, in the event she was overturned with regard to the catastrophic impairment decision, she would have held that the unpaid ACBs related to transportation for the service provider, which was not payable under the SABS. She also found the claimed transportation to be inconsistent with the claimant’s ability to drive himself. Adjudicator Neilson also would have rejected the denied rehabilitation support worker services, as they were duplicative of services the claimant was already receiving at CAMH. Finally, Adjudicator Neilson would have rejected the claims related to the hotel stays, because they were claimed as medical benefits and incurred without a treatment plan. There were also procedural matters addressed at the outset of the hearing. Adjudicator Neilson allowed the insurer’s IE psychiatrist to observe the testimony of the claimant’s psychiatric expert; she allowed a defence medical report completed in the tort matter to be admitted as the insurer had access to the report and it had been provided to other expert witnesses; she allowed the insurer’s IE psychiatrist to testify to matters not contained in the report, while giving the claimant’s expert an opportunity to respond by way of reply evidence; and she restricted the claimant’s catastrophic impairment chiropractor to limiting his testimony to matters pertaining to the spine and musculoskeletal system only.

Yevdokymova v. Economical Insurance (21-000502)

The claimant sought a catastrophic impairment designation and entitlement to various medical benefits and attendant care benefits. The insurer argued that the claimant was barred from disputing entitlement because an earlier hearing regarding NEBs already concluded that the claimant did not suffer the majority of the injuries or impairments allegedly sustained in the accident. The insurer also argued that the claim for ACBs was barred due to the claimant’s failure to participate in an IE, as the claimant had put conditions on her attendance, including the presence of her own occupational therapist. In response, the claimant argued that the current dispute was for different benefits, and as such, the earlier decision on NEBs was irrelevant. The claimant also argued that she ought to be permitted to have her own occupational therapist observe the in-home assessment requested by the insurer. Vice Chair Flude agreed with the insurer and held that the claimant’s current application was barred by res judicata. Although the specific benefits and designation at issue were different than the NEB hearing, the findings of fact in the NEB hearing were so closely related that to allow the claimant’s application to proceed would amount to an abuse of process. Vice Chair Flude also held that the claimant could not impose conditions on her attendance and participation in the requested in-home IE. The insurer met all requirements of section 44 when requesting the IE. As such, the claimant’s failure to participate in the format requested by the insurer triggered section 55. Vice Chair Flude dismissed the dispute in relation to a catastrophic impairment, and stayed the dispute in relation to ACBs until the claimant participated in the in-home IE.

Joslin-Mielke v Pembridge (19-012118)

The claimant applied to the LAT after a dispute regarding the appropriate quantum of ACBs. The claimant argued that due to the complexities of her injury and impaired mobility she would require emergency assistance throughout the night and when traveling within the community. The insurer had already made payment to the claimant for ACBs but denied that any further benefit had been incurred beyond the amount that had been paid. Adjudicator Reilly found that the claimant had not incurred addition ACBs. Section 3(7)(e) of the SABS provides the criteria that must be satisfied to prove that an expense has been incurred. The claimant failed to provide sufficient invoices or other evidence to support her position and the invoices which had been submitted failed to accurately document the services provided. The Tribunal has held that sufficient particulars must be provided to satisfy the criteria required for an incurred expense and that the claimant in this case failed to meet the established threshold.

Bernard v. Unica Insurance Inc. (20-007082)

The claimant sought catastrophic impairment designation, as well as entitlement to non earner benefits, attendant care benefits, and housekeeping benefits. The claimant, who had a pre-existing history of ADHD and Asperger’s syndrome, suffered a comminuted fracture of his left tibia/fibula when he was struck by a car while riding his bicycle. The claimant underwent two surgeries, and suffered from ongoing pain and functional impairment. The parties agreed that from a physical perspective, the claimant’s injuries were significant, permanent impairments. The insurer’s IE assessors concluded that the claimant suffered a 44% WPI. The parties disagreed as to whether the claimant suffered impairments from a psychological perspective that met the criteria for a 55% WPI. Based on the 44% WPI, the claimant would require a further 19% WPI in order to meet the threshold established in the Combined Values Chart. Adjudicator Grant found that the evidence fell short of meeting the requirements to establish same. Notably, the family doctor records were largely silent with any notations that would support complaints or recommendations for psychological-based treatment or medication. Adjudicator Grant accepted that the claimant had established entitlement to NEBs, as his physical injuries significantly limited his ability to engage in almost all aspects of his activities of daily living. Adjudicator Grant found that attendant care services were not reasonable and necessary, and that the claimant was not entitled to housekeeping benefits as he was not found CAT.

Kalk v. Intact Insurance Company (20-002839)

The claimant sought catastrophic impairment designation, as well as entitlement to attendant care benefits and housekeeping benefits. The 24 year old claimant suffered numerous fractures as a result of a head-on collision, and required multiple surgeries and nearly two months in hospitals and in-patient rehabilitation. Vice Chair Shapiro found that the claimant was catastrophically impaired under Criterion 7, accepting that her combined physical impairments (49%) and psychological impairments (20%) produced a 59% WPI rating, which surpassed the Schedule’s 55% threshold. Vice Chair Shapiro accepted the claimant’s Form 1 in the amount of $1,667.10 per month, but noted that it struck him as “excessive”, and encouraged the parties to provide the claimant with occupational therapy assistance on further strategies to complete attendant care tasks herself, rather than requiring indefinite assistance. Vice Chair Shapiro further found that housekeeping benefits were payable at the rate of up to $100 per week.

Bagla v. TD Ins. Meloche Monnex (20-004159)

A request for reconsideration of a preliminary issue decision was filed by the claimant. The preliminary issue decision found the claimant was statute barred for failure to appeal the denial of attendant care benefits in the two year limitation period. In this case, the claimant was involved in two accidents: one on March 3, 2014 and the other on May 25, 2015. He sought ACBs. In regard to the 2014 accident, the insurer denied ACBs by letters dated January 12 and April 17 , 2015. The claimant filed his application on January 17, 2020. In regard to the 2015 accident, the insurer denied ACBs by letter dated April 1, 2016 and the claimant filed his application on June 28, 2019. A case conference was held on November 25, 2020 for both accident claims. The claimant was represented by counsel. An order set down a preliminary issue hearing for March 8, 2021 to determine whether the claimant was statute barred from disputing his ACBs for both accidents. A Notice of Written Hearing was sent to the parties January 25, 2021. Written submissions for the preliminary issue hearing were due February 19, 2021. The insurer filed its submissions and evidence on February 4, 2021. One day prior to the deadline for written submissions, the claimant’s counsel notified the insurer and LAT that she was no longer representing the claimant. The claimant did not file his submissions on the due date. The LAT was unsuccessful in contacting the claimant and a decision was released April 29, 2021. The claimant reportedly did not know about his former counsel’s lack of submissions until several months later. The claimant retained new counsel who immediately filed a motion for an extension to file reconsideration submissions on August 13, 2021. The motion was heard and a decision was released December 6, 2021. The claimant’s request for an extension was granted and the claimant filed this reconsideration request on January 6, 2022. The claimant submitted that he was deprived of his right to participate in a hearing that was significant to his well-being and the evidence regarding the circumstances of his ACBs claim denial was not before the Tribunal and would likely have affected the result. He submitted that the doctrine of discoverability applied to his claims and it was an error to statute bar his claims. The claimant relied on the Tomec decision amongst others. He submitted alternatively that the Tribunal exercise its discretion under s.7 of the LAT Act to allow his claim to proceed to a substantive hearing. The insurer argued that the claimant’s assertion that he was denied procedural fairness was baseless and was rectified by allowing him to make submissions on reconsideration. The insurer also submitted that the claimant did not show how the previously unavailable evidence would have changed the result of the decision. In addition, no rationale was provided to overturn the decision using section 7 of the LAT Act. Vice Chair Boyce reasoned that procedural fairness included participatory rights with an opportunity for those affected by the decision to put forward their views and evidence to be considered. He indicated that the claimant should not suffer for the mistake of his counsel when the Tribunal could rectify the mistake. Vice Chair Boyce found that the claimant was unable to participate in the first instance through no mistake of his own. The claimant did not become aware of the Tribunal’s decision until three months after its release. Vice Chair Boyce granted the claimant’s request for reconsideration under Rule 18.2(a). Vice Chair Boyce accepted that he had made his initial decision solely on the evidence of the insurer and reliance on one party’s evidence affected the result. The claimant was seeking a catastrophic impairment designation at the substantive hearing. Vice Chair Boyce indicated that the doctrine of discoverability in Tomec applied in this case, and that if the Tribunal were to uphold the original decision, the claimant would be unable to claim post-104 ACBs. The preliminary decision of April 29, 2021 was set aside and the claimant was allowed to proceed with his ACBs claim at the substantive hearing.

Gichuki v TD Insurance Meloche Monnex (20-004631)

The claimant sought entitlement to attendant care benefits in the amount of $7,644.34, less $225.75 approved by the insurer, per month, from May 22, 2018 and ongoing. Vice Chair McGee found that attendant care benefits were not payable prior to October 31, 2019 when she submitted an Assessment of Attendant Care Needs (Form 1), pursuant to section 42(5) of the SABS. In submissions, the claimant significantly narrowed the scope of her claim, seeking payment only for her incurred expenses, equal to $220.32 per month. The attendant care services were provided by the claimant’s friend and personal support worker. Despite their friendship, Vice Chair McGee accepted that the provider qualified as a professional service provider who provided the claimant with services in the course of a profession in which she would ordinarily have been engaged but for the claimant. The timesheets provided established that the claimant received a total of 33 hours of attendant care between November 2020 and February 2021. As such, Vice Chair McGee found that the claimant was entitled to be reimbursement for 33 hours of attendant care expenses, payable at a rate of $14.00 per hour (per the Rate Guideline), for a total of $462.00, with interest.