Category: Attendant Care Benefits

Z .R. v. Gore Mutual Insurance Company (18-000017)

The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $8,280.86 per month, various medical benefits, and the cost of examinations (including $11,250.00 for CAT assessments). The claimant had been declared catastrophically impaired in a previous LAT decision. As a preliminary issue, the insurer argued that pursuant to s. 56 of the SABS the claimant was barred from proceeding with his application for ACBs for failing to dispute a denial of the benefit within the two-year limitation period. Adjudicator Hines decided that the claimant was not barred from applying for ACBs. While Adjudicator Hines agreed with the insurer that a partial approval of ACBs triggered the limitation clock and the application was made two years after the partial approval, Adjudicator Hines found that the limitation period did not apply based on the guidance outlined in the Ontario Court of Appeal decision in Tomec. With regards to whether the claimed ACBs were reasonable and necessary, Adjudicator Hines held that being catastrophically impaired does not necessarily entitle a claimant to the maximum available under the SABS and found that the claimant did not meet the burden of proving that he required 24/7 supervision. Adjudicator Hines analyzed the various Form 1s and found that the claimant was entitled to reduced amounts for ACBs during two specific time periods. With regards to medical benefits, Adjudicator Hines found that the claimant was entitled to the disputed physiotherapy and psychological treatment as well as a functional abilities assessment. The proposed CAT assessments were partially reasonable and necessary in the amount of $4,200.00. Adjudicator Hines noted that not all the assessments were relied on at the previous hearing, the amount proposed for some assessments was above the $2,000 cap, and the claimant failed to articulate how some of the assessments were reasonable and necessary. The claimant was not entitled to the amount claimed for mileage related to occupational therapy treatment. Adjudicator Hines decided not to address the claimant’s submissions related to housekeeping benefits because entitlement to housekeeping benefits was not listed as an issue in dispute in previous LAT orders scheduling the hearing.

Day v. BelairDirect Insurance Company (20-005603)

The claimant sought catastrophic impairment designation under Criterion 8 as a result of her involvement in an April 2016 accident. Both parties agreed that the claimant had a class 4 marked impairment due to a mental or behavioural disorder, but the insurer denied that her mental or behavioural disorder was caused by the accident and submitted that the accident did not cause any change to her pre-accident psychological impairments. Adjudicator Neilson found that the claimant’s psychological condition was worse than it was prior to the accident, and that the accident had exacerbated her condition. The pre-accident medical records from the claimant’s treating psychiatrist indicated that her major depressive disorder was in remission as of January 2016. She was getting out the house, walking, going to mall, or going for drives as of March 2016. Evidence from the claimant and family members confirmed that prior to the accident, she was functioning adequately (aside from work), but that she was no longer functioning adequately and drank alcohol excessively every day. As such, Adjudicator Neilson found that the claimant was catastrophically impaired as a result of the accident. Adjudicator Neilson also found that the claimant was entitled to attendant care benefits in the amount of $931.57 per month (as recommended by the claimant’s OT, with exception of 16 hours per day of supervision). As the claimant admitted that she had not incurred any attendant care expenses, no attendant care was payable up to the date of the hearing. Adjudicator Neilson further found that psychological counseling, chiropractic treatment, and yoga instruction, as well as the cost of an attendant care assessment were reasonable and necessary as a result of the accident, and therefore payable.

Smith v. Certas Direct Insurance Company (20-006605)

The claimant was involved in an accident in 2017. He applied to the LAT seeking CAT determination under Criteria 2,6, 7, and 8, as well as entitlement to NEBs, ACBs, and medical benefits. Causation was a key issue at the hearing. Adjudicator Hines held that the “but for” test was the appropriate test to determine causation. The crux of the dispute was whether the accident led to the progression of pre-existing peripheral arterial disease resulting in the above-knee amputation of the claimant’s right leg in September 2020. Adjudicator Hines found that the claimant was catastrophically impaired under Criteria 2 because the accident was a “but for” cause of the amputation, and entitled to NEBs, ACBs, chiropractic treatment, and the cost of CAT assessments. He was not entitled to the cost of a home exercise program. Adjudicator Hines allowed the insurer to rely on late-served CAT reports as they were responding to a new OCF-19 submitted by the claimant. Adjudicator Hines excluded an insurer addendum report as it was served two-days before the hearing and there was no reason why the causation issue addressed in the addendum report could not have been addressed in the initial report.

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.

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