Category: Attendant Care Benefits

Robinson v. AIG Insurance (20-003795)

The claimant was involved in a serious motor vehicle accident in March 2019 and was determined to be catastrophically impaired by the insurer. She applied to the LAT seeking entitlement to ACBs and various medical/rehabilitation benefits. All issues in dispute except ACBs, a special award, and costs were withdrawn after the commencement of the hearing. The hearing in this matter began with the claimant’s motion to have Vice-Chair Farlam recuse herself from the hearing. This was the 18th motion brought during the proceeding. Two reasons were submitted for the recusal request: (1) the claimant had been denied the right to add 14 witnesses to the hearing, and (2) the allegation that Vice-Chair Farlam had a “leaning, inclination, bent or predisposition” favouring insurers. The recusal motion was denied. With regards to the benefits in dispute, Vice-Chair Farlam found that the claimant was not entitled to payment for ACBs because she had not proven that the ACBs in dispute were incurred. Vice-Chair Farlam declined to use her discretion to deem the expenses incurred. The claim for a special award was denied. Vice-Chair Farlam order the claimant to pay $100 for 5 motions that were unreasonably brought without sufficient notice and too late in the proceedings (i.e., on the eve or during the hearing).

Imeri v. Liberty Insurance (19-008097)

The claimant sought entitlement to IRBs, ACBs, various medical benefits and assessments, and the denied portion of catastrophic impairment assessments. Vice Chair Marzinotto granted entitlement to IRBs of $400.00 per week, psychological treatment and assessment, chronic pain assessment, and once further OT assessment as part of the catastrophic impairment assessments. She dismissed the claims for ACBs, assistive devices, and the cost of a catastrophic impairment file review. The claimant suffered chronic daily headaches as a result of an accident in which his large commercial truck rolled while travelling on the highway. The claimant also suffered psychological distress, concentration difficulties, memory problems, and panic attacks. He had not returned to work as a commercial truck driver. Vice Chair Marzinotto found that the claimant met the post-104 week “complete inability” test in relation to IRBs, as he would be unable to drive large commercial vehicles in a work capacity. The claimant’s use of his own personal vehicle to drive short distances did not compare to the requirements of a commercial truck driver. Regarding the claim for ACBs, Vice Chair Marzinotto rejected the argument that the claimant required 24 hour care for panic attacks. There was no evidence submitted that the claimant would not be able to respond to an emergency. Further, there was no evidence submitted that the claimant incurred any attendant care expenses, and it was noted that the claimant did not want strangers in the home, and that the claimant’s spouse provided no evidence of an economic loss. Further psychological treatment and an assessment was awarded, as was a chronic pain assessment. An occupational therapy driving assessment was granted as part of the catastrophic impairment assessments given the claimant’s previous work as a commercial truck driver; the claimed file review costs were denied, as file reviews were to be included in each $2,000 assessment fee.

Powell v. Aviva Insurance Company of Canada (19-012928)

The claimant sought a catastrophic impairment designation, entitlement to ACBs, and medical benefits for occupational therapy and vision therapy. Adjudicator Grieves found that the claimant suffered a Class 4 Marked Impairment in adaptation, and therefore met the catastrophic impairment definition. The accident was a relatively minor rear-end collision, but resulted in the claimant suffering from a mild TBI, and psychological injuries. She continued to work after the accident, but only on a part-time basis. She lacked motivation to engage in daily routines, showered only once per week, had trouble preparing meals, and the claimant’s home was scattered with garbage and cat feces. The claimant experienced multiple periods where she needed to live with her mother because she could not manage independent living. Adjudicator Grieves found the claimant was entitled to ACBs of $644.63 per month for assistance with meal preparation and bathroom and bedroom hygiene. She was critical of the insurer’s assessor, who considered only the claimant’s physical abilities and failed to consider the claimant’s psychological barriers. Medical benefits for aquatherapy was dismissed as it was duplicative, and the claimant already had access to a pool and personal trainer. A treatment plan for a professional organizer and a treatment plan for vision therapy was awarded.

Luluquisin v Aviva Insurance Company of Canada (20-010381)

The claimant (who was catastrophically impaired) sought entitlement to attendant care benefits at the rate of $6,000 per month as well as various medical benefits. Adjudicator Farlam accepted the insurer’s monthly attendant care rate ($1,029.42 per month) as the claimant failed to establish with medical evidence that $6,000 per month in attendant care services was reasonable and necessary, had failed to attend an IE, and the treatment provider had failed to respond to a section 46 request for additional information. Adjudicator Farlam found that the claimant was entitled to previously partially approved amounts for case management services and chiropractic treatment (if not already paid), but not the denied remaining balances. She further found that the remaining disputed benefits were not payable, given the lack of evidence to support that the proposed services were reasonable and necessary.

Amorim v. Jevco Insurance (19-012408)

The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $7,522.85 per month. The claimant was involved in a serious motor vehicle accident in 2012. In 2017, the insurer determined that the claimant was catastrophically impaired as a result of psychological impairments. The disputed attendant care services included feeding, cueing, medication management, and 22.7 hours per day for supervision. The primary issue was whether 24-hour per day supervision was reasonable and necessary. The applicant relied on testimony from multiple treating practitioners who noted that the claimant had severe panic attacks and bouts of rage when alone, and that he had been unable to stay in his home alone as a result. The insurer relied on experts, who recommended more intensive cognitive behavioral therapy rather than 24-hour supervision. Adjudicator Grieves found that the claimant had serious cognitive and psychological issues that resulted in safety concerns, and that the proposed attendant care services were reasonable and necessary, at least until recommended therapy was successful. The claimant was entitled to attendant care benefits up to the statutory maximum, inclusive of 24-hour supervision.

S.V. v. Wawanesa Insurance (18-009702 and 20-001009)

The claimant applied to the LAT for a catastrophic impairment determination due to psychological impairment, IRBs, ACBs, and various medical benefits. Adjudicator Hines concluded that the claimant did not suffer a catastrophic impairment as a result of the accident. While the claimant did sustain a psychological impairment in the accident, he sustained only Class 2 Mild Impairments or Class 3 Moderate Impairments due to the accident. The claimant maintained his social contacts, and he communicated with assessors in an effective and pleasant manner; there was no evidence linking the claimant’s psychological impairments with his ability to perform activities of daily living; and the claimant remained independent with sustaining an ordinary routine without supervision, and used his judgment to make simple decisions. Adjudicator Hines was critical of the claimant’s experts, as they did not review the claimant’s pre-accident medical records which showed significant pre-accident health issues, and relied mainly on the claimant’s self-reporting. The claim was IRBs was denied, as the claimant failed to prove how his psychological impairments affected his ability to work. He also failed to submit financial records in support of a loss of income. The claim for ACBs was denied as the claimant’s Form 1 assessor relied upon the claimant’s self-reporting and she did not review the pre-accident medical records, nor did she understand the extent of the claimant’s pre-accident health issues. The medical benefits were denied because the claimant failed to prove the connection between the proposed treatment and the accident.

J.D. v. Intact Insurance Company (19-002767)

The claimant was involved in a motor vehicle accident in 2018. As a result of the accident, his leg was amputated. His injuries were deemed catastrophic by the insurer. The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $6,000 per month, housekeeping expenses, and numerous medical and rehabilitation benefits (including the cost of a home modification assessment in the amount of $8,858.78, the cost of alternative accessible housing in the amount of $1,126,560, and the cost of alternative short-term housing in the amount of $19,200). The proposed attendant care services included 24-hour supervision, which was recommended by an OT who opined that due to the acute nature of the applicant’s injuries he was incapable of responding to an emergency and thus required care of 24 hours per day. Adjudicator Manigat found that the claimant was entitled to attendant care benefits in the amount of $3,000.00 per month. Adjudicator Manigat was not persuaded that the claimant required 24-hour care, as he had been able to stay at a house alone and travel out of the country twice without attendant care services or supervision. Adjudicator Manigat found that the claimant required assistance with some but not all housekeeping tasks and was entitled to $50 per week for housekeeping benefits, rather than $100 per week. The claimant was found entitled to the majority of the disputed medical and rehabilitation benefits, including provider mileage costs, parking costs, case management services, medical marijuana, an iPhone, and $8,858.78 for the Adapt-Able Design housing assessment. The claimant was not entitled to social work services that duplicated approved psychotherapy services and was not entitled to further psychological services as he failed to attend previously approved treatment sessions. The claimant was not entitled to the cost of alternative accessible housing in the amount of $1,126,560. Adjudicator Manigat found that while the claimant did require alternative housing to meet his disability needs, the report recommending alternative accessible housing failed to take into consideration a home that the claimant already co-owned with his siblings, which was a “potential, legitimate option.” The claimant was found entitled to a treatment plan proposing alternative short-term housing in the amount of $19,200.

Qazi v. Aviva Insurance Company of Canada (19-007943)

The claimant was involved in a motor vehicle accident in 2015. As a result of the accident, she sustained multiple injuries, including a head injury with a GCS score of 5/15. The insurer determined the claimant had a catastrophic impairment as defined in the SABS. The claimant returned to work on a part-time basis in March 2016 and gradually increased her hours until she was working full-time, with accommodations. In 2018, the claimant submitted a Form 1 recommending attendant care services, which were denied on the basis that they were not reasonable and necessary. The claimant applied to the LAT seeking entitlement to ACBs. In addition, at the commencement of the hearing the claimant sought to add a claim for a special award to the issues in dispute. Vice-Chair Johal found that the claim for ACBs was reasonable and necessary for the purpose of putting on and taking off the claimant’s shoes for 5 minutes per day. The remainder of the claimant’s Form 1 was found not to be reasonable and necessary. Vice-Chair Johal accepted testimony that cleaning the bathroom and bedroom is considered an attendant care service if it is in relation to extra cleaning needs due to accident-related injuries, and that the claimant was seeking housekeeping services for tasks that she normally completed prior to the accident (which are not attendant care services) rather than seeking attendant care assistance for additional cleaning needs. Vice-Chair Johal further found that the evidence did not suggest the claimant was unable to perform the bedroom and bathroom cleaning tasks that she normally performed before the accident. Vice-Chair Johal allowed the claimant to add the claim for a special award to the issues in dispute at the outset of the hearing, against the objection of the insurer. However, the request for a special award was dismissed.

Gupta v. TD Insurance Meloche Monnex (19-010353)

The claimant applied to the LAT seeking entitlement to the cost of examinations, post-104 IRBs, ACBs, and a special award. The claimant was involved in a motor vehicle accident in 2016. Her injuries were found to include post-concussion syndrome and chronic pain. She received long-term disability benefits until 2020 (when she received an advance buyout of her long-term disability benefits) and CPP Disability benefits from 2017 to 2020. Adjudicator Grant did not find the s. 44 post-104 IRB reports compelling, as the opinions were provided individually and there was no consideration of the combined impact of the claimant’s impairments on her ability to return to work. Adjudicator Grant found that the claimant was entitled to post-104 IRBs and a neuropsychological cognitive assessment. She was not entitled to a language pathology assessment. The claimant did not have the financial means to pay for attendant care services. As such, Adjudicator Grant found that the claimant had failed to prove that she incurred any ACBs, and she was not entitled to payment of ACBs. Finally, Adjudicator Grant found that the insurer’s failure to provide s. 44 assessors with all the clinical notes and records of the claimant did not meet the threshold for granting an award, and the claim for a special award was dismissed.

Micu v. The Personal Insurance Company (20-006746)

The claimant sought entitlement to attendant care benefits in the amount of $3,079.00 per month. At issue in the hearing was whether the claimant: (a) had proven that she incurred expenses for attendant care, and (b) the service provider sustained an economic loss due to providing attendant care services. The claimant submitted that her partner sustained an economic loss of $778.00 per month while providing attendant care services, as the partner had reduced her work scheduled by one 8-hour shift per week to accommodate the claimant’s care needs. Upon review of the partner’s income and employment documentation, Vice Chair McGee found no marked difference her pre-accident and post-accident hours of work and earnings. Vice Chair McGee noted that while she was sensitive to the impact the accident had likely had on the claimant and her partner, the SABS reflected a clear intention on the part of the legislature to compensate non-professional attendant care providers only up to the amount of the economic loss. As the claimant had failed to establish that her partner had suffered monthly economic loss, she had not met her onus in proving that she incurred the claimed attendant care services, and the claim was dismissed.