Category: Attendant Care Benefits

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.

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.

Frymus v. Aviva Insurance Canada (19-000055)

The claimant applied to the LAT for entitlement to ACBs. Vice-Chair McGee found that the claimant failed to prove entitlement to ACBs for the relevant time period. It was undisputed that the claimant was entitled to attendant care directly following the accident. At issue before the Tribunal was whether the claimant submitted appropriate proof of the services he incurred, and whether he established that his wife, who had provided his care, had sustained economic loss as a result. The Tribunal found that it had no power to order the payment of expenses incurred before submission of Form 1, limiting the claimant’s overall entitlement. Further, the claimant failed to establish his wife’s economic loss. The tax returns submitted showed a decrease in her annual income but did not establish what that income would have been but for the attendant care services. The wife’s income for the two years prior to the accident showed fluctuations as well, and without more information it was not possible to make a final determination.

Fahritdinov v. Aviva General Insurance (19-009897)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Norris concluded that the claimant was not entitled to the benefits claimed. The claimant sustained injuries to his neck, shoulder, back, and knee as a result of the accident and required surgical intervention. Adjudicator Norris found that while the claimant may have experienced some changes to his life, he failed to demonstrate that he suffered a complete inability to carry on a normal life as a result of accident-related impairments. Thus, the claimant was not entitled to NEBs. Similarly, the claimant required attendant care services immediately following the June 20, 2018 surgery on his right knee. However, Adjudicator Norris found that the claimant had recovered from the surgery and no longer needed the assistance claimed. There was nothing in the evidence to suggest that the benefit was incurred, or that it was not incurred due to the insurer unreasonably withholding payment. There was a difference between what the Form 1 said and what the claimant reported to his assessors regarding his personal care abilities. He reported that he showered and completed most of his housekeeping and home maintenance tasks independently and that he had no limitations with respect to personal care. The application was dismissed.

M.N. v. Aviva General Insurance (19-001788 and 19-007595)

The claimant sought entitlement to attendant care benefits in the amount of $272.46 per month. Adjudicator Ferguson noted that to be payable, attendant care benefits must be incurred by the claimant, as defined by section 3(7) of the SABS, but the claimant submitted no evidence of same. The claimant relied on section 3(8) of the SABS, which allows the Tribunal to deem expenses incurred where an insurer has acted unreasonably, arguing that the insurer ignored the submitted Form 1. Adjudicator Ferguson felt that it would be inappropriate to deem the expenses incurred, given that the claimant had not taken any steps to obtain, source, or price any potential attendant care, as well as the lack evidence that any family member or other person would have incurred any economic loss in providing attendant care. There was no persuasive evidence that the claimant would have incurred this expense if not for the inaction of the insurer, and as such, the claim for attendant care benefits was dismissed.