Category: Attendant Care Benefits

H.L. (By Her Litigation Guardian) v. Economical Insurance Company (20-002966)

The claimant was involved in an accident in 2014. The insurer determined that she was catastrophically impaired in 2018. The claimant received attendant care services from a hired attendant care services provider for the period of July 2014 to March 2020. Due to the COVID pandemic, after March 2020 the claimant’s family decided to have the claimant monitored by her son rather than a paid attendant care services provider. Until the fall of 2020, the insurer took the position that the claimant was barred by the limitation period from receiving payment for ACBs. In September 2020, following the reversal of its legal position following the Court of Appeal’s reasons in Tomec v Economical, the insurer paid the amount of ACBs incurred from July 2014 to March 2020, plus interest. The amount incurred and paid was less than the maximum amount of $6,000.00 per month available to catastrophically impaired persons. The claimant applied to the LAT seeking entitlement to ACBs in the amount of $6,000 per month from May 2016 to date. The argued that additional amounts for ACBs up to $6,000 should be deemed incurred to date or until March 2020, if the claimant’s son was found not to have suffered an economic loss. Adjudicator Farlam found that there was no basis for finding that the insurer unreasonably withheld or delayed payment of ACBs and declined to deem that ACBs had been incurred, pursuant to section 3(8) of the SABS. The claimant failed to demonstrate that her son suffered any economic loss in providing alleged attendant care services. Adjudicator Farlam also held that the insurer did not act unreasonably by denying ACBs based on the limitation period, prior to the release of Tomec v. Economical. Once the decision was released, the insurer paid the claimant the incurred ACBs plus interest.

Duval v. Aviva General Insurance (20-001990)

The claimant disputed entitlement to $1,030.84 in monthly attendant care benefits, treatments plans for cannabis and an orthopaedic mattress, interest, and a special award. Aviva initially accepted the Form 1 and paid attendant care invoices as they were submitted. Aviva then denied attendant care based on an orthopaedic assessment and Form 1. The claimant argued that she required attendant care due to pain and tingling in her arms, hands and fingers, as well as shoulder, back and neck pain caused by the accident. Aviva noted that the claimant continued to work as a law clerk post-accident, which required the use of her hands and arms; and continued to care for her children and remained active in the community, which was detailed in a surveillance report showing the claimant running various shopping errands without any difficulty. Adjudicator Chakravarti ruled in the claimant’s favour and found her entitled to attendant care, noting that the claimant consistently reported issues with functional impairments in her hands and arms to her medical practitioners. Furthermore, the insurer’s assessors admitted in their findings that functional limitations were present and that the claimant was limited by pain on examination. Adjudicator Chakravarti ruled that the claimant was entitled to attendant care at a reduced rate of $537.00 per month, which was appropriate based on what was actually incurred during the time Aviva paid the benefit. However, ongoing attendant care was not deemed to have been incurred as the claimant failed to prove that Aviva acted unreasonably or that she did not incur attendant care expenses because Aviva acted unreasonably. The claimant was not entitled to the remaining benefits as she failed to prove that they were reasonable and necessary as a result of the accident. No special award was granted.

Malitskiy v. Unica Insurance Inc. (2021 ONSC 4603)

The claimant appealed the LAT reconsideration in which the Tribunal held that he was only entitled to ACBs calculated by using the Form 1 hourly rate multiplied by the time received for each service (rather than the full Form 1 amount of $6,000), and the Tribunal’s decision that the claimant was not entitled to a special award. The Divisional Court dismissed the appeal. It held that the quantum of ACBs payable was properly determined using the hourly rates set out in the FSCO Guidelines and the Form 1, and that the insurer was not required to pay for attendant care services in excess of those hourly rates. The Court also held that the Tribunal’s reconsideration applied the proper principles of law (as described in Plowright v Wellington). A special award could not be granted simply because the insurer had made the wrong adjusting decision.

Haines v. Aviva Insurance Company of Canada (20-003388)

The claimant was involved in an accident in 2016 and found catastrophically impaired in 2020. The insurer denied entitlement to ACBs in 2016, and refused to reconsider entitlement to ACBs after the catastrophic impairment finding. The insurer argued that the claimant’s 2020 LAT application for ACBs was barred by the limitation period. Vice Chair Boyce found that Tomec v. Economical governed the result, and that the claimant was not barred from disputing entitlement to ACBs. The insurer argued that Tomec was distinguishable because in this case, the claimant had received ACBs prior to the termination in 2016. Vice Chair Boyce rejected that fact as a distinguishing factor, stating that once the claimant was found catastrophically impaired, he was entitled to advance his claim for post-104 week ACBs. The insurer could not rely upon the earlier denial to support a limitation period argument. Additionally, Vice Chair Boyce held that he would have applied section 7 of the LAT Act to extend the limitation period if Tomec had not been binding on him.

Polis v. Aviva General Insurance (20-000025)

The claimant sought entitlement to IRBs and ACBs. Adjudicator Kaur found that the claimant did not suffer a substantial inability to perform the tasks of her pre-accident employment as a result of the subject accident. The claimant was not working at the time of the accident due to a prior workplace injury, and her family doctor’s evidence was that she would require significant improvement before being able to return to work. Adjudicator Kaur found that the claimant’s testimony that that her pre-existing low back pain had resolved was not credible, given that she had not returned to work and remained on short term disability at the time of the accident. Adjudicator Kaur also found that the claimant did not have functional limitations that would warrant entitlement to ACBs. The claimant’s Form 1 was submitted with no accompanying report and no explanation as to why the level of care was recommended. Adjudicator Kaur preferred the findings of the IE assessors, as their objective testing / observations showed that the claimant was able to perform her self-care needs.

Solanes v. Aviva General Insurance (20-001140)

The claimant sought entitlement to ACBs, and the cost of two assessments. Adjudicator Chakravarti denied entitlement to all claimed benefits. ACBs were stopped at the 104 week mark, so the claimant could not claim ACBs unless she sustained a catastrophic impairment. The claimant failed to provide the Tribunal with the disputed treatment plans, so the Tribunal could not determine whether the assessments were reasonable and necessary. Additionally, the clinical notes and records provided by the claimant did not support the need for an orthopaedic assessment or an in-home assessment.

Dominion of Canada General Insurance Company v. Ridi (2021 ONSC 3707)

The insurer appealed the Tribunal’s decision that HST on attendant care benefits is payable above the $6,000 monthly maximum and that HST payments do not come out of the attendant care benefit limits. The Divisional Court allowed the appeal and reversed the Tribunal’s decision. The Court held that prior to the June 3, 2019 amendments, HST charged on attendant care benefits is paid out of the overall limits, and does not create entitlement to payments in excess of $6,000 per month. The Court held that the Tribunal erred in interpreting a Guideline as authorizing payment in excess of the statutory limits.

Switzer v. Waterloo Insurance (19-011403)

The claimant disputed his entitlement to attendant care benefits, housekeeping expenses, and two chair lifts. He also disputed the weekly quantum of IRBs he was entitled to receive. The claimant also sought a special award. The insurer argued that the accident was not the cause of the claimant’s impairments, and that they all pre-existed the accident from six earlier motor vehicle accidents. The insurer also argued that the claimant made material misrepresentations in relation to his claim for housekeeping expenses. Adjudicator Lake found that the accident was a necessary cause that exacerbated the claimant’s pre-existing psychological and cognitive conditions, but did not cause the claimant any new physical impairments or exacerbate his previous physical conditions. Adjudicator Lake declined to award ACBs because the claimant failed to prove that any expenses were incurred. The claimant failed to call his alleged service provider to give evidence and could not prove that the service provider was a professional acting in the course of his employment or self-employment. Adjudicator Lake also wrote that she would have declined to award ACBs due to the claimant’s failure to prove the service actually provided to him. There were no time dockets, daily logs, job diaries, or any information about the dates and times services were performed. Regarding HK expenses, Adjudicator Lake held that the claimant failed to prove that he suffered a substantial inability to complete his home maintenance and housekeeping tasks as a result of the accident. Regarding IRBs, Adjudicator Lake held that the claimant was entitled to $711.15 per week in IRBs during 2018 and $1,000 per week from January 2019 onwards. The claimant was self-employed as a lawyer at the time of the accident, and was a partner at a law firm prior to that. The last full fiscal year worked by the claimant at the law firm was 2016. The claimant did not complete a fiscal year at either his own law firm or as a partner at a law firm in 2017. Adjudicator Lake rejected the insurer’s position that consideration of self-employment income was restricted to a business being operated at the time of the accident. The claimant continued to practice law after the accident, so the insurer was entitled to deduct post-accident earnings in accordance with the SABS. No evidence was provided of the claimant’s income from 2019 onwards. Adjudicator Lake declined to grant a special award, as the only benefit found payable was IRBs, and the interpretation of the SABS that led to the dispute was not excessive, imprudent, or stubborn. Finally, Adjudicator Lake rejected the insurer’s position that the claimant made material misrepresentations in relation to the claim for HK expenses. She agreed that the housekeeper’s testimony called into question evidence given by the claimant regarding creation of invoices, the discrepancy was not a “material fact” with respect to the application for HK expenses; the discrepancy related to the author of the invoices rather than the content.

Majeed v. Aviva General Insurance Company (20-004520)

The claimant sought entitlement to ACBs of $1,017 per month, occupational therapy services, and assistive devices. Adjudicator Mazerolle denied the claim for ACBs. First, he held that the claimant was not entitled to claim ACBs prior to submission of the Form 1. Second, the only invoices for services pre-dated submission of the Form 1. Third, the claimant led no evidence that he had incurred the services and made no argument why the services should be deemed incurred. Adjudicator Mazerolle awarded the two disputed medical benefits. He found that the occupational therapy services would assist the claimant with his cognitive changes, and that the assistive devices would assist in reducing the claimant’s pain. However, the insurer was not required to pay for any incurred amounts until the claimant submitted signed treatment plans.

Harvey v. TD Insurance Meloche Monnex (19-008497)

The claimant applied to the LAT seeking entitlement to incurred ACBs, occupational therapy, and a special award. The insurer raised two preliminary issues: 1) Did the LAT have jurisdiction to adjudicate the ACB issue as the benefit had been suspended for non-compliance with s. 33 requests rather than denied; and 2) Was the claimant barred from pursuing entitlement to ACBs pursuant to s. 55 for failure to attend an IE assessment? Adjudicator Victor found that the LAT had jurisdiction over the ACB dispute and the claimant was not barred from pursuing entitlement to the benefit pursuant to s. 55 because the notice of assessment was deficient for failure to provide specific medical and other reasons. Adjudicator Victor found that the claimant was entitled to all the benefits in dispute and granted a special award in relation to the claim for ACBs. The special award was justified because payment of ACBs was stopped while catastrophic impairment IEs were scheduled, despite section 45(4) which required ongoing ACBs until the IEs were completed. The insurer also used the COVID-19 delays in scheduling the IEs to its advantage by not paying ACBs while IEs were rescheduled.

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