Category: Attendant Care Benefits

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.

Butler v. Allstate Insurance (19-013444)

The claimant applied to the LAT disputing entitlement to attendant care benefits and medical benefits. The dispute proceeded by written hearing. Adjudicator Lake held that the claimant was not entitled to ACBs for the three periods claimed. For the first period, Adjudicator Lake dismissed the claim as the claimant sought benefits prior to submission of a Form 1, which was not permitted per s. 42. For the second period, Adjudicator Lake dismissed the claim because, while Allstate approved ACBs at the rate of $3,000 per month, the claimant did not provide any evidence that his son and attendant care provider sustained an economic loss nor that the claimant incurred the expenses as the claimant did not submit attendant care invoices. Adjudicator Lake did not find there was any evidence that Allstate withheld ACBs and therefore, she declined to deem the expenses incurred. As for the third period, Allstate reduced the claimant’s ACBs to $448.49 per month. Adjudicator Lake held that even if she accepted the claimant’s higher ACB rate, the claimant again failed to produce evidence that ACBs were incurred and that his son suffered an economic loss. Adjudicator Lake also dismissed the claimant for “planning, service” under the treatment plans, as this was not payable per the FSCO Professional Services Guideline.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.

A.A. v. Unifund Assurance Company (18-008999)

The insurer filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to attendant care benefits at a reduced rate and medical expenses. The insurer submitted that the adjudicator erred in making the inference that because the claimant met the threshold for catastrophic impairment, she continued to meet the test for attendant care benefits. The insurer further argued that the adjudicator failed to apply the proper “but for” test for causation. Vice Chair Maedel found that the adjudicator applied the “but for” test in relation to the attendant care benefits analysis, and had not made any errors in fact or law that would have otherwise led to a different decision on the attendant care issue. Vice Chair Maedel found that the adjudicator did make an error in fact and law when she relied on the insurer’s previous approval of travel expenses to find that the current therapy services in dispute were reasonable and necessary and caused by the accident. Previous approval of a benefit was found to be irrelevant and cannot determine causation. Each treatment plan should be evaluated on whether the treatment can be causally linked to the accident and whether the treatments is reasonable and necessary. Vice Chair Maedel found that s. 46(5) does not entitle a claimant to automatic payment of incurred benefits following a catastrophic impairment designation. A claimant must still demonstrate the treatment is causally related to the accident and is reasonable and necessary. In addition, Vice Chair Maedel found that a catastrophically impaired claimant is not entitled to medical benefits that were incurred prior to submission of an OCF-18, even when an insurer has repeatedly denied medical benefits because the non-CAT limit had been reached. The request for reconsideration was granted in part.