Category: Attendant Care Benefits

M.E.R v. Aviva General Insurance Company (17-008924)

The claimant applied to the LAT seeking entitlement to ACBs in the amount of $2,479 per month and various medical benefits for physical treatment, psychological treatment, occupational therapy services, an orthopaedic mattress, the cost of clothing and personal expenses, and transportation expenses. The claimant was a pedestrian injured in a motor vehicle accident in a parking lot. The insurer’s Form 1 initially recommended ACBs in the amount of $297.76 per month. A subsequent insurer’s Form 1 recommended $0.00 for ACBs. The assessor opined that the provision of unnecessary support for self care tasks would promote unnecessary dependency on external supports which is not required in the course of rehabilitation. Adjudicator Gosio found that there was no objective evidence of ongoing physical impairments in the left upper extremities, and the insurer’s Form 1s were reasonable. The claimant was entitled to chiropractic and physiotherapy treatment, and ACBs in the amount of $297.76 per month for 10 months. Adjudicator Gosio found that the claimant failed to establish that 90-minute sessions of psychotherapy, as opposed to the approved 60-minute sessions, were reasonable and necessary. Pursuant to section 55 of the SABS, the claimant was barred from disputing entitlement to the orthopaedic mattress as she had failed to attend an IE assessment.

S.M. v. Mutual Insurance Company (18-008474)

The claimant sought reconsideration of the LAT’s denial of retroactive ACBs and the decision regarding the amount of ACBs that were found payable. The accident occurred prior to September 1, 2010. Interpretation of the transitional provisions in the 2010 SABS and 1996 SABS was an issue in dispute, including interpretation of provisions relating to interest and the applicability of the requirement for benefits to be incurred before they are payable. The request for reconsideration was denied. Adjudicator Johal found that there was no error in law in the determination that there is no strict bar against filing an application for retroactive attendant care benefits, but the burden is on the claimant to “explain the urgency, impossibility or impracticability of compliance with s. 42(5) of the Schedule.” Adjudicator Johal found that there was no error in law in determining that the “incurred” definition applied to this claim, even though the accident occurred before September 1, 2010. Adjudicator Johal held that “rights are based on what is set out in the Insurance Act and regulations at the time of a claim rather than the date of the accident.” Adjudicator Johal found that there was no error in law in the finding that the applicable interest rate was 1%, in accordance with the 2010 SABS.

S.M. v Wawanesa Mutual Insurance Company (18-008474)

The insurer and claimant sought reconsideration of Adjudicator Johal’s decision that: (1) the claimant was only entitled to 120 minutes of ACBs per day and 60 minutes of ACBs per week, and (2) the claimant was not entitled to retroactive ACBs. Adjudicator Johal dismissed the reconsideration and noted that she properly applied the law to her original decision – retroactive benefits were not payable because the claimant did not establish that there was a valid reason for his delay in filing a retroactive Form 1 (urgency, impossibility or impracticability in accordance with section 42(5) of the SABS.) With respect to the amount of ACBs, Adjudicator Johal noted that she weighed the evidence and the testimony of the witnesses and that her original decision provided sufficient reasons and explanations for her conclusion.

A.M. v. Certas Home and Auto Insurance (19-002869)

The claimant disputed entitlement to numerous treatments plans and ACBs in the amount of $6,142.59 per month from November 29, 2018 and ongoing. The claimant was diagnosed with Parkinson’s Disease and Dementia pre-accident, as well as headaches and ear pain. The insurer argued that the benefits claimed were for the claimant’s pre-existing conditions, and that he had only sustained minor soft tissues injuries as a direct result of the subject accident, and were therefore not reasonable or necessary. Adjudicator Watt noted that a review of the pre-accident medical records showed that the claimant was suffering from all of the alleged accident-related complaints long before the subject accident, that the claimant’s own expert reports were often contradictory and lacked compelling arguments as to why the proposed treatments were reasonable and necessary as a result of the accident. further, some of the disputed benefits were available to the claimant through OHIP. The claimant’s own statement’s that he was independent with personal care, along with a lack of evidence that any proposed ACBs would be as a result of the accident, and not his pre-existing conditions, resulted in the claim for attendant care being dismissed along with the rest of the Application.

F.K. v. TD Home and Auto Insurance Company (18-008114)

The claimant sought entitlement to NEBs, ACBs, and psychological treatment. Adjudicator Gosio rejected the claims for NEBs and ACBs, and found that the psychological treatment plan was disputed more than two years after the denial. The claimant failed to lead sufficient evidence that the accident was the cause of her impairments, as she had extensive pre-accident injuries and impairments. Adjudicator Gosio also rejected the claimant’s argument that the “material contribution” test should apply. Regarding the claim for ACBs, the adjudicator again noted that the claimant was receiving personal care in relation to an earlier accident and that she failed to prove that further care was required as a result of the subject accident. The disputed psychological treatment was denied more than two years prior to the LAT application.

R.A. v. Aviva Insurance Company (19-002890)

The claimant applied to the LAT for entitlement to ACBs, a variety of OCF-18s for treatment and assessments, the cost of a psychological pre-screen, the cost of two OCF-3s, and a special award. Based on monthly invoices for ACBs (all in the same amount), which did not particularize the exact dates or times services were provided or provide information about the service provider, Adjudicator Lake was unable to find on a balance of probabilities that the applicant had received attendant care services. Adjudicator Lake found that a failure to advise the claimant of eligibility for ACBs upon removal of the MIG did not constitute an unreasonable withholding or delaying of benefits. ACBs were not deemed to be incurred pursuant to section 3(8). Pursuant to s. 38(11), Adjudicator Lake found benefits proposed in multiple OCF-18s were payable because the insurer did not include specific details about the claimant’s medical condition in its denial letters. Adjudicator Lake found that the claimant was not entitled to ACBs, the cost of the psychological pre-screen, the cost of the two OCF-3s, chronic pain treatment, psychological treatment, a driver re-integration program, or OCF-18s that were duplicates of other approved OCF-18s. The claimant was entitled to shockwave therapy, a psychological assessment, a chronic pain assessment, and an exercise program.

J.R. v. Aviva Insurance Company (19-006160)

The claimant disputed his MIG determination, as well as entitlement to attendant care benefits in the amount of $138.09 per month and various medical benefits. Adjudicator Boyce found the claimant to be unsuccessful on all of the disputed issues. The claimant’s argument for removal from the MIG centred around his psychological impairments, relying on a psychological pre-screen interview report. Adjudicator Boyce did not find the pre-screen report compelling because it included no preliminary diagnosis or suggestion that the claimant met DSM-V criteria. Further, the claimant’s family doctor records made no reference to accident-related psychological complaints. As the claimant’s injuries fell within the MIG, he was not entitled to attendant care benefits or the disputed non-MIG treatment plans.

D.M.A.M. v. Aviva Insurance Canada (19-005566)

The claimant sought entitlement to ACBs. Adjudicator Johal concluded that attendant care benefits were not reasonable and necessary. The claimant did not submit contemporaneous evidence showing that the claimant had limitations or restrictions that would require assistance with activities of daily living, and no treatment providers recommended personal care. Further, the claimant’s pain complaints were not supported by objective evidence. She demonstrated necessary functional abilities to perform self-care.

A.N. v. Aviva Insurance Company of Canada (19-000685)

Following her removal from the MIG, the claimant sought entitlement to ACBs. The claimant conceded that she did not incur and attendant care expenses, but argued that the expenses should be deemed incurred because she was kept in the MIG until the Case Conference which was after the 104 week mark and the insurer failed to respond to her Form 1. Adjudicator Boyce rejected the claimant’s argument. He noted that the claimant was removed from the MIG due to psychological impairment, and she could not demonstrate how the impairment resulted in the need for dressing, and tub transfers. The claimant had also reported to IE assessors that she was independent with personal activities of daily living. She also continued to work in a part-time position. Finally, the claimant did not demonstrate that she would have incurred attendant care expenses even if she had been removed from the MIG earlier.

A.L. v. Unica Insurance Inc. (18-008890)

The claimant sought a determination of a catastrophic impairment based on a WPI in excess of 55 percent. He also sought entitlement to ACBs, the denied portion of CAT assessments, and various medical benefits. Adjudicator Lake concluded that the claimant did not suffer a catastrophic impairment. She rejected the claimant’s experts opinions on WPI for mental or behavioural impairments because it relied on opinions from other experts which those experts later retracted. Even if all other WPI were accepted, the claimant would only have a 42 percent WPI. The ACBs claim was dismissed because it was for a period beyond the 104 week mark. Adjudicator Lake agreed with the claimant that CAT assessments were not paid out of the medical benefits limits, and found that six of proposed seven assessments were reasonable. Finally, Adjudicator Lake held that the treatment plans for further physiotherapy were reasonable and necessary, but that the claims for assistive devices, an attendant care assessment, and a two-part neuropsychological examination were not.

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