Category: Attendant Care Benefits

S.M. v. Unica Insurance Inc. (18-010164)

The Tribunal had found the claimant entitled to (among other things) $6,000 per month in ACBs and granted a 25 percent special award. The insurer sought reconsideration. Adjudicator Boyce granted the reconsideration and reduced the payable ACBs and concluded that no special award was payable on ACBs or an awarded home modification. With regard to the ACBs award, the claimant was only entitled to payment for service incurred but in the amount provided for by the hourly rates set out in the Guidelines (as opposed to the amount actually incurred). The Tribunal erred by awarding the claimant “up to $6,000” for whatever was incurred at whatever rate the service provider charged. With regard to the special award, Adjudicator Boyce held that the Tribunal imposed a greater burden on the insurer than was appropriate. It was unreasonable to expect an adjuster to micromanage the assessments of qualified professionals, and the adjuster was entitled to rely upon their expert opinions.

S.M. v. Unica Insurance Inc. (18-010164)

The Tribunal had found the claimant entitled to (among other things) $6,000 per month in ACBs and granted a 25 percent special award. The insurer sought reconsideration. Adjudicator Boyce granted the reconsideration and reduced the payable ACBs and concluded that no special award was payable on ACBs or an awarded home modification. With regard to the ACBs award, the claimant was only entitled to payment for service incurred but in the amount provided for by the hourly rates set out in the Guidelines (as opposed to the amount actually incurred). The Tribunal erred by awarding the claimant “up to $6,000” for whatever was incurred at whatever rate the service provider charged. With regard to the special award, Adjudicator Boyce held that the Tribunal imposed a greater burden on the insurer than was appropriate. It was unreasonable to expect an adjuster to micromanage the assessments of qualified professionals, and the adjuster was entitled to rely upon their expert opinions.

A.A. v. Aviva Insurance Company (18-011152)

The claimant sought entitlement to attendant care benefits of $2,442.67 per month for a seven month period. Adjudicator Boyce concluded that the services identified on the claimant’s Form 1 could not reasonable be associated with the claimant’s accident-related impairments when he continued to work in his pre-accident employment, had not seen his family physician, and was not using any prescription medications. The claimant also failed to prove what services were incurred by his service provider.

A.M. v. Wawanesa Mutual (18-008775)

The claimant sought a catastrophic impairment determination, as well as entitlement to NEBs, ACBs, various medical benefits, and the denied portion of catastrophic impairment assessments. The insurer argued that the claimant’s psychological injuries and epilepsy were not accident-related, but resulted from pre-existing conditions. Adjudicator Lake agreed with the insurer and dismissed all claims. She found that the claimant had suffered from various pre-accident impairments (epilepsy, migraines, major depressive episodes related to the death of the claimant’s daughter). Further, surveillance of the claimant showed that she was not credible in her self-reporting. Adjudicator Lake was also critical of the claimant’s experts assigning the maximum WPI when converting psychological impairment. With respect to psychological impairment caused by the accident, Adjudicator Lake found Class 1 and 2 impairments. The claims for NEBs and ACBs were similarly dismissed. The denied portions of the CAT assessments were not reasonable and necessary, and the claimed medical benefits were dismissed.

S.V. v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought reconsideration of the Tribunal’s decision regarding certain denied ACBs for feeding, bathroom cleaning, and basic supervisory care. She also sought interest on ACBs from the retroactive date of the Form 1, rather than the date the Form 1 was submitted. Adjudicator Parish granted the reconsideration in relation to the quantum payable for feeding, but denied all other aspects of the reconsideration. The error was based on the Tribunal using 90 minutes as opposed to 150 minutes per day for meal preparation. The denial of other aspects of the Form 1 was unchanged as the Tribunal did not make an error in fact or law. The Tribunal also noted that re-integration into the community was not “basic supervisory care” under the Form 1. Finally, the Tribunal re-iterated that interest was not payable prior to submission of the Form 1 because the insurer would not have been aware of the claimant’s need for attendant care prior to the Form 1.

J.V.D.A. v. Aviva General Insurance(19-002631)

The claimant sought payment of HST on attendant care services outside of the ACB limit. Aviva had paid a total of $1,829.62 in HST as charged by the AC service provider, but paid it from the ACB limits. The claimant argued that the payable HST was not subject to the ACB limit as set out in section 19 of the SABS. Adjudicator Grant ruled that the payable HST was not subject to the ACB limit and was to be paid separately as a tax and not as a service, citing the Professional Services Guideline, Superintendent’s Guideline No. 03/14, as well as FSCO issued Bulletin No. A-04/15 as both being persuasive in his determination.

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

The claimant had previously been deemed catastrophically impaired. She applied to the LAT seeking entitlement to ACBs, medical benefits that had been denied prior to her being deemed catastrophically impaired, and medical benefits that had been denied after she was declared catastrophically impaired. Adjudicator Punyarthi found that the claimant was entitled to ACBs, but based on surveillance and other evidence, determined that the amount payable was less than the amount being claimed. Pursuant to s. 38(2) of the SABS, Adjudicator Punyarthi found that the claimant was not entitled to payment of pre-CAT medical benefits that were incurred prior to the submission of treatment plans. The insurer raised a limitation argument against a claim for pre-CAT medical benefits that were denied more than two years before the claimant’s LAT application. Adjudicator Punyarthi found that the claimant was not barred by virtue of a missed limitation period, based on the Court of Appeal decision in Tomec. Adjudicator Punyarthi found that pelvic floor physiotherapy was not payable as there was insufficient evidence to establish on a balance of probabilities that the impairment was a result of the accident.

Unica Insurance Inc. v. K.B. (19-006165)

The claimant had been paid ACBs by the insurer based on the alleged economic loss sustained by his mother, who was seeking employment at the time of the accident. In an earlier decision by the Tribunal, it was held that the mother did not suffer an economic loss. The insurer then sought repayment of $19,170.90 in ACBs on the basis that it was paid in error. The claimant refused to make repayment. Adjudicator Boyce held that section 52 applied and permitted the insurer to request repayment made in error for up to one year after the payments. He also held that the ACBs were being paid to the claimant, not his mother, so there was no defence that the benefits were not “paid to the person.”

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

The claimant had previously been deemed catastrophically impaired. She applied to the LAT seeking entitlement to ACBs, medical benefits that had been denied prior to her being deemed catastrophically impaired, and medical benefits that had been denied after she was declared catastrophically impaired. Adjudicator Punyarthi found that the claimant was entitled to ACBs, but based on surveillance and other evidence, determined that the amount payable was less than the amount being claimed. Pursuant to s. 38(2) of the SABS, Adjudicator Punyarthi found that the claimant was not entitled to payment of pre-CAT medical benefits that were incurred prior to the submission of treatment plans. The insurer raised a limitation argument against a claim for pre-CAT medical benefits that were denied more than two years before the claimant’s LAT application. Adjudicator Punyarthi found that the claimant was not barred by virtue of a missed limitation period, based on the Court of Appeal decision in Tomec. Adjudicator Punyarthi found that pelvic floor physiotherapy was not payable as there was insufficient evidence to establish on a balance of probabilities that the impairment was a result of the accident.

L.M. v Portage La Prairie Mutual Insurance Company (19-004596)

The claimant disputed her entitlement to attendant care benefits and various medical benefits. Adjudicator Boyce determined that the claimant was not entitled to ACBs for the period in dispute, as they are not reasonable and necessary and the claimant did not provide evidence that the services were incurred. The claimant offered no evidence or substantive submissions on whether attendant care services had been incurred, and provided no invoices, promissory notes, or affidavits speaking to services provided, the level of care, or the rate of care. Adjudicator Boyce also found that the disputed treatment plan for assistive devices was not reasonable or necessary, as the claimant provided no substantive analysis on why the specific devices were required to address his specific impairments, and it was not clear whether the claimant ever obtained any of the proposed devices which undermined his argument as to whether they were reasonable and necessary. Adjudicator Boyce did find a psychological treatment plan to be reasonable and necessary, finding enough evidence on a balance of probabilities that the claimant’s pre-existing psychological impairments were exacerbated by the accident and likely resulted in new, accident-related psychological issues that warrant treatment.

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