Category: Attendant Care Benefits

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.

J.B. v Motor Vehicle Accident Fund (19-003638)

The claimant disputed her entitlement to attendant care benefits and various medical benefits. Adjudicator Paluch found that the claimant was not entitlement to attendant care for the period in dispute because she did not submit a Form 1 in accordance with the SABS nor did she demonstrate that her expenses were incurred. However, Adjudicator Paluch determined that the remaining amounts for two partially approved physiotherapy treatment plans as the respondent failed to provide medical reasons and comply with section 38(8) of the SABS. The insurer simply advised that the treatment “appeared excessive”, without providing any details or particulars of what part of the services was excessive and why.

J.P. v. Aviva General Insurance (19-004854)

The claimant sought attendant care benefits for two separate periods post-accident, a special award and interest on overdue payments. The insurer argued that the claimant failed to provide proof of expenses incurred for the periods claimed and his wife, who was a retired nurse at the time that she provided care to the claimant, failed to provide evidence of economic loss. Adjudicator Boyce held that the claimant was not entitled to attendant care for either period in dispute as the claimant had not shown that the service provider met the definition under the SABS or that the provider sustained an economic loss. Adjudicator Boyce also denied the claim for an award as he found no evidence of bad faith.

R.T. v Coseco Insurance Company (18-004783)

The claimant filed a motion to withdraw some of the issues listed for an upcoming LAT hearing on a without-prejudice basis. The insurer submitted that the issues not identified for withdrawal (namely attendant care benefits) were still in dispute, while the claimant submitted that the issue of attendant care benefits was previously determined in a preliminary issue decision that was upheld on reconsideration. Adjudicator Punyarthi concluded that the claimant was permitted to withdraw issues without prejudice, noting that there was no basis for imposing a generalized “with prejudice” withdrawal of issues in this case. If an issue is brought back, the claimant would have a right to have that issue considered and decided on the merits. Adjudicator Punyarthi also determined that attendant care benefits were not an issue in dispute because the issue had already been decided and upheld on reconsideration, and the Tribunal could not re-hear the issue at this stage.

Z.S. v Intact Insurance Company (19-000175)

The claimant was deemed catastrophically impaired, and sought entitlement to attendant care benefits which were denied by the insurer on the basis that the claimant’s alleged service provider, his wife, did not meet the requirements for a provider under the SABS and did not incur an economic loss. The claimant’s wife was laid off by her employer as a result of the company’s bankruptcy prior to the accident. The claimant argued that but for the accident, his wife would have returned to work but could not due to her having to provide attendant care to the claimant. Adjudicator Boyce found that the claimant was not entitled to attendant care benefits for the period in dispute. The 39 invoices provided in support of the claim were identical and void of details of the expenses allegedly incurred in providing care, with no mention of how many hours of attendant care the claimant’s wife provided on a daily, weekly, or monthly basis. Adjudicator Boyce stated that without this information, it was difficult to analyze what the claimant’s wife did, for how long she did it, and what economic loss she incurred as a result.