Category: Housekeeping Expenses

Sgambelluri v. Aviva Insurance Company (20-009937)

The claimant applied to the LAT seeking entitlement to IRBs and HK expenses. Vice Chair Johal dismissed the claims. Regarding HK expenses, the claimant did not put contemporaneous evidence before the Tribunal proving an impairment with housekeeping activities. The reports the claimant relied upon were all from three years or more post-accident, and did not provide any objective testing relating to housekeeping activities. Regarding IRBs, the claimant again failed to submit contemporaneous evidence proving an impairment preventing her from returning to work. All reports the claimant relied upon were from past the 104 week mark, and did not prove an impairment within the first 104 weeks after the accident.

Hansen v. Aviva General Insurance Company (20-012796)

The claimant was involved in an accident and was deemed to be catastrophically impaired on May 23, 2018. The claimant applied for housekeeping and home maintenance (HH) benefits provided by her son prior to her CAT determination, for the period of October 4, 2015 to August 12, 2018. This claim was denied by the insurer. Adjudicator Norris held that the claimant was not entitled to the $14,900 claimed for HH provided by the claimant’s son. While the son was “employed” to provide HH services to the claimant, the claimant did not provide any evidence that her son provided these services in the course of his employment, occupation or profession in which he was ordinarily engaged in, or, sustained an economic loss as a result of providing the services. Additionally, Adjudicator Norris found that the claimant did not demonstrate that the benefits were unreasonably withheld or delayed by the insurer. The insurer’s delay in responding to the claim for HH benefits occurred between August 16, 2018 to October 5, 2018 had no impact on the claimant’s ability to incur the expense, as it occurred after the claimant’s incurred HH period of services from October 4, 2015 to August 12, 2018.

Kalk v. Intact Insurance Company (20-002839)

The claimant sought catastrophic impairment designation, as well as entitlement to attendant care benefits and housekeeping benefits. The 24 year old claimant suffered numerous fractures as a result of a head-on collision, and required multiple surgeries and nearly two months in hospitals and in-patient rehabilitation. Vice Chair Shapiro found that the claimant was catastrophically impaired under Criterion 7, accepting that her combined physical impairments (49%) and psychological impairments (20%) produced a 59% WPI rating, which surpassed the Schedule’s 55% threshold. Vice Chair Shapiro accepted the claimant’s Form 1 in the amount of $1,667.10 per month, but noted that it struck him as “excessive”, and encouraged the parties to provide the claimant with occupational therapy assistance on further strategies to complete attendant care tasks herself, rather than requiring indefinite assistance. Vice Chair Shapiro further found that housekeeping benefits were payable at the rate of up to $100 per week.

J.T. v. Certas Home and Auto Insurance Company (19-001148)

The claimant was injured in an accident in which a bus was struck by a train, and he was found to suffer a catastrophic impairment. He applied to the LAT claiming $166,437 in home modifications, $839,104 for the cost of a new home, weekly housekeeping expenses, and a special award. The insurer sought repayment of $8,747.42 in IRBs related to its error in not reducing IRBs at the claimant’s 65th birthday. Adjudicator Hines found that the home modifications were deemed incurred and ordered the insurer to pay same, even though the claimant had since moved. She found that the insurer had sufficient information from medical records and its own IE reports to support the need for the proposed modifications. The claimed cost of a new home was denied. The SABS is clear that the value of a new home cannot exceed the value of home modifications that are reasonable and necessary to accommodate a person’s disability. The proposed home cost was far in excess of the modifications found reasonable by the Tribunal. Adjudicator Hines also rejected the notion that the claimant should not have to allocate any proceeds from his original home to purchase a new home; that argument was unreasonable and not supported by the SABS or case law. Housekeeping expenses of $100 per week were awarded, as the claimant was found to need assistance of 12 to 13 per week. The service provider was the claimant’s wife, who was found to suffer an economic loss in relation to attendant care in an earlier FSCO decision. The insurer argued that the service provider could not “double dip” on the economic loss, and that time spent providing 24/7 supervision (which was being paid as ACBs), could not be used to count towards housekeeping services. Adjudicator Hines rejected this argument, holding that the SABS does not bar an insured from using the same service provider for housekeeping and attendant care, nor was a separate economic loss required to be proven. A special award of 25 percent was granted on the withheld home modifications, given that the insurer had already been found to have unreasonably withheld approval and payment of same. Finally, Adjudicator Hines granted the insurer’s repayment request of $8,747.42 in IRBs. The insurer mistakenly paid the claimant $400.00 per week after his 65th birthday and did not reduce the amount per the SABS until eight months later. The repayment request was made within 12 months, and complied with section 52. The insurer was permitted to reduce ongoing IRB payments by 20 percent until the repayment was complete

J.D. v. Intact Insurance Company (19-002767)

The claimant was involved in a motor vehicle accident in 2018. As a result of the accident, his leg was amputated. His injuries were deemed catastrophic by the insurer. The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $6,000 per month, housekeeping expenses, and numerous medical and rehabilitation benefits (including the cost of a home modification assessment in the amount of $8,858.78, the cost of alternative accessible housing in the amount of $1,126,560, and the cost of alternative short-term housing in the amount of $19,200). The proposed attendant care services included 24-hour supervision, which was recommended by an OT who opined that due to the acute nature of the applicant’s injuries he was incapable of responding to an emergency and thus required care of 24 hours per day. Adjudicator Manigat found that the claimant was entitled to attendant care benefits in the amount of $3,000.00 per month. Adjudicator Manigat was not persuaded that the claimant required 24-hour care, as he had been able to stay at a house alone and travel out of the country twice without attendant care services or supervision. Adjudicator Manigat found that the claimant required assistance with some but not all housekeeping tasks and was entitled to $50 per week for housekeeping benefits, rather than $100 per week. The claimant was found entitled to the majority of the disputed medical and rehabilitation benefits, including provider mileage costs, parking costs, case management services, medical marijuana, an iPhone, and $8,858.78 for the Adapt-Able Design housing assessment. The claimant was not entitled to social work services that duplicated approved psychotherapy services and was not entitled to further psychological services as he failed to attend previously approved treatment sessions. The claimant was not entitled to the cost of alternative accessible housing in the amount of $1,126,560. Adjudicator Manigat found that while the claimant did require alternative housing to meet his disability needs, the report recommending alternative accessible housing failed to take into consideration a home that the claimant already co-owned with his siblings, which was a “potential, legitimate option.” The claimant was found entitled to a treatment plan proposing alternative short-term housing in the amount of $19,200.

Stewart v. Certas Home and Auto Insurance Company (20-004275)

The claimant applied to the LAT seeking entitlement to ACBs and housekeeping expenses. The insurer had determined that the claimant was catastrophically impaired as a result of the accident and that ACBs were reasonable and necessary. The dispute was over the extent of ACBs to be provided and whether housekeeping benefits were reasonable and necessary. Adjudicator Ferguson found that the claimant was physically capable of performing his housekeeping and self-care tasks, but he required queuing and encouragement to actually engage in those tasks, and that he had previously benefited from the support of an RSW and PSW. Adjudicator Ferguson found that the claimant was entitled to monthly ACBs in an amount that was between the amounts proposed in the Form 1s of the parties. The claimant was also found entitled to housekeeping benefits. The housekeeping services proposed in the claimant’s Form 1 were a duplication of the housekeeping expenses, and therefore not reasonable and necessary.

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.

M.G. v. Aviva General Insurance Company (19-003062)

The claimant applied to the LAT seeking entitlement to housekeeping and home maintenance expenses, the cost of a chronic pain assessment, and the cost of two OCF-3s. Adjudicator Farlam dismissed the claimant’s dispute. The claimant had purchased optional HK expenses in her policy. The insurer paid HK expenses for February 11, 2017 to April 12, 2017. There is no evidence that expense forms were submitted by the claimant for April 13, 2017 to March 16, 2018. In this hearing the claimant sought HK expenses of $904.00 for March 16, 2018 to February 5, 2019, a period some 13 to 24 months post-accident. Adjudicator Farlam noted that she preferred the evidence of the insurer’s OT, who was the only assessor to observe the claimant in her house and who assessed the claimant several months after the accident, and who concluded that the claimant was able to perform housekeeping duties. Adjudicator Farlam also preferred the evidence of the IE physiatrist who noted that the claimant suffered soft tissue injuries and did not suffer a substantial inability to perform her pre-accident housekeeping tasks. With respect to the disputed chronic pain assessment, Adjudicator Farlam relied on the surveillance obtained by the insurer which showed the claimant driving in inclement weather, brushing snow off her car, walking through a parking lot, and retrieving bags from her truck. Adjudicator Farlam also noted that the claimant’s s. 25 chronic pain report did not enumerate or address the application of the criteria for chronic pain in the AMA Guides and was therefore not persuasive. The adjudicator dismissed the claims for the cost of the two disability certificates as the insurer did not request the updated OCF-3s and there was no medical evidence to suggest they were required.

Gareau v. Economical Mutual Insurance Company (19-011520)

This is a preliminary decision over whether a claimant could apply to the Tribunal and dispute his claim for a housekeeping and home maintenance expenses denied by the insurer prior to receiving a catastrophic impairment designation, despite the claimant not yet being found to suffer a catastrophic impairment. Adjudicator Johal held that based on the Ontario Court of Appeal decision of Tomec v Economical, the claimant would not be barred from bringing his claim for HK expenses once he has “discovered” his entitlement. However, Adjudicator Johal agreed with the insurer that the claimant did not yet have a cause of action because he had not been deemed to be catastrophically impaired, and he would not be prejudiced by withdrawing his application and bringing the application before the Tribunal if, and when, he was deemed catastrophically impaired. To dispute the benefits at this stage when the claimant had yet to apply for a claim of a catastrophic impairment would create an absurd result by permitting the claimant to dispute a claim for HK expenses, to which he had no entitlement until his medical status deteriorated to the point of a catastrophic impairment designation.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought a catastrophic impairment based on a 55 percent impairment, IRBs, housekeeping expenses, and medical benefits. The insurer argued that the claimant’s impairment arose from an earlier workplace accident, and that he was not entitled to any of the claimed benefits or a catastrophic impairment designation. Adjudicator Flude agreed with the insurer and dismissed the claims. He held that the claimant failed to prove that the accident was the cause of his impairments. The primary issue related to tears in the shoulder. Adjudicator Flude held that that tears were a result of the workplace injury, and not the accident. Further, he found that the claimant’s experts wrongly attributed 18 percent WPI for potential future surgery, holding that the SABS did not permit speculative future impairment in the WPI calculation. He also concluded that the three percent WPI for medication was not proper to include because it related to medications for conditions unrelated to the accident. Without those percentages, the claimant’s total WPI was below 55 percent. Adjudicator Flude also concluded that the claimant was not entitled to IRBs because he was not working at the time of the accident. The housekeeping expenses were denied as well. Only after the accident did he re-start his carpentry business. Finally, the claimed medical benefits were denied because they related to treatment for the shoulder, and the claimant also failed to prove that the treatment was providing relief.