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.

Y.K. v. Aviva General Insurance Company (18-003926)

The claimant suffered a brain injury and was deemed catastrophically impaired as a result of a 2011 accident. He received personal care from his brother, who left multiple part-time jobs to care for him. The Form 1 supported $6,000 per month in ACBs, but the claimant’s brother suffered an economic loss of $2,100 per month based on his income in the year prior to the accident; however, following the 2014 amendments to the SABS, the insurer paid $1,528.91 per month based on the average income earned by the brother in the three years prior to the accident. In 2018, the claimant hired a professional service provided in order to utilize the full $6,000 per month Form 1. The insurer received an invoice, but never paid it. The claimant sought entitlement to the full Form 1 amount, arguing that it was “deemed incurred” or that the 2014 amendments to the SABS did not apply. He also sought entitlement to HK expenses and a special award. Adjudicator Lester concluded that the 2014 amendments to the SABS applied and that the claimant was only entitled to the economic loss suffered by his brother. However, she accepted that lost opportunities and “fringe benefits” (IE, CPP, extended health care benefits) could form the basis of an economic loss, but required a sufficient evidentiary basis. The claimant did not have sufficient evidence to prove the projected scenarios he put before the Tribunal, so his economic loss was limited to his foregone wages. Adjudicator Lester also found services by the professional to be deemed incurred for a period of 10 months (the time between submission of the invoice up to the payment of the invoice). Adjudicator Lester awarded HK expenses, finding that the claimant was responsible for cleaning tasks prior to the accident and that he could no longer perform such tasks. Further, services were incurred because the claimant’s brother had given up his work. Finally, the adjudicator held that the insurer improperly withheld ACBs by paying only $1,528.91 per month. A special award of 50 percent based on the shortfall of $571.09 per month was granted for services provided by his brother, all amounts provided by the professional service provider which were deemed incurred, and all awarded HK expenses.

S.R. v. Certas Home and Auto Insurance Company (18-006442)

The claimant was deemed catastrophically impaired. He sought entitlement to ongoing HK expenses, and entitlement to the rent differential for a larger rental home. Adjudicator Paluch rejected both claims. While he held that the claimant suffered a substantial inability to perform housekeeping tasks, he also found that the claimant had not incurred expenses related to housekeeping and concluded that the insurer had not unreasonably withheld HK expenses. In terms of the claim for rent differential, the adjudicator noted that the claimant failed to put sufficient evidence before the Tribunal regarding his current rent, the current rental market rates, the amount the claimant received for rent from his brother, or why a larger unit was needed (as opposed to removing some of the clutter in the current unit).

W.E. v. Wawanesa Mutual Insurance Company (17-002054)

The claimant sought entitlement to housekeeping expenses, and the cost of obtaining her employment file for the insurer. Adjudicator Gosio held that the claimant had proven that she suffered a substantial inability to perform the housekeeping services she normally performed prior to the accident, but that she did not prove that the expenses were incurred. The claimant’s only evidence regarding the economic loss of her sister (the service provider) was a statement in the claimant’s affidavit that the sister took a leave of absence from her employment. The adjudicator also held that the expenses could not be deemed incurred because the insurer had provided the claimant with an explanation of benefits earlier in the claim. The insurer was not required to explain the intricacies of the “incurred expense” definition. Finally, Adjudicator Gosio held that the Tribunal could not order the insurer to pay costs to the claimant for her employment records because the insurer had not acted unreasonably or vexatiously.