Category: Incurred Expense

Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.

Simpson v. Nordic Insurance Company of Canada (21-000662)

The claimant applied to the LAT seeking entitlement to attendant care benefits, rehabilitation benefits, and a special award. The claim for ACBs was made for two distinct periods. The LAT found the claimant was not entitled to ACBs for the first period claimed as the benefits had not been incurred. The LAT did not accept that the claimant did not receive proper notice that ACBs had been approved and declined to deem the expenses to have been incurred. The approval had been sent to the claimant by letter, which was also faxed to the claimant’s counsel. The claimant was entitled to the disputed rehabilitation benefits and ACBs for the second period claimed. A special award was granted. The LAT found the insurer gave unreasonable weight to s. 44 opinions (compared to other medicolegal reports and the records of treating practitioners) when denying ACBs and life skills training. The LAT found the insurer’s decision was unreasonable and lacked transparency.

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.

Nesbesnuik v. Aviva General Insurance Company (20-007540)

The claimant applied to the LAT seeking entitlement to an attendant care benefit (“ACBs”) and assistive devices including a lawnmower with snow blower attachment, cell phone, and computer. Adjudicator Pahuta found that the claimant had failed to establish that ACBs had been incurred. The only evidence before the Tribunal was a written statement authored by the claimant, which was insufficient. Adjudicator Pahuta further concluded that the disputed lawnmower would fall under the housekeeping and home maintenance activities exception of s. 16(3)(l)(ii) meaning that it would not be payable as a rehabilitation benefit. Regarding the cell phone and computer, the Tribunal determined that the claimant failed to establish that either device was reasonable and necessary. Adjudicator Pahuta relied heavily on the fact that the claimant had failed to establish why these specific branded items were required and whether these expenses were truly considered accident-related. The application was dismissed.

Carleton v. Unica Insurance Inc. (20-002008)

The claimant was injured in an accident and applied for an attendant care benefit but was denied on the basis that it was not reasonable or necessary. Vice Chair Johal found that the claimant was entitled to 315 minutes per week of attendant care that had been incurred for feeding and 45 minutes per week for attendant care for hygiene. Relying on the findings from the claimant’s occupational therapist, Vice Chair Johal found that the attendant care for feeding and hygiene was reasonable and necessary based on the claimant’s self-reported dizziness and decreased balance. Vice Chair Johal held that the claimant was not entitled to 1260 minutes per week (3 hours per day) of basic supervisory care. The basic supervisory care was not reasonable or necessary as the claimant testified that she was able to identify and respond to an emergency situation. Regarding whether the benefit was incurred or not, the claimant’s mother and husband provided attendant care. However, the claimant failed to produce any evidence of an economic loss of the claimant’s husband or mother, nor was there any evidence that either of them were providing attendant care assistance in the course of the employment, occupation or profession in which they would ordinarily have been engaged. As such, Vice Chair Johal found that the attendant care benefits were not incurred.

Morrisey v. Wawanesa Insurance Company (2022 4398)

The claimant was injured in an accident in 2000, while the 1996 SABS applied. In 2018, the claimant filed a LAT dispute for (among other things) retroactive attendant care benefits. The Tribunal found the claimant was not entitled to retroactive ACBs because he had no excuse for the late Form 1. The Tribunal also held that the incurred expense definition applied to the claimant’s ACBs going forward, and that he was entitled to interest at the rate of 1 percent per month for overdue ACBs. The claimant appealed all three findings. The Divisional Court granted the appeal with respect to interest, holding that the Divisional Court decision in Federico v. State Farm, and the Court of Appeal’s decision in Sidhu v. State Farm, governed the outcome and that two percent interest applied for all claims related to accidents prior to September 2010. The Court dismissed the appeal on the other issues. The Court agreed that the Tribunal correctly held that the claimant was required to show why there was a delay in submitting his Form 1, and that the Tribunal’s conclusions related to the claimant’s arguments were questions of fact that were not open to appeal. The Court also agreed that the Tribunal correctly held that the incurred expense definition applied to all ACBs claims after September 2010 because the definition was a procedural change rather than a substantive change to the SABS.

Joslin-Mielke v Pembridge (19-012118)

The claimant applied to the LAT after a dispute regarding the appropriate quantum of ACBs. The claimant argued that due to the complexities of her injury and impaired mobility she would require emergency assistance throughout the night and when traveling within the community. The insurer had already made payment to the claimant for ACBs but denied that any further benefit had been incurred beyond the amount that had been paid. Adjudicator Reilly found that the claimant had not incurred addition ACBs. Section 3(7)(e) of the SABS provides the criteria that must be satisfied to prove that an expense has been incurred. The claimant failed to provide sufficient invoices or other evidence to support her position and the invoices which had been submitted failed to accurately document the services provided. The Tribunal has held that sufficient particulars must be provided to satisfy the criteria required for an incurred expense and that the claimant in this case failed to meet the established threshold.

Gichuki v TD Insurance Meloche Monnex (20-004631)

The claimant sought entitlement to attendant care benefits in the amount of $7,644.34, less $225.75 approved by the insurer, per month, from May 22, 2018 and ongoing. Vice Chair McGee found that attendant care benefits were not payable prior to October 31, 2019 when she submitted an Assessment of Attendant Care Needs (Form 1), pursuant to section 42(5) of the SABS. In submissions, the claimant significantly narrowed the scope of her claim, seeking payment only for her incurred expenses, equal to $220.32 per month. The attendant care services were provided by the claimant’s friend and personal support worker. Despite their friendship, Vice Chair McGee accepted that the provider qualified as a professional service provider who provided the claimant with services in the course of a profession in which she would ordinarily have been engaged but for the claimant. The timesheets provided established that the claimant received a total of 33 hours of attendant care between November 2020 and February 2021. As such, Vice Chair McGee found that the claimant was entitled to be reimbursement for 33 hours of attendant care expenses, payable at a rate of $14.00 per hour (per the Rate Guideline), for a total of $462.00, with interest.

Robinson v. AIG Insurance (20-003795)

The claimant was involved in a serious motor vehicle accident in March 2019 and was determined to be catastrophically impaired by the insurer. She applied to the LAT seeking entitlement to ACBs and various medical/rehabilitation benefits. All issues in dispute except ACBs, a special award, and costs were withdrawn after the commencement of the hearing. The hearing in this matter began with the claimant’s motion to have Vice-Chair Farlam recuse herself from the hearing. This was the 18th motion brought during the proceeding. Two reasons were submitted for the recusal request: (1) the claimant had been denied the right to add 14 witnesses to the hearing, and (2) the allegation that Vice-Chair Farlam had a “leaning, inclination, bent or predisposition” favouring insurers. The recusal motion was denied. With regards to the benefits in dispute, Vice-Chair Farlam found that the claimant was not entitled to payment for ACBs because she had not proven that the ACBs in dispute were incurred. Vice-Chair Farlam declined to use her discretion to deem the expenses incurred. The claim for a special award was denied. Vice-Chair Farlam order the claimant to pay $100 for 5 motions that were unreasonably brought without sufficient notice and too late in the proceedings (i.e., on the eve or during the hearing).

Micanovic v. Intact Insurance (2022 ONSC 1566)

The claimant appealed a production order made by the Tribunal for him to produce personal and corporate income tax records from his housekeeping provider. The Divisional Court granted the appeal and set aside the order. The Court explained that even though the production order was interlocutory, the order was “fatally flawed” and had to be set aside. First, the Tribunal erred in its understanding of the housekeeping claim. The productions were ordered produced on the belief that an economic loss was being advanced by the claimant and service provider. To the contrary, the housekeeper stated that she was acting in the course of employment though a company that existed prior to the claimant’s accident. Second, the Tribunal believed that the housekeeping provider was the spouse of the claimant. That finding was an error and not supported by any evidence, nor argued by either party. Finally, the claimant had no control or power to produce the records of the housekeeper, and could therefore not be ordered to produce the records.