Category: Incurred Expense

Gupta v. TD Insurance Meloche Monnex (19-010353)

The claimant applied to the LAT seeking entitlement to the cost of examinations, post-104 IRBs, ACBs, and a special award. The claimant was involved in a motor vehicle accident in 2016. Her injuries were found to include post-concussion syndrome and chronic pain. She received long-term disability benefits until 2020 (when she received an advance buyout of her long-term disability benefits) and CPP Disability benefits from 2017 to 2020. Adjudicator Grant did not find the s. 44 post-104 IRB reports compelling, as the opinions were provided individually and there was no consideration of the combined impact of the claimant’s impairments on her ability to return to work. Adjudicator Grant found that the claimant was entitled to post-104 IRBs and a neuropsychological cognitive assessment. She was not entitled to a language pathology assessment. The claimant did not have the financial means to pay for attendant care services. As such, Adjudicator Grant found that the claimant had failed to prove that she incurred any ACBs, and she was not entitled to payment of ACBs. Finally, Adjudicator Grant found that the insurer’s failure to provide s. 44 assessors with all the clinical notes and records of the claimant did not meet the threshold for granting an award, and the claim for a special award was dismissed.

Micu v. The Personal Insurance Company (20-006746)

The claimant sought entitlement to attendant care benefits in the amount of $3,079.00 per month. At issue in the hearing was whether the claimant: (a) had proven that she incurred expenses for attendant care, and (b) the service provider sustained an economic loss due to providing attendant care services. The claimant submitted that her partner sustained an economic loss of $778.00 per month while providing attendant care services, as the partner had reduced her work scheduled by one 8-hour shift per week to accommodate the claimant’s care needs. Upon review of the partner’s income and employment documentation, Vice Chair McGee found no marked difference her pre-accident and post-accident hours of work and earnings. Vice Chair McGee noted that while she was sensitive to the impact the accident had likely had on the claimant and her partner, the SABS reflected a clear intention on the part of the legislature to compensate non-professional attendant care providers only up to the amount of the economic loss. As the claimant had failed to establish that her partner had suffered monthly economic loss, she had not met her onus in proving that she incurred the claimed attendant care services, and the claim was dismissed.

Micu v. The Personal Insurance Company (20-006746)

The claimant sought entitlement to attendant care benefits in the amount of $3,079.00 per month. At issue in the hearing was whether the claimant: (a) had proven that she incurred expenses for attendant care, and (b) the service provider sustained an economic loss due to providing attendant care services. The claimant submitted that her partner sustained an economic loss of $778.00 per month while providing attendant care services, as the partner had reduced her work scheduled by one 8-hour shift per week to accommodate the claimant’s care needs. Upon review of the partner’s income and employment documentation, Vice Chair McGee found no marked difference her pre-accident and post-accident hours of work and earnings. Vice Chair McGee noted that while she was sensitive to the impact the accident had likely had on the claimant and her partner, the SABS reflected a clear intention on the part of the legislature to compensate non-professional attendant care providers only up to the amount of the economic loss. As the claimant had failed to establish that her partner had suffered monthly economic loss, she had not met her onus in proving that she incurred the claimed attendant care services, and the claim was dismissed.

Frymus v. Aviva Insurance Canada (19-000055)

The claimant applied to the LAT for entitlement to ACBs. Vice-Chair McGee found that the claimant failed to prove entitlement to ACBs for the relevant time period. It was undisputed that the claimant was entitled to attendant care directly following the accident. At issue before the Tribunal was whether the claimant submitted appropriate proof of the services he incurred, and whether he established that his wife, who had provided his care, had sustained economic loss as a result. The Tribunal found that it had no power to order the payment of expenses incurred before submission of Form 1, limiting the claimant’s overall entitlement. Further, the claimant failed to establish his wife’s economic loss. The tax returns submitted showed a decrease in her annual income but did not establish what that income would have been but for the attendant care services. The wife’s income for the two years prior to the accident showed fluctuations as well, and without more information it was not possible to make a final determination.

Fahritdinov v. Aviva General Insurance (19-009897)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Norris concluded that the claimant was not entitled to the benefits claimed. The claimant sustained injuries to his neck, shoulder, back, and knee as a result of the accident and required surgical intervention. Adjudicator Norris found that while the claimant may have experienced some changes to his life, he failed to demonstrate that he suffered a complete inability to carry on a normal life as a result of accident-related impairments. Thus, the claimant was not entitled to NEBs. Similarly, the claimant required attendant care services immediately following the June 20, 2018 surgery on his right knee. However, Adjudicator Norris found that the claimant had recovered from the surgery and no longer needed the assistance claimed. There was nothing in the evidence to suggest that the benefit was incurred, or that it was not incurred due to the insurer unreasonably withholding payment. There was a difference between what the Form 1 said and what the claimant reported to his assessors regarding his personal care abilities. He reported that he showered and completed most of his housekeeping and home maintenance tasks independently and that he had no limitations with respect to personal care. The application was dismissed.

Aviva Insurance Company of Canada v. Suarez (2021 ONSC 6200)

The insurer appealed the Tribunal’s decision awarding four treatment plans for chiropractic therapy, two as reasonable and necessary, and two others due to non-compliant section 38 notices. The insurer argued that because the claimant had not received the treatment, she was not permitted to apply to the LAT. The Court rejected the insurer’s position, holding that the claimant did not have to receive treatment prior to disputing her entitlement. The Court agreed, however, that payment for the treatment plans was not required until the claimant incurred the treatment. The Court also preserved the insurer’s ability to dispute payment upon receipt of invoices and incurred expenses, and held that interest was only payable once the treatment was incurred.

M.N. v. Aviva General Insurance (19-001788 and 19-007595)

The claimant sought entitlement to attendant care benefits in the amount of $272.46 per month. Adjudicator Ferguson noted that to be payable, attendant care benefits must be incurred by the claimant, as defined by section 3(7) of the SABS, but the claimant submitted no evidence of same. The claimant relied on section 3(8) of the SABS, which allows the Tribunal to deem expenses incurred where an insurer has acted unreasonably, arguing that the insurer ignored the submitted Form 1. Adjudicator Ferguson felt that it would be inappropriate to deem the expenses incurred, given that the claimant had not taken any steps to obtain, source, or price any potential attendant care, as well as the lack evidence that any family member or other person would have incurred any economic loss in providing attendant care. There was no persuasive evidence that the claimant would have incurred this expense if not for the inaction of the insurer, and as such, the claim for attendant care benefits was dismissed.

M.N. v. Aviva General Insurance (19-001788 and 19-007595)

The claimant sought entitlement to attendant care benefits in the amount of $272.46 per month. Adjudicator Ferguson noted that to be payable, attendant care benefits must be incurred by the claimant, as defined by section 3(7) of the SABS, but the claimant submitted no evidence of same. The claimant relied on section 3(8) of the SABS, which allows the Tribunal to deem expenses incurred where an insurer has acted unreasonably, arguing that the insurer ignored the submitted Form 1. Adjudicator Ferguson felt that it would be inappropriate to deem the expenses incurred, given that the claimant had not taken any steps to obtain, source, or price any potential attendant care, as well as the lack evidence that any family member or other person would have incurred any economic loss in providing attendant care. There was no persuasive evidence that the claimant would have incurred this expense if not for the inaction of the insurer, and as such, the claim for attendant care benefits was dismissed.

Thring v. Economical Insurance Company (20-000309)

The claimant applied to the LAT seeking entitlement to ACBs and transportation expenses associated with a psychological assessment. The insurer accepted the claimant’s entitlement to ACBs prior to denying entitlement base on its own Form 1. Vice-Chair McGee found that ACBs were not payable as the claimant failed to establish that the expenses he claimed were “incurred” as defined in the SABS. Vice-Chair McGee also noted the insurer would not have been liable for amounts incurred prior to completion of the claimant’s Form 1. The claimant failed to tender the OCF-18 proposing the disputed transportation expenses and simply asserted the expense was reasonable. Vice-Chair McGee found that the claimant failed to establish that the claimed expenses satisfied the requirements of s. 15 of the SABS. The application was dismissed.

H.L. (By Her Litigation Guardian) v. Economical Insurance Company (20-002966)

The claimant was involved in an accident in 2014. The insurer determined that she was catastrophically impaired in 2018. The claimant received attendant care services from a hired attendant care services provider for the period of July 2014 to March 2020. Due to the COVID pandemic, after March 2020 the claimant’s family decided to have the claimant monitored by her son rather than a paid attendant care services provider. Until the fall of 2020, the insurer took the position that the claimant was barred by the limitation period from receiving payment for ACBs. In September 2020, following the reversal of its legal position following the Court of Appeal’s reasons in Tomec v Economical, the insurer paid the amount of ACBs incurred from July 2014 to March 2020, plus interest. The amount incurred and paid was less than the maximum amount of $6,000.00 per month available to catastrophically impaired persons. The claimant applied to the LAT seeking entitlement to ACBs in the amount of $6,000 per month from May 2016 to date. The argued that additional amounts for ACBs up to $6,000 should be deemed incurred to date or until March 2020, if the claimant’s son was found not to have suffered an economic loss. Adjudicator Farlam found that there was no basis for finding that the insurer unreasonably withheld or delayed payment of ACBs and declined to deem that ACBs had been incurred, pursuant to section 3(8) of the SABS. The claimant failed to demonstrate that her son suffered any economic loss in providing alleged attendant care services. Adjudicator Farlam also held that the insurer did not act unreasonably by denying ACBs based on the limitation period, prior to the release of Tomec v. Economical. Once the decision was released, the insurer paid the claimant the incurred ACBs plus interest.