Category: Incurred Expense

R.A. v. Aviva Insurance Company (19-002890)

The claimant applied to the LAT for entitlement to ACBs, a variety of OCF-18s for treatment and assessments, the cost of a psychological pre-screen, the cost of two OCF-3s, and a special award. Based on monthly invoices for ACBs (all in the same amount), which did not particularize the exact dates or times services were provided or provide information about the service provider, Adjudicator Lake was unable to find on a balance of probabilities that the applicant had received attendant care services. Adjudicator Lake found that a failure to advise the claimant of eligibility for ACBs upon removal of the MIG did not constitute an unreasonable withholding or delaying of benefits. ACBs were not deemed to be incurred pursuant to section 3(8). Pursuant to s. 38(11), Adjudicator Lake found benefits proposed in multiple OCF-18s were payable because the insurer did not include specific details about the claimant’s medical condition in its denial letters. Adjudicator Lake found that the claimant was not entitled to ACBs, the cost of the psychological pre-screen, the cost of the two OCF-3s, chronic pain treatment, psychological treatment, a driver re-integration program, or OCF-18s that were duplicates of other approved OCF-18s. The claimant was entitled to shockwave therapy, a psychological assessment, a chronic pain assessment, and an exercise program.

M.Z. v. Certas Home and Auto Insurance (19-005344)

The minor claimant suffered serious injuries in an accident. He received attendant care for over one year, but ACBs were terminated thereafter. He sought entitlement to further ACBs and one medical benefit for physiotherapy. Adjudicator Boyce denied the claim for further ACBs, but partially approved the claim for physiotherapy. The medical evidence suggested that the minor claimant had largely healed from his physical injuries within the year. The claimant’s treating surgeons and doctors had noted that the claimant’s injuries had resolved and the claimant was participating in normal activities. Adjudicator Boyce also noted that the claimant’s Form 1 oddly recommended support with activities that his parents were performing before the accident (meal preparation, bathroom cleaning). Further, there was no evidence of attendant care services being incurred.

J.Z. v. Certas Home and Auto Insurance (19-005337)

The minor claimant suffered a broken arm in an accident. He received attendant care for over one year, but ACBs were terminated thereafter. He sought entitlement to further ACBs and one medical benefit for physiotherapy. Adjudicator Boyce denied both claims. The medical evidence suggested that the minor claimant had largely healed from his physical injuries within the year. The claimant’s treating surgeons and doctors had noted that the claimant’s injuries had resolved and the claimant was participating in normal activities. Adjudicator Boyce also noted that there was no evidence of attendant care services being incurred.

D.S. v. Aviva Insurance Company of Canada (18-006592)

The insurer sought reconsideration of the Tribunal’s award of medical benefits based on section 38 deficient denials, on the basis that the Tribunal failed to consider whether the benefits were incurred. Adjudicator Grant dismissed the reconsideration request. While he agreed with the insurer that the benefits were not deemed incurred under section 3(8), he also explained that a benefit was only payable if it meets the requirements of the SABS (i.e. payment is owed once incurred, and interest owed once overdue).

A.A. v. Aviva Insurance Company (18-011152)

The claimant sought entitlement to attendant care benefits of $2,442.67 per month for a seven month period. Adjudicator Boyce concluded that the services identified on the claimant’s Form 1 could not reasonable be associated with the claimant’s accident-related impairments when he continued to work in his pre-accident employment, had not seen his family physician, and was not using any prescription medications. The claimant also failed to prove what services were incurred by his service provider.

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.”

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.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.

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.

J.W. v. Security National Insurance Company (18-008988)

The claimant sought entitlement to ACBs. Adjudicator Norris found that the claimant was entitled to attendant care benefits, even though the claimant had returned to an intellectually challenging vocation (litigation lawyer) which required long work days. Since the evidence indicated that the claimant suffered ongoing fatigue as a result of a traumatic brain injury and other serious physical injuries, the claimant would require assistance with fatigue, memory loss, and irritability. However, Adjudicator Norris found that the claimant was not entitled to payment for any expenses to-date because expenses did not meet the definition of an “incurred expense”. Adjudicator Norris explained that neither service provider (his wife and his “house helper”) was doing so within the course of their employment, occupation, or profession.