Category: Incurred Expense

T.N. v. TD Insurance Company (19-005638)

The claimant sought entitlement to ACBs in excess of the total approved by the insurer. The insurer raised a preliminary issue that the Tribunal did not have jurisdiction to hear the matter because the claimant had not actually incurrent any attendant care expenses. Adjudicator Lester found that there was a dispute between the parties since the respondent only partially approved the request amount in Form 1, regardless of whether expenses had been incurred. Adjudicator Lester ultimately concluded that the claimant was entitled to ACBs in excess of the amount approved by the insurer, totalling 8 hours per day. With regard to cueing, Adjudicator Lester held that the time should be considered under the specific Form 1 activity, rather than as a supervisory function.

Aviva General Insurance v. Khan (2020 ONSC 1290)

The insurer sought judicial review of the Tribunal’s decision to award various medical benefits. The Court reviewed the Tribunal’s decision on a correctness standard and dismissed the appeal. It agreed with the insurer that a benefit could not be deemed incurred without a specific finding that the insurer unreasonably withheld or delayed payment of a benefit. However, the Court also wrote that the Tribunal’s decision made it clear that the benefit had been incurred because the services were provided and the claimant owed money to the treatment provider.

Applicant v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought a catastrophic impairment determination, entitlement to attendant care benefits, and the cost of various assessments. The claimant suffered from chronic pain, had not worked in the 10 years since the accident, and had been diagnosed with major depressive disorder. Pain prevented the claimant’s participation in home-based activities, and she rarely left the house. Adjudicator Parish found that the claimant suffered a Class 4 marked impairment in activities of daily living (no other spheres of function were found to be Class 4). In terms of the WPI, Adjudicator Parish would have assigned 40 percent for the psychological impairment and 7 percent for physical impairment, meaning that the claimant did not have a 55 percent WPI. Adjudicator Parish awarded retroactive ACBs of $507.03 per month for assistance with meal preparation. She rejected the claims for grooming (the claimant was capable of independent hair care), bathroom cleaning (which was found to be housekeeping, not attendant care); and basic supervisory care (the Form 1 category was for emergency assistance, but the claimant did not lack the capacity to respond to an emergency; emotional care was not an appropriate attendant care service). Adjudicator Parish also awarded the cost of an OT situational assessment related to the catastrophic impairment application. She also awarded the cost of the in-home assessment to complete the Form 1. Adjudicator Parish also held that the claimant was not required to meet the strict “incurred” definition for payment of ACBs, because the accident occurred in 2009. Interest was awarded on ACBs, but only from the date the Form 1s were submitted.

S.M. v. Wawanesa Mutual Insurance Company (18-008474)

The claimant suffered a catastrophic impairment in a 2000 accident due to a GCS of 4. He sought entitlement to ACBs of over $5,000 per month, and sought retro-active ACBs back to 2015. Adjudicator Johal held that the claimant was not entitled to elevated retroactive ACBs because he provided no evidence why it was impossible or impractical to submit an updated Form 1 in 2015. In terms of ACBs from the date of the Form 1 submission onwards, the claimant was entitled to some assistance with intermittent care and financial affairs; he was not entitled to 24-hour care because he was sufficiently able to manage his routines and was able to respond to emergencies or changes in his routine. In terms of the incurred expense requirement, Adjudicator Johal concluded that the post-2010 definition applied to all ACBs claimed after 2010, and that the claimant could only seek entitlement to the amount of assistance actually incurred.

C.M. v. Wawanesa Mutual Insurance Company (18-008199)

The claimant sought entitlement to attendant care benefits and a number of treatment plans for occupational therapy and physiotherapy services. Adjudicator Boyce concluded that the claimant was not entitled to attendant care as she had not demonstrated that the services were “incurred” pursuant to section 3(7)(e) of the SABS. The claimant did not provide evidence that the care was provided by a professional service provider, nor that her mother sustained an economic loss. Adjudicator Boyce also concluded that the disputed treatment plans were not reasonable and necessary, noting that aside from the OCF-18s listing her impairments and the retroactive expert reports, the claimant had provided no corroborating records from medical professionals to support the treatment sought nor the injuries claimed. Given the claimant’s failure to produce medical evidence concurrent with the accident, Adjudicator Boyce found no reason to interfere with the insurer’s determinations.

D.K. v. The Guarantee Company of North America (18-007722)

The claimant sought entitlement to attendant care benefits in the amount of $3,022.33 per month, physical treatment proposed in three treatment plans, and the cost of various expenses related to food, prescriptions, assistive devices, and other goods. Vice Chair Lester found that the claimant was entitled to the physical treatment plans and the cost of non-prescription Tylenol. The clamant was not entitled to attendant care benefits based on a finding that the benefits were not reasonable and necessary, and there was no evidence the non-professional service providers sustained an economic loss. The decision refers to a s. 25 Form 1 but it does not indicate that a s. 44 Form 1 was completed. Vice Chair Lester found that the recommendation for $3,022.33 in attendant care services did not coincide with the test results that demonstrated the claimant had the functional ability to complete tasks. Expenses related to fibromyalgia were not payable as this was a pre-existing condition, and the claimant had not submitted medical evidence to show the condition was worsened by the accident.

S.M. v. Federated Insurance Company of Canada (18-004533)

The claimant sought entitlement to $6,000 per month in ACBs from April 2012 onwards, and the cost of two assessments. Adjudicator Lake considered the time period prior to and after the February 1, 2014 changes to the incurred expense definition for non-professional service providers. She held that the claimant failed to prove that her niece suffered an economic loss. No ACBs were payable beyond the 104 week mark because the claimant had not proven a catastrophic impairment. Adjudicator Lake also concluded that the two proposed assessments were not reasonable and necessary. The first was for a Form 1 after the 104 week mark, prior to the claimant submitting an OCF-19. The second was for a clinic file review as part of a catastrophic impairment assessment, which the adjudicator found to be duplicative the services conducted as part of each approved constituent element of the catastrophic impairment assessments.

A.L. v. Aviva Insurance Canada (18-001867)

The claimant sought entitlement to ACBs, transportation expenses, and interest. Adjudicator Grant concluded that the claimant was entitled to attendant care benefits from February 22, 2016 to August 11, 2017 in diminishing amounts over that period. He found it unreasonable for the attendant care need to increase over time, and rejected the claimant’s Form 1s that increased over time. He also awarded the cost of transportation expenses in accordance with the Transportation Expense Guideline because the claimant suffered driving anxiety and was prohibited from driving while on pain medications. The awarded amounts were the amounts set out in the treatment plans, rather than the totals claimed by the claimant.

D.M. v. Aviva Insurance (17-003463)

The insurer sought reconsideration of the Tribunal’s decision to award ACBs beyond the 104 week mark despite the claimant not being designated catastrophically impaired, and the decision to deem the attendant care services incurred. Adjudicator Boyce granted the reconsideration. He held that the Tribunal made a significant error of law in awarding ACBs beyond the 104 week date, and that the claimant’s entitlement ended as of the 104 week date. Further, the adjudicator held that the Tribunal’s decision to deem the attendant care services “incurred” was a significant error in law because the Tribunal had not made any findings that the insurer unreasonably withheld or delayed the payment of ACBs.

D.M. v. Wawanesa Mutual Insurance Company (18-003314)

The claimant was catastrophically impaired as a result of a motorcycle accident. He sought entitlement to $6,000 per month in ACBs and entitlement to further physiotherapy. Adjudicator Hines awarded $3,047.29 per month in ACBs. The primary dispute was whether the claimant required 24/7 care. The adjudicator concluded that the claimant did not require 24/7 care. The claimant had the capability to function with a degree of independence. He was attending college and passing courses. While the claimant may have had a crisis in 2017, he made positive improvements and did not require 24-7 supervision for his safety. The claimant was awarded ACBs for dressing, grooming, meal preparation, hygiene, exercise, and some supervisory care for four hours per day. The attendant care services were incurred, as a professional service provided was providing the services. The claimant was also awarded part of one of the two treatment plans for physiotherapy.