Category: Incurred Expense

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.

Applicant v. Motor Vehicle Accident Claims Fund (17-001681)

The claimant suffered a catastrophic impairment following a motorcycle accident which caused a traumatic brain injury. He sought entitlement to NEBs, ACBs, a rehab support worker, home modifications, and a special award. The Fund denied his entitlement to the claimed benefits. It also argued that the claimant did not have a valid licence and was not entitled to NEBs, and that no attendant care services had been incurred. Regarding the exclusion, Adjudicator Hines concluded that it did not apply because the claimant did have a valid driver’s licence (G1) even though it was not the proper licence for operating a motorcycle. She awarded NEBs, concluding that the claimant’s life had changed significantly following the accident. Even though the claimant was receiving ODSP for various disabilities before the accident, the brain injury resulted in significant changes in the claimant’s independent functionality. ACBs were also awarded at the rate of $6,000 per month. Adjudicator Hines concluded that 24 hour care was reasonable based on the claimant’s brain injury and the need for constant supervision. She also held the ACBs to be deemed incurred up to the date of the hearing because the Fund had failed to consider its IEs with a critical eye to ensure that they were medically sound and unbiased. Rehab support worker services were awarded because it was reasonable to teach the claimant skills and strategies to reintegrate into the community. Home modifications were not awarded because the majority of recommended modifications were for someone with severe physical disability rather than a brain injury. Finally, Adjudicator Hines granted a special award in relation to ACBs and the rehab support worker. She concluded that the denials were unreasonable and that the Fund did not critically consider its own IE reports. The Fund also failed to follow the recommendations of its own independent adjustors.

E.E. v. Aviva Insurance Company (16-004281)

The insurer sought reconsideration of the Tribunal’s decision that the claimant had sustained a catastrophic impairment and was entitled to attendant care benefits. Associate Chair Jovanovic denied the request for reconsideration. He held that the adjudicator did not err in preferring the evidence and opinions of the claimant’s experts and treating physicians, and that it was not an error to accept an opinion of the claimant’s treating physician. In terms of attendant care benefits, the Associate Chair held that the claimant’s spouse could provide professional services without providing such services through an independent contracting company; he held that the spouse’s leave from work at the time of the accident did not prevent the spouse from acting as a professional service provider after the accident; and held that the verbal promise to pay the spouse was sufficient to meet the “incurred” definition. The Associate Chair also upheld the payment of attendant care for overnight supervision by the spouse.

E.E. v. Aviva Insurance Company (16-004281)

The insurer sought reconsideration of the Tribunal’s decision that the claimant had sustained a catastrophic impairment and was entitled to attendant care benefits. Associate Chair Jovanovic denied the request for reconsideration. He held that the adjudicator did not err in preferring the evidence and opinions of the claimant’s experts and treating physicians, and that it was not an error to accept an opinion of the claimant’s treating physician. In terms of attendant care benefits, the Associate Chair held that the claimant’s spouse could provide professional services without providing such services through an independent contracting company; he held that the spouse’s leave from work at the time of the accident did not prevent the spouse from acting as a professional service provider after the accident; and held that the verbal promise to pay the spouse was sufficient to meet the “incurred” definition. The Associate Chair also upheld the payment of attendant care for overnight supervision by the spouse.

C.S. v. Wawanesa Mutual Insurance Company (17-008727)

The claimant sought entitlement to various medical benefits and cost of assessments. Adjudicator Ferguson denied the benefits incurred before the submission of a treatment plan and denied the treatment plan for nutritional counselling. He awarded the cost of approved assistive devices, but ordered that the claimant had to incur the cost of the devices before the insurer was required to pay for them. There was no reason why the Tribunal should deem the expenses incurred.

K.T. v. Aviva General Insurance (17-007027)

The claimant sought entitlement to attendant care benefits beyond the termination date despite no amounts being incurred. The claimant asked that the LAT deem the expenses incurred. Adjudicator Mazerolle concluded that he could not deem the expenses incurred. He held that the insurer’s termination of attendant care benefits was not unreasonable and that the IE report that supported the termination was based on appropriate factors. Further, the claimant had not promised to pay for any attendant care services beyond the date of termination.

S.K. v. Aviva Insurance Company (17-006866)

The claimant sought payment of attendant care benefits. The insurer did not dispute that services were reasonable and necessary, but argued that the claimant had not incurred such expenses. The claimant refused to provide answers to questions regarding the services during an examination under oath, and the invoices proving receipt of the services was vague and submitted well after services were allegedly incurred. Adjudicator Mather concluded that the claimant had received the services from a PSW, based on affidavits from the claimant and the PSW. She also concluded that the claimant was legally obligated to pay for the attendant care services. However, Adjudicator Mather decreases the total benefit payable based on the hourly rate in the Guidelines.

R.K. v. Aviva Insurance Company (17-006651)

The claimant sought payment of attendant care benefits. The insurer did not dispute that services were reasonable and necessary, but argued that the claimant had not incurred such expenses. The claimant refused to provide answers to questions regarding the services during an examination under oath, and the invoices proving receipt of the services was vague and submitted well after services were allegedly incurred. Adjudicator Mather concluded that the claimant had received the services from a PSW, based on affidavits from the claimant and the PSW. She also concluded that the claimant was legally obligated to pay for the attendant care services. However, Adjudicator Mather decreases the total benefit payable based on the hourly rate in the Guidelines.

L.Y.T. v. RBC Insurance Company (17-007019)

The claimant sought entitlement to attendant care benefits and a special award. The claimant claimed that her son resigned from his employment to provide her with attendant care. Adjudicator Sewrattan found that the claimant was not entitled to payment for attendant care as she had not proven that she received attendant care services from her son. Adjudicator Sewrattan found that a letter stating the son quit work to take care of his mother after the accident was not sufficient to prove the claimed benefits were payable as the letter did not prove that the son provided the type of services requested in the claimant’s Form 1. It was not enough that there was evidence the son assisted the claimant in some way after the accident. Adjudicator Sewrattan found that the son’s banking evidence was not credible.

Applicant v. Coachman Insurance Company (16-003306)

The claimant sought entitlement to removal from the MIG, IRBs, ACBs, medical benefits, and special award. He argued that he sustained a fractured sternum, a concussion, and major depressive disorder as a result of the accident. Despite an IE assessor concluding that the fractured sternum was related to the accident, the insurer concluded otherwise based on the related CT scan being performed a month after the accident in a foreign country. Adjudicator Gosio concluded that the claimant did suffer a fractured sternum, a concussion, and psychological impairments from the accident. He removed the claimant from the MIG and awarded some of the claimed medical benefits. He awarded IRBs based on the claimant being unable to perform his employment as a realtor primarily due to psychological issues. Surveillance of the claimant being physically functional did not persuade Adjudicator Gosio that the claimant was untruthful or that he was able to return to his employment. Adjudicator Gosio also awarded fifteen months of ACBs and held that the insurer had unreasonably withheld payment. Services were deemed incurred in accordance with section 3(8). Finally, Adjudicator Gosio issued a special award against the insurer in relation to ACBs due to the manner in which it denied ACBs and mislead the claimant on the IE physician’s opinion.

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