Category: Incurred Expense

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.

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.

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.

Applicant v. Aviva Insurance Canada (17-006480)

The claimant sought entitlement to an OCF-18 proposing psychological treatment. Adjudicator Boyce found the proposed psychological treatment to be reasonable and necessary because he found the the claimant’s self-reporting of cycling-specific fear to be consistent and compelling, and he preferred the s. 25 psychology report to the s. 44 psychology report. Adjudicator Boyce rejected the interpretation of incurred expenses in F.S v. Aviva Insurance Canada, holding that there is no indication in s. 3(7)(e)(i) or (ii) of the SABS that costs must be incurred at the time of the LAT application for a treatment plan to be found payable.

Helmer v. Belair Direct Insurance Company (2018 ONSC 2888)

The insurer sought judicial review of the Tribunal’s decision that a PSW who was not working before the accident, met the requirements of the professional service provider branch of the “incurred expense” definition. The Court held that the Tribunal’s decision was both reasonable and correct. The Court held that the critical question was whether the PSW was legitimately in the business of rending services, rather than when the PSW first looked to provide services. The SABS prohibits the creation of a business solely for the purpose of satisfying the professional service provider definition. It is the legitimacy of the service that the SABS is concerned with, not the date on which the service provider became qualified or established a business.