Category: Incurred Expense

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.

M.C. v. Aviva Insurance Company of Canada (17-002614)

The claimant sought entitlement to treatment outside of the MIG, attendant care benefits, six treatment plans, and a special award. Adjudicator Truong found that the claimant was entitled to treatment outside of the MIG, the cost of an attendant care assessment and assistive devices, interest, and a special award. Adjudicator Truong found that the claimant was not entitled to attendant care or the cost of the remaining treatment plans. She noted that the claimant had not incurred any attendant care services following the accident. Adjudicator Truong held that the MIG did not apply to the applicant’s impairments pursuant to section 38(11) because the insurer had failed to respond within 10 days. Adjudicator Truong found that the attendant care assessment was payable for the same reason. The treatment plan had been denied on HCAI, but no denial letter was sent by the insurer. Adjudicator Truong also held that the applicant was entitled to the special award largely due to the insurer’s continued denial of the cost of the attendant care assessment despite its failure to provide a denial letter. Adjudicator Truong stated that once the insurer became aware it had breached section 38(8) with respect to providing notice, it should have immediately provided notice and/or paid the benefit.

V.K. v. Allstate Insurance Company (16-004273)

The claimant sought entitlement to attendant care benefits and medical benefits for vision-related expenses and transportation expenses. Adjudicator Truong held that the claimant was not entitled to any of the benefits or expenses at issue. The claimant’s mother provided her with attendant care; however on the limited and unreliable evidence before the adjudicator, the claimant did not meet her onus of proving that the mother sustained economic loss. Therefore, the claim for attendant care benefits did not meet the definition of “incurred” under to the SABS. The claims for prescription eyewear and an eye exam were not reasonable and necessary, and the transportation expenses submitted were not authorized transportation expenses within the meaning of the FSCO Superintendent’s Guideline No. 04/16. The claimant was not entitled to laser eye treatment expenses because no treatment plan was submitted.

I.A. v. Allstate Insurance (17-006850)

The claimant sought entitlement to attendant care benefits as well as the benefits proposed in four treatment plans. Adjudicator Watt found that none of the benefits in dispute were reasonable and necessary as a result of the accident. Adjudicator Watt further noted that the claimant had not submitted a Form 1 or attendant care assessment in support of entitlement to attendant care benefits. The application was dismissed.

Applicant v. Aviva Insurance Canada (17-002957)

The claimant sought entitlement to treatment outside of the MIG, attendant care benefits, medical benefits, the costs of three examinations, and a special award. After a review of the medical evidence, Adjudicator Anwar preferred the reports of the claimant’s specialists and held that the claimant’s injuries warranted treatment outside of the MIG. Adjudicator Anwar further concluded that the claimant was entitled to the medical benefits sought, as they were reasonable and necessary, but that attendant care benefits were not warranted nor were any expenses incurred.  Moreover, Adjudicator Anwar held that the insurer did not unreasonably withhold payments from the claimant to necessitate a special award.

W.E. v. Wawanesa Mutual Insurance Company (17-002054)

The claimant sought entitlement to housekeeping expenses, and the cost of obtaining her employment file for the insurer. Adjudicator Gosio held that the claimant had proven that she suffered a substantial inability to perform the housekeeping services she normally performed prior to the accident, but that she did not prove that the expenses were incurred. The claimant’s only evidence regarding the economic loss of her sister (the service provider) was a statement in the claimant’s affidavit that the sister took a leave of absence from her employment. The adjudicator also held that the expenses could not be deemed incurred because the insurer had provided the claimant with an explanation of benefits earlier in the claim. The insurer was not required to explain the intricacies of the “incurred expense” definition. Finally, Adjudicator Gosio held that the Tribunal could not order the insurer to pay costs to the claimant for her employment records because the insurer had not acted unreasonably or vexatiously.

Applicant v. Echelon General Insurance Company (16-003153)

The claimant suffered a catastrophic impairment and sought attendant care and housekeeping benefits. The insurer took the position that the claimant was required to show proof of an incurred expense for each benefits pursuant to the 2010 SABS. The claimant argued that since the MVA took place before the 2010 SABS came into force, the requirements, or lack thereof, in the 1996 SABS applied. On review of the various legislative amendments and regulations, Adjudicator Deborah Neilson concluded the 1996 SABS applied to the claimant’s MVA.

Applicant v. Unifund Assurance Company (16-003709)

The claimant sought entitlement to IRBs and ACBs. The insurer sought repayment of IRBs paid for a period that the claimant was working. Adjudicator Bickley denied entitlement to both IRBs and ACBs. She held that the claimant’s return to work shortly after the accident and frequency gym attendances suggested that the claimant did not suffer a substantial inability to engage in her employment, and that she did not require assistance with personal care. Adjudicator Bickley also held that the claimed attendant care expenses were not incurred because the claimant’s daughter had not submitted any evidence of an economic loss. In terms of the claim for repayment, Adjudicator Bickley allowed the repayment issue to be added as an issue at the beginning of the hearing. The claimant’s representative acknowledged an overpayment for the period which the claimant had returned to work after the accident. The claimant was ordered to repay $2,984.59 in IRBs plus interest.

J.A. v. Aviva Insurance (17-001494)

The claimant sought entitlement to IRBs and attendant care benefits. Adjudicator Hamud concluded that the claimant was entitled to IRBs, as he suffered a substantial inability to perform the essential tasks of his employment. An essential task of the claimant’s employment as a construction worker required him to lift over 50 pounds, but the claimant was only able to lift 10 pounds. The claimant was also entitled to attendant care benefits, but in the amount indicated on the Form 1 rather than on the invoices submitted. The invoices were based on rates which exceeded the maximum rates noted in the Guideline, and were thus inappropriate.

N.N. v. Certas Direct Insurance Company (17-001002)

The claimant sought entitlement to attendant care benefits and two treatment plans. Adjudicator Billeh Hamud reviewed the medical evidence and determined that the claimant was independent with his day to day activities and was functional to the point that attendant care benefits were not reasonable and necessary. In the alternative, Adjudicator Hamud also determined that the claimant did not satisfy that his wife, and reported service provider, suffered an economic loss. Moreover, the claimant failed to provide sufficient evidence to justify payment of the two treatment plans. All of the claimant’s claims were dismissed.