Category: Incurred Expense

Y.D. v. Aviva Insurance Canada (16-001810)

The Tribunal ruled against the claimant’s application for further attendant care benefits on the basis that no expenses had been incurred, and that the Tribunal did not have equitable jurisdiction to order the ongoing payment of attendant care benefits based solely upon earlier payments of the benefit. Executive Chair Lamoureux upheld the earlier decision and noted that even if the Tribunal did have equitable jurisdiction to decide the matter, the pre-requisites for estoppel to apply were not present in this case.

N.R. v. Pembridge Insurance Company (16-003776)

The claimant sought entitlement to NEBs, ACBs, and medical benefits. Adjudicator Hans rejected all of the claims. In terms of NEBs, the adjudicator wrote that the claimant failed to provide evidence of his pre-accident activities and that without such information, entitlement to NEBs could not be proven. In terms of ACBs, the adjudicator wrote that the claimant’s expense forms did not prove that the attendant care services were incurred. In particular, the adjudicator was critical of the lack of specificity or details as to the days or services provided, and the fact that the expense forms were completed months after the services were allegedly provided. Finally, the medical benefits for dental work were denied because the claimant had not proven that he sustained a dental injury in the accident.

J.C.C. v. Echelon General Insurance Company (17-000848)

The claimant was found entitled to attendant care benefits from a medical standpoint, but was denied payment on the basis that his service provider was not a professional. The service provider had her certification as a PSW, but was not working in the field at the time of the claimant’s accident. Adjudicator Go held that the service provider qualified as a professional, noting that there was no requirement that a professional be working in the field at the time of the accident, or that the professional be working exclusively in the field. She also noted that the service provider continued to work as a PSW with other patients after treating the claimant, which supported the conclusion that the service provider was acting in the course of her employment or occupation.

A.P. v. Coseco Insurance Company (16-004363)

The catastrophically-impaired claimant sought payment of attendant care benefits based on service provided by his mother. The mother had training as a PSW but was not employed at the time of the accident. The dispute concerned whether the mother qualified as a professional service provider under the “incurred expense” definition. Adjudicator Truong concluded that the claimant’s mother was a professional service provider. Although she was not working at the time of the accident, the adjudicator accepted that the mother was seeking employment as a PSW around the time of the accident (and did, in fact, obtain employment as a PSW). Adjudicator Truong noted that the SABS did not require a professional to be actively employed in their occupation or profession at the time of the accident, and that training, professional licencing, the regulatory process, and actively seeking employment were part of being “ordinarily engaged in” a profession.

A.H. v. Belair Direct Insurance Company (16-001063)

The claimant sought entitlement to a number of treatment plans and attendant care benefits. Adjudicator Lori Marzinotto noted that some of the treatment plans sought were not submitted as evidence, nor specifically addressed in the claimant’s submissions; those plans were denied. Other treatment plans sought mileage beyond the Professional Service Guidelines. Adjudicator Marzinotto highlighted no evidence was tendered to support exceeding the PSG; those previously partially approved plans were accordingly maintained. With respect to attendant care benefits, Adjudicator Marzinotto noted no evidence was provided to satisfy economic loss for much of the period claimed; therefore attendant care benefits were not payable for that time. However, the claimant was entitled to attendant care benefits from February 2016 onwards, as the evidence supported it was reasonable and necessary, and incurred, but that the rate charged by the service provider was in excess of the FSCO Guidelines.

B.H. v. Belair Direct Insurance (16-002779)

Shortly before the hearing, the insurer accepted that the claimant suffered a catastrophic impairment, and was entitled to IRBs. The only remaining issues were the claimant’s entitlement to attendant care benefits, and a special award. In terms of the attendant care claim, the insurer accepted that the claimant was medically entitled to assistance; the dispute was whether the service provider was a professional under the “incurred” definition. The service provider was not working as a PSW at the time of the accident, but had started working after the claimant’s accident, and had worked for three weeks providing services to other individuals. Adjudicators Treksler and Hines held that the wording “but for the accident” in the “incurred” definition did not require the professional service provider to have been working as a professional at the time of the accident. Instead the wording “but for the accident” required an inquiry as to whether the professional service provider was working in that role prior to the date of the provision of services. The professional service provider had worked for three week with other individual prior to working with the claimant, and the adjudicators therefore concluded that the “incurred” definition for a professional service provider was satisfied. The adjudicator also issued a special award of $3,693.60 in relation to IRBs, on the basis that the insurer had requested too much information and refused to pay IRBs despite sufficient information to calculate the claimant’s weekly entitlement.

K.S. v. The Dominion of Canada General Insurance Company (16-002099)

The claimant sought entitlement to attendant care benefits and multiple treatment plans. A preliminary issue was whether late submitted medical records should be excluded from the hearing. Regarding the late records, Adjudicator Treksler admitted the records reasoning that third parties had control over the records and that the claimant could not control the date of disclosure. She also reasoned that the insurer had not suffered any prejudice. In terms of the attendant care benefits, Adjudicator Treksler awarded four months of attendant care benefits and held that the use of a professional service provider met the incurred requirements in the SABS. No attendant care benefits were awarded beyond the date the claimant was observed to be fully functional on surveillance. Five of the 12 claimed treatment plans were awarded.

K.R. v. TD Insurance Company (16-004073)

The claimant sought attendant care benefits up to the 104 week mark. Adjudicator Treksler found that the claimant suffered injuries that entitled her to attendant care of $873.30 per month. The second issue was whether the claimant’s attendant care expenses were incurred. For a period of five months, the claimant used a professional service provider and those expenses were awarded. For a further period of 13 months, Adjudicator Treksler found that the claimant’s expenses were deemed incurred under section 3(8) of the SABS because the insurer had unreasonably withheld or delayed payment. She was critical of the insurer ceasing payment of attendant care benefits on its basis of its Form 1 alone without considering the records of the claimant’s treatment providers. Finally, Adjudicator Treksler held that no attendant care benefits were payable before the claimant’s Form 1 was submitted.

M.R. v. Aviva Insurance Company of Canada (16-00216)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to attendant care benefits. As a preliminary issue, the respondents sought to exclude the supplementary report of Dr. El-Hage, psychologist, and the sworn affidavit of the occupational therapist. Adjudicator Nemet granted the motion, as the material was written less than 30 days before the hearing and was clearly generated to address evidentiary deficiencies in the claimant’s case as set out in the respondent’s submissions. Further, the respondent would not have the chance to cross-examine the expert, as neither were being called by the claimant. The adjudicator found that the claimant’s psychological injuries fell outside of the MIG. The claimant’s evidence was that she required 45 hours per week of attendant care assistance, and that these services were provided by various family members. The adjudicator found that there was no reliable evidence by way of invoices, logs or any other corrobative evidence to what services, when, by whom and for how long were provided. He was not satisfied that the claimant had “incurred” the expenses as required by section 3(7)(e), noting that the evidence was consistent with the notion that the family members volunteered to help and that discussion about payment did not occur until much later. The adjudicator concluded that the claimant was not entitled to attendant care benefits, and dismissed the application.

Y.D. v. Aviva Insurance (16-001810)

The claimant sought entitlement to attendant care benefits provided by her husband (a fertility physician) and the cost of an in-home assessment. The insurer denied that the claimant had “incurred” any attendant care services and further denied that any attendant care services were reasonable and necessary beyond June 2016. The claimant responded that the insurer was estopped from denying payment of attendant care benefits because it had already accepted that services had been “incurred” in earlier months by services provided by her husband. Adjudicator Paluch considered all three elements of the “incurred” definition and concluded that none of the requirements had been met. First, he held that claimant had not proven on a balance of probabilities that her husband had provided the services claimed, and that the expense forms were not an accurate reflection of services that were actually provided. Second, he held that the claimant did not have any legal obligation to pay her husband for any services he may have provided. Third, he held that the claimant’s husband was not a professional service provider (his regular employment did not concern any tasks that were contained in a Form 1), and that the service provider had not proven that an economic loss had been sustained by providing services to the claimant. In particular, Adjudicator Paluch was critical of the service provider not providing any records of lost income or time from work, and instead simply providing oral testimony. Finally, Adjudicator Paluch concluded that the LAT did not have jurisdiction to administer the rules of equity, as it could only grant remedies set out in its enabling statute. Adjudicator Baluch denied the claim for attendant care benefits and the in-home assessment cost.