Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.

Laljee v. Aviva General Insurance Company (2024 ONSC 2577)

The claimant appealed the Tribunal’s dismissal of her claim for a catastrophic impairment designation and various treatment plans. The Court dismissed the appeal, finding that there was no merit to the claimant’s arguments. The claimant had not been denied procedural fairness, and had been provided with all documentation referred to during the hearing. The Tribunal’s findings of fact were based on the ample evidence before it, as was the conclusion that the claimant’s impairments were largely a result of pre-existing conditions.

Joaquim v. Intact Insurance Company (2023 ONSC 5120)

The claimant appealed the Tribunal’s decision that she was failed to attend an IE in relation to a claimed prescription expense. The claimant argued that the SABS does not permit an IE in relation to prescriptions. The Divisional Court granted the appeal, holding that only items required to be submitted on a treatment plan could be referred to IE. Items permitted to be submitted by way of OCF-6 could not be assessed at an IE. The Court also held that the $250 threshold referred to in section 38(2) did not apply to prescription. Rather, it only applied to “goods with a cost of $250 or less per item.” The Court wrote that the adjudicator ought to have followed the FSCO decision in Ward v. State Farm, which was persuasive authority for the claimant’s position.

Hutchinson v. Aviva General Insurance Company (2023 ONSC 1472)

The claimant appealed the Tribunal’s decision that she was not entitled to various medical benefits. The claimant argued that the Tribunal’s refusal to convert the videoconference hearing to a written hearing was a breach of procedural fairness and natural justice. The claimant’s counsel had argued that the claimant was unable to participate in the hearing due to psychological injuries, but provided no evidence in support of the motion. The Tribunal rejected the motion and the matter proceeded by videoconference, and the claimant called no evidence. The Court rejected the appeal, holding that the Tribunal’s processes were fair and the decision to proceed with the videoconference was not a breach of procedural fairness or natural justice. The claimant was given the opportunity to make submissions on the motion and the Tribunal provided written reasons for its decision. The Court also rejected the argument that the adjudicator was biased.

Chu v. Unica Insurance Inc. (20-001934)

The claimant applied to the LAT for a catastrophic impairment designation under Criteria 8. She had already exhausted her $65,000 non-CAT policy limit. The claimant bore the onus of proving on a balance of probabilities that she had a “Marked” or Class 4 impairment in at least three of the four domains set out in the AMA Guides. Adjudicator Forbes noted that a “Marked” impairment sufficient for a CAT designation requires the claimant to show that their impairments “significantly impede useful functioning.” In conducting this analysis, Adjudicator Forbes emphasized that it was crucial that the claimant’s pre- and post-accident functions be accounted for based on the available medical and documentary evidence. Adjudicator Forbes found that the medical and documentary evidence showed that the claimant had pre-existing limitations on her daily life before the accident, which were not significantly impeded by the accident, and that the claimant’s post-accident condition showed signs of improvement. Adjudicator Forbes held that the presence of “some” post-accident limitations on a claimant’s useful functioning does not rise to the high bar of significantly impeded useful functioning. As a result, the claimant was not deemed CAT and no further medical/rehabilitation benefits were payable.

Wicks v Intact Insurance Company (20-011457)

The claimant disputed entitlement to vocational/academic training services, a mattress, a massage chair, and a Stairmaster. The Tribunal found that the claimant did not meet the burden of proving that the disputed benefits were reasonable and necessary. Despite recommendations from occupational therapists and physicians, there was a lack of supporting medical evidence to justify the proposed treatment plans. The appeal was dismissed.

Vaillancourt v. The Guarantee Company of North America (21-008125)

The claimant was previously deemed catastrophically impaired. He applied to the LAT to resolve a dispute concerning the quantum of certain benefits, including attendant care and home modifications. Prior to the accident, the claimant managed his own consulting company, was quite active, and regularly enjoyed doing housework. The insurer denied much of the claimant’s attendant care claim on the basis that the surveillance it collected and the assessments it conducted revealed that the claimant could perform such tasks without supervision and that his post-accident impairments were overstated. Adjudicator Lundy disagreed, preferring the claimant’s framework which focused on the claimant’s functional ability to perform predictably, consistently and reliably. Adjudicator Lundy emphasized that the insurer failed to account for these principles by concluding that the snippets of surveillance it collected showing the claimant performing housework and manual labour indicated that his condition was overstated, when, in reality, the surveillance and assessments undertaken by the insurer failed to account for the fact that the claimant struggled to perform these tasks and that his condition differed on a day-to-day basis. As a result, Adjudicator Lundy found that the claimant was entitled to attendant care benefits in the amount of $6,000.00 per month. The insurer denied the claimant’s proposed home modifications on the basis that his medical/rehabilitation funds were nearly exhausted. Despite eventually designating the claimant CAT, the insurer stood firm in its denial of the proposed home modifications. Adjudicator Lundy found that the claimant fulfilled his evidentiary burden of demonstrating that the home modification assessment and all but two of the proposed home modifications (valued at $87,809.00) fit the criteria of being necessary and reasonable. Despite the insurer’s refusal to pay for the proposed attendant care and home modifications, Adjudicator Lundy found that the claimant was not entitled to a special award. The insurer had triable concerns regarding whether many of the claimant’s proposed plans were necessary and agreed that the claimant was eligible for attendant care and some home modifications, albeit not to the valuations sought by the claimant.

Gibson v. Intact Insurance Company (20-012060)

The claimant applied to the LAT for the approval of multiple treatment plans, including a treatment plan for a tractor. The insurer brought a motion to bar the claimant from disputing the entitlement to the tractor for failing to attend s. 44 IEs. The LAT added the claimant’s non-attendance at the IEs as a preliminary issue. The claimant attended the first three of the five IEs scheduled by the insurer but, despite having received notices of examination, failed to appear to the final two IEs. The claimant submitted that the additional two IEs were duplicative and unnecessary, that the delay between the first three IEs and the final two IEs was questionable, and alleged that the insurer scheduled the final two IEs as a means of “expert shopping”. The insurer contended that the two scheduled IEs qualified as reasonably necessary, the nexus between the IEs and the claimant’s injuries was made out, and that the claimant had not yet undergone neurology and orthopaedic assessments. Adjudicator Pahuta found that that there was a nexus between the claimant’s physical impairments and the two IEs and that the conclusions of the previous IEs favoured the scheduling of the two IEs. Adjudicator Pahuta further stated that the claimant’s own assessments did not negate the need for the insurer’s two IEs and that there was nothing questionable about the timing of the IEs. Adjudicator Pahuta held that the insurer’s two proposed IEs were reasonably necessary, and the claimant’s failure to attend was fatal to his ability to proceed with the dispute concerning the treatment plan for the tractor.

Aized v. The Co-operators (20-012300)

The claimant applied to the LAT for post-104 week IRBs and medical benefits, including physiotherapy services and an attendant care assessment. Prior to the accident, the claimant was employed as a student placement coordinator, which required concentration, critical thinking skills and sitting in front of a computer screen for prolonged periods of time. Despite returning to work with reduced hours and the ability to work remotely, the claimant argued that she was unable to perform the essential responsibilities of her job and that working full-time exacerbated her pain. The insurer argued that the claimant was substantially able to perform the tasks of her pre-accident employment with modified duties and, therefore, she did not suffer from a complete inability to engage in any employment for which she was reasonably suited. Having regard to the deterioration in the claimant’s psychological condition and the pain caused by the accident, Vice-Chair Logan found that, although the claimant was substantially unable to perform the essential tasks of her pre-accident employment, she was still capable of engaging in alternative employment for which she was reasonably suited. Vice-Chair Logan held that a claimant’s ability to perform “some, albeit not all” of the responsibilities of their pre-accident employment strongly indicates that they are able to continue to engage in their pre-accident employment and in alternate forms of employment that they may be reasonably equipped for. As a result, the claimant was only entitled to pre-104 week IRBs. Vice-Chair Logan concluded that the claimant had no objective quantifiable physical impairments from the accident and refrained from seeking out physiotherapy earlier upon being advised by her physician. In addition, Vice-Chair Logan held that an attendant care assessment was not reasonable or necessary given that the claimant did not suffer from any residual physical impairments and could not draw upon her treatment plan as evidence that attests to the need for an attendant care assessment. As a result, the claimant was not entitled to medical benefits.

Kokulanthan v. TD General Insurance Company (20-011886)

The insurer raised a preliminary issue, arguing that the claimant’s entitlement to medical benefits and IRBs was barred for non-attendance at s. 44 examinations. Adjudicator Tavlin Kaur found that the insurer’s notices of examination in relation to IRBs did not comply with the SABS as they did not refer at all to the claimant’s medical conditions or the SABS provisions on which the insurer relied. The claimant was permitted to continue to a hearing for her IRB claim. Adjudicator Kaur found that the insurer’s notice with respect to medical benefits was satisfactory as it referenced the MIG, medical and rehabilitation benefits, and the claimant’s medical condition. The claimant’s claims relating to medical and rehabilitation benefits were barred from proceeding to a hearing. Adjudicator Kaur declined to exercise her discretion to allow the claimant to continue with these issues as she had not provided reasons for her non-attendance at the insurer examinations, nor had she made any written submissions at the preliminary issue hearing.