LAT Positive Applicant Decision

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Written By: Dale Orlando and Nicole Kiselyov, Summer Student

Recently, there have been positive applicant decisions that deserve the spotlight. The recent License Appeal Tribunal (LAT) decisions are the following:

  1. Attendant Care awarded when the applicant is working in an intellectually challenging vocation (as a lawyer)
  2. Enforcing a summons to an adjuster (in person) for examination on a special award
  3. The argument that LAT has no jurisdiction to argue quantum of Attendant Care if the Applicant is not incurring the already approved benefit does not stand.
  4. The cost of catastrophic assessments is payable by the insurer and does not count against the med/rehab limit

1. Returning to work does not negate Attendant Care Benefits

J.W v. Security National, 2020

The Applicant was deemed catastrophically impaired following a motor vehicle incident that occurred on October 20, 2014. He received Attendant Care Benefits (ACBs) until May 2016. The Respondent requested an updated Form 1 and determined that the Applicant was no longer entitled to an attendant care benefit.

The Applicant applied to the Tribunal to seek ongoing ACBs in the amount of $803.99 per month from the date of the accident to date.

The Applicant submitted that he required evening meal preparation due to fatigue, along with cues and reminders due to forgetfulness, stemming from the traumatic brain injury caused by the accident. The Tribunal found that the Applicant is entitled to up to $803.99 per month in ongoing ACBs but is not entitled to payment for any expenses to date [1].

The Applicant was a practicing litigation lawyer at the time of the accident. Fortunately, he was able to return to work.

The Tribunal found that the Applicant’s medical evidence outweighed that of the Respondent. Although the Appellant was able to return to work, the Appellant continued to experience fatigue, cognitive, and irritability challenges that required ACBs. As a result, the amount of 803.99 was found to be reasonable.

It is important that a person is considered holistically. When assessing attendant care, everything should be considered, such as the impairment of cognitive abilities in this case. The ability to return back to work does not necessarily mean other abilities are not depleted and do not require attendant care [3].

[1] J.W v. Security National, 2020 CanLII 30385 (ON LAT), 18-008988/AABS at para 3.

[2] Ibid at para 11.

[3] https://oatleyvigmond.com/latupdate/return-to-work-does-not-negate-attendant-care-benefit/

2. Adjuster is summoned for examination on a special award 

Rufai v. Unifund, 2020, 18-012427/AABS

The Appellant was injured in a motor vehicle collision and claimed accident benefits from Unifund. Unifund denied certain benefits, leading the applicant to file an Application with the LAT. Subsequently, a hearing was scheduled.

Prior to the hearing, a Notice of Motion was filed by the Respondent seeking to:

  1. Quashing a summons served on the Adjuster;
  2. Changing the format of the LAT hearing from in-person to in writing.

Unifund tried to quash the summons stating it was an abuse of process. They argued that the adjuster had no relevant evidence to provide to the proceeding as the only issue in contention is whether the applicant had an explanation for failing to attend the Insurer Examination.

The tribunal held that “…the applicant is entitled to summons a witness once it has provided the Tribunal with a brief description of the anticipated evidence”, which is a low bar and witnesses are generally added if a party can satisfy this low threshold. The tribunal noted that the issues in dispute were framed as income replacement benefits, interest, and an award pursuant to Ontario Regulation 664. The tribunal did not vacate the summons given the issues in dispute and directed the adjuster to attend for the purposes of cross-examination as he will have unique knowledge of the matter. [4]

The format of the LAT hearing is usually held in person, but due to Covid-19, Unifund argued that the hearing should be held in writing. Nevertheless, the applicant submitted that the parties had already agreed to an order for an in-person hearing.

Essentially, the Respondent was looking to appeal the order, skipping the appropriate steps. Nevertheless, this request was denied by the tribunal. The adjuster was to attend and be examined on the claim of Special Award and the hearing was to proceed in person.

[4] https://otlablog.com/rufai-v-unifund-2020-18-012427-aabs/

Other similar outcomes concerning an Adjuster and Special Awards

  • 17-00630 v Aviva, 2018, 17-006302/AABS

The Tribunal issued a summons for the examination of the handling Adjuster at the request by the Applicant. The evidence expected from her was central to the matter.

  • 17-003121 v Allstate, 2017, 17-003121/AABS

The Applicant in this case filed a Notice of Motion following the case conference requesting to replace a witness with another, add a witness, and issue a summons on the accident benefits adjuster of the Respondent. The Tribunal allowed this. The Tribunal decided it would be “unfair” to withhold evidence that could come from the adjuster, from the Applicant, since they are pursuing Special Awards.

3. The LAT has jurisdiction to determine quantum of Attendant Care despite the applicant not incurring the benefit already approved

T.N v. TD, 2020

The Applicant applied for attendant care benefits under the Schedule, asking for $3,790 a month in accordance with the Assessment for Attendant Care needs, Form 1. Subsequently, the Respondent requested an IE examination and partially approved the Form 1 amount, for $2,331 a month. The Applicant filed an application for dispute resolution with the Tribunal.

The respondent’s position was that the Tribunal did not have jurisdiction to hear the dispute since is, since there are no issues in dispute the Applicant was not incurred more than the amount approved. The respondent relied on J.R and Primmum Insurance Company and the amended reconsideration decision of E.V. v. TD Insurance Meloche Monnex. [5]

“T.N. submits that by partially approving the amount of ACBs requested in his Form 1, the respondent is essentially saying that it is only prepared to pay this amount. Any benefits incurred above that amount, it does not agree to pay for. It is on that very basis that a dispute is established. […] T.N. submits that this argument goes against consumer protectionism legislation and the Tribunal has jurisdiction to hear a dispute regarding the quantum of the Form 1 regardless of whether it was incurred. He submits his arguments are supported by J.M. and Wawanesa Mutual Insurance Company and B.D. and Wawanesa Mutual Insurance Company where entitlement to ACBs was disputed without incurring the full amount”.[6]

The tribunal reviews Section 280, Section 19(1) and (2) of the Insurance Act and Section 42 of the Schedule to come to their decision.

The Schedule is clear that requesting payment for the benefit is different than the quantum of the benefit, therefore whether or not they have been incurred have no relevance here.

Is there a dispute? If so, does the Tribunal Have authority to hear it?

The tribunal concludes there is a dispute between the parties.

“The respondent does not agree to pay for any amounts incurred over its Form 1. Whether the benefit is incurred or not, is not a requirement for disputing the amount of the benefit to which an insured may be entitled to. I differentiate the decisions the respondent is relying on from this case because in those decisions the insurer agreed to fund the issues in dispute in full. In this case, the respondent is only agreeing to pay the benefits up to the amount listed on its Form 1. On that basis, there is a dispute and the Tribunal has jurisdiction to hear the claim. The preliminary issue is dismissed” [7].

The Tribunal ordered $2,997 per month for Attendant Care.

[5] T.N. vs. TD Insurance Company, 2020 ONLAT19-005638/AABS at para 8.

[6] Ibid para 9.

 [7] Ibid para 17.

4. The cost of catastrophic assessments is payable by the insurer and does not count against the med/rehab limit

17-007962 v Scottish & York

The Applicant was injured in a motor vehicle accident on October 16, 2014, and sought benefits pursuant to Statutory Accident Benefits Schedule (SABS).

Prior to the case conference, the parties asked the Tribunal to address the preliminary issue of whether or not assessments done to determine catastrophic impairment ( “CAT assessments”) are included as part of the $50,000  limit (Section 18(3), unless they are CAT then their limit becomes $1,000,00 ) for medical rehabilitation benefits.

It was concluded that they should not go towards the $50,000 limit prescribed by the Schedule.

  • Section 18(5) of the SABS, the exclusion clause should be interpreted narrowly while the coverage clauses should be interpreted broadly. [8]
  • The Adjudicator, in this case, stated, “I agree with the reasoning in Henderson (Henderson v. Wawanesa Mutual Insurance Company) that “there is no room for ambiguity – the insurer shall pay the expenses of a CAT assessment” [9]
  • CAT determinations are not a benefit. Assessments required to apply for CAT determination are also, not a benefit. Therefore, it is reasonable that they should be excluded from the limit placed on payment for benefits.

The Tribunal held that the $18,534.00 for CAT assessment cannot be deducted from the $50,000 limit set by s.18 of the Schedule. They are payable under s.25 of the Schedule.

[8] N.S. v. Scottish & York, 2019 CanLII 119803 (ON LAT) at para 15.

[9] Ibid.

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