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Issues:

TN was catastrophically injured in a motor vehicle accident on October 29, 2000, when she was 21 years old. She applied for and received certain statutory accident benefits from Personal Insurance Company of Canada, payable under the Schedule.  Personal denied TN's claim for various other benefits. The parties were unable to resolve their disputes through mediation, and TN applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

TN requested that her identity be anonymized in this decision. The Insurer consented to this request. Given the highly sensitive nature of the personal, family and medical information in this case, the Arbitrator found TN's request to be reasonable.

The issues in this hearing are:

  1. Is TN precluded from receiving income replacement benefits on the basis that she failed to apply for mediation and arbitration within two years of Personal's refusal to pay those benefits, pursuant to section 51(1) of the Schedule?
  2. Was TN employed or self-employed at the time of the accident?
  3. If TN was self-employed, is the rent of the family-owned barn to be added as losses from self-employment, pursuant to sections 6(5) and 6(6) of the Schedule?
  4. Did TN fail to submit an application for attendant care benefits to Personal within 30 days after receiving the application forms, contrary to section 32(3) of the Schedule, and, if so, what are the consequences of that failure?
  5. Did TN fail to submit an application for housekeeping benefits to Personal within 30 days after receiving the application forms, contrary to section 32(3) of the Schedule, and, if so, what are the consequences of that failure?
  6. If the answer to Issue 4 is "no", is TN entitled to attendant care benefits, from the date of the accident and ongoing, at the rate of $5,904.76 per month, pursuant to section 16(2) of the Schedule?
  7. If the answer to Issue 5 is "no", is TN entitled to housekeeping benefits from October 29, 2000 and ongoing, at a rate of $100 per week, pursuant to section 22(1) of the Schedule?
  8. Is TN entitled to nutritional counselling services, in the amount of $720, pursuant to sections 14(2)(h) and/or 15(5)(l) of the Schedule?
  9. Is TN entitled to medical and/or rehabilitation benefits for the purchase of medical marijuana, from December 14, 2005 and ongoing, at the rate of $1,200 per month, pursuant to sections 14(2)(h) and/or 15(5)(l) of the Schedule?
  10. Is Personal liable to pay TN a special award on the basis that it unreasonably withheld or delayed payments, pursuant to section 282(10) of the Insurance Act?
  11. Is TN entitled to interest on overdue benefits, pursuant to section 46 of the Schedule?
    Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

  1. TN is not precluded from receiving income replacement benefits.
  2. TN was employed at the time of the accident.
  3. Given that TN was employed at the time of the accident, it is unnecessary to determine Issue 3.
  4. TN did not fail to submit an application for attendant care benefits as required, and is entitled to arbitrate her entitlement to those benefits.
  5. TN did not fail to submit an application for housekeeping benefits as required, and is entitled to arbitrate her entitlement to those benefits.
  6. TN is entitled to attendant care benefits from October 29, 2000 and ongoing, at the rate of $5,056.80 per month, less any amounts already paid by the Insurer.
  7. TN is entitled to two hours of housekeeping services per week, from May 1, 2008 and ongoing.
  8. TN is entitled to nutritional counselling services, in the amount of $720.
  9. TN is entitled to medical benefits for the purchase of medical marijuana, from March 27, 2007 and ongoing, at the rate of $567.60 per month.
  10. At the request of the parties, the issue of a special award will be addressed at a resumption of the hearing, if required.
  11. At the request of the parties, the issue of interest will be addressed at a resumption of the hearing, if required.
  12. The issue of expenses will be addressed at a resumption of the hearing, if required.

You can read the full decision on my personal injury blog.

 

Posted on Thursday, Jan 03, 2013 - 10:50:00 AM EST
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