Accident Benefits and a Dated Accident

Case Study of Shwaluk v. Royal & Sun Alliance, 2023 CanLII 19831 (ON LAT)

The Applicant was injured in a MVA on July 29, 1994. She sought accident benefits from her insurer, Lumbermen’s Mutual Casualty Company – which was later acquired by the respondent, Royal & Sun Alliance Insurance. Certain benefits were paid between 1994-1996 but some benefits were denied; and so, the Applicant applied to the LAT for dispute resolution.
On November 12, 2015 the Applicant successfully applied to have her file reopened, alleging certain impairments caused by the MVA had worsened. The Respondent first denied a causal connection between the MVA and the treatment being sought, then denied that the treatment plans, and proposed time periods for coverage, were reasonable and necessary.
The issues in this case: 1) Is the Applicant entitled to a supervisory level of attendant care? 2) If so, for what time periods? 3) Are the proposed treatment plans for chiropractic, physiotherapy and psychological services reasonable and necessary?
The LAT Member hearing this case determined that: for 1), the Applicant is entitled to a supervisory level of attendant care; for 2), the Applicant is entitled to both present and past attendant care and at the requested amount, $3,000 per month (which is the maximum allowed according to the applicable Schedule); and for 3), she is entitled to all six treatment plans.
By the time of the hearing, the Respondent had conceded that the Applicant was entitled to attendant care but disputed the time periods and monetary amounts of coverage.
The attendant care services received by the Applicant were performed by her husband; this was permitted by the Schedule in effect at the time of the accident and that thus applied to her case.
Before the MVA, the Applicant was a healthy 29-year-old married woman. Her husband worked as a construction worker and made long commutes to his work. She was responsible for most of the household chores. She worked at a government office until 1995 and then HSBC Bank from 1997-2015. The MVA was caused by her vehicle hydroplaning.
At the time of the MVA, she may have become unconscious. Her mother drove her to the hospital the same day. Following the accident, she developed symptoms that worsened and eventually led to her inability to work and perform many household and personal tasks. These included: tremoring, mental fogginess, pain throughout her body, headaches, sleep issues, tinnitus, trouble swallowing, unsteadiness, isolation, depression and sadness.
In 2016, she was diagnosed with conversion disorder aka functional neurologic disorder, a condition that is marked by uncontrollable neurological symptoms.
She had sought medical help and underwent different forms of treatment such as medications, therapy and a chronic pain management program, but the symptoms deteriorated.
The Applicant’s supporting evidence for her position included medical reports from her psychiatrist and orthopedic therapist. One of her experts asserted the need for supervisory attendant care – for past periods and on an ongoing basis – on three bases.
These were: a) that the unpredictable nature of her tremors gave rise to a safety issue and therefore indicated the need for supervisory (24/7), as opposed to scheduled, attendant care; b) that it would provide her with increased confidence because she would have to focus on her tremors less; and c) that it would increase her comfort, and thereby decrease her depression.
The Respondent’s evidence included reports by a number of experts who all disagreed with the diagnosis of conversion disorder. The psychologist recommended only a few hours per week to deal with four personal care tasks, and only on an ongoing basis.
The LAT Member found the Applicant’s evidence to be more compelling and was convinced that the Applicant suffers as a result of the 1994 MVA a physical and mental impairment that has caused her to lose her job, be homebound and in need of attendant care since at least 2018.