Shwaluk v Royal & Sun Alliance, 2023 ONLAT 20-000137/AABS

The Ontario License Appeal Tribunal recently provided its decision in Shwaluk v. Royal & Sun Alliance, 2023 ONLAT 20-000137/AABS. This complex case concerned the ongoing effects of impairments sustained by our client in an automobile accident nearly thirty years ago.

The applicant, Ms. Shwaluk, was involved in an automobile accident in July 1994 when she was 29 years old. Immediately following the accident, in addition to suffering head, back, and neck pains, the applicant developed tremors in her arms that would then spread into her legs and sometimes into her full body. Her tremor attacks were accompanied by nerve-tingling and pain, and could last anywhere between one minute and one hour.

The applicant made a claim to her insurer at the time, Lumbermans Mutual Casualty Company, which has since been acquired by Royal & Sun Alliance (“the respondent”). She was awarded benefits related to the injuries she sustained in this accident from 1994 to at least 1996.

In November 2015, the applicant requested to re-open her file with the respondent, alleging that the symptoms of her impairments had both persisted and worsened over time. She sought a “supervisory care” level of attendant care benefits (ACB) and treatment plans disputed by the respondent. The respondent denied that there was any causal relationship between the applicant’s impairments and the accident in question, and relied on medical evidence provided during insurer’s examinations to argue that the treatments sought by the applicant were not “medically reasonable and necessary.”

The License Appeal Tribunal found that Ms. Shwaluk is entitled to a “supervisory care” level of ACB, as well as awards for all treatment plans in dispute.

Furthermore, since the insurer unreasonably withheld and delayed benefits payments, the License Appeal Tribunal found that the applicant was entitled to 50% of the amount awarded for attendant care services from April 3, 2020 to November 20, 2022 (including indexation and interest), as well as 50% of the value of all six denied treatment plans.

Issues in Dispute

The respondent did not dispute the fact that the applicant should be entitled to ACB. However, the insurer did dispute her claim for a supervisory care level, which would provide her with roughly round-the-clock care every day of the week, rather than the five hours of attendant care per week they had already been paying.

The respondent also disputed whether six of the applicant’s treatment plans were medically reasonable and necessary.

As such, the key issues in dispute are as follows:

• Is the applicant entitled to a supervisory care ACB?
• Are the six treatment plans in dispute medically reasonable and necessary, and is the interest being sought applicable?
• Did the respondent unreasonably withhold and delay benefits payments and, if so, should an award be granted to the applicant?

Decision

After hearing testimony from the applicant and her husband (who also acted as her primary care provider), the applicant’s orthopaedic therapist and psychiatrist, as well as a psychiatrist, neurologist, and occupational therapist testifying on behalf of the respondent, the License Appeal Tribunal’s Vice-Chair, Brett Todd, found Ms. Shwaluk to be entitled to a supervisory care level of attendant care.

Citing the reports and testimonies of the applicant’s medical experts, the Vice-Chair stated the following:

[75] … Both supported supervisory care as opposed to scheduled attendant care services for one primary reason—the applicant’s tremors were unpredictable. I agree with them that it would be impossible to schedule attendant care in this situation, as the applicant could encounter tremors at any time that could put her personal safety and security at risk…

[77] … The respondent’s position that the applicant simply needs to wait out the tremors, and that she is in no jeopardy of falling or injuring herself, does not, in my view, fully appreciate the seriousness of the applicant’s condition.”

Regarding the six treatment plans in dispute, the Vice-Chair concluded that they were each medically reasonable and necessary, stating that:

[94]  I come to this conclusion largely because the medical experts from both parties who provided testimony and reports supported treating conversion disorder with a multidisciplinary approach that would blend psychological and physical therapy. As this approach concurs with the treatment plans in dispute—all of the recommended treatment involves physical therapy, chiropractic, and psychological therapy—it seems that all essentially agree with the nature of this approach, even if the respondent does not accept the specifics of these plans.

As to whether the applicant is entitled to an award, the Vice-Chair reached the following determination:

[118] I could excuse the insurer taking time to fully investigate all of the circumstances around the claim when it was first reopened in 2015. I accept that even at that time, this file was an old one and that it involved complicated issues. Also, the diagnosis of conversion disorder was not made until at least 2016. So, I can well understand the insurer requiring time to review the attendant care issue and treatment plans in dispute.

[119] But I cannot overlook how the insurance company took so many years to finally do away with the causation argument. The insurer’s continued reliance on causation in denial letter after denial letter from 2015 to 2020 speaks to more than just a need to take time to assess all of the issues, or even to an honest misunderstanding of the file’s complexities; it speaks to the insurer being excessive, imprudent, stubborn, inflexible, unyielding, and immoderate.

[120] As a result of all of the above, I find that the applicant is entitled to an award on the entirety of her claim regarding both the ACB issues and the treatment plans in dispute.

Conclusion

Thanks to the efforts of David Preszler, our client was awarded the maximum allowable monetary amount for attendant care plus indexation, totalling $5,054.64 per month for the remainder of 2022 (to be recalculated annually for indexation). She was also awarded over $150,000 for past attendant care services and over $16,000 for the six treatment plans in dispute.

Furthermore, since it was found that her insurer unreasonably withheld and delayed benefits payments, our client is entitled to $76,904.00 (an award of 50% of the past amount awarded for attendant care services from April 3, 2020 to November 20, 2022, including indexation and interest) as well as an award of $8,061.30 plus interest, accounting for 50% of the unreasonably withheld and delayed payments of benefits for her six treatment plans in dispute.

Congratulations to David Preszler and to our client for receiving the compensation and level of treatment she rightfully deserves.