Dr. Earl Consky

The insurer appealed an arbitration decision awarding the insured caregiver and attendant care benefits, as well as a special award.

The insurer argued the insured had not 'incurred' the expenses because she did not pay the family members who provided the care.

The Director's Delegate upheld the arbitrator's finding that the expenses were incurred, noting the insurer failed to advise the insured she could claim for services provided by family members.

However, the appeal was allowed in part because the arbitrator erred by failing to apply the 104-week statutory limit to the benefits.

The Delegate also affirmed the arbitrator's independent jurisdiction to raise the issue of a special award, finding that adequate notice was provided to the insurer.

The applicant, who had a pre-existing dystonic tremor, was injured in a motor vehicle accident.

She claimed statutory accident benefits for caregiver expenses, attendant care, and physiotherapy, arguing the accident worsened her condition and left her unable to care for herself and her infant daughter.

The insurer denied the claims, relying on an orthopaedic surgeon's report and arguing the expenses were not 'incurred' because family members provided the care without payment.

The arbitrator found the applicant was a 'thin skull' claimant whose disability was materially contributed to by the accident.

The arbitrator held that the applicant had 'incurred' an obligation for the care provided by her family and awarded caregiver and attendant care benefits, as well as the physiotherapy claim.

Furthermore, the arbitrator found the insurer unreasonably withheld benefits and ordered a special award of 50 percent of the outstanding benefits.