Neutral Citation: 2004 ONFSCDRS 51
FSCO A03-000609
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
THE ESTATE OF SALVATORE BUCCELLATO
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
David Muir
Heard:
February 23 and 24, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Patrick DiMonte for Mr. Buccellato
Donald Harvey for Allstate Insurance Company of Canada
Issues:
Salvatore Buccellato, was injured in a motor vehicle accident on June 17, 1998. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1 Mr. Buccellato passed away in October 2002 of causes unrelated to the motor vehicle accident.
Claims for benefits under the Schedule have been advanced by the Estate of Mr. Buccellato. The parties were unable to resolve their disputes through mediation, and the Estate of Mr. Buccellato applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Estate of Mr. Buccellato entitled to a non-earner benefit from December 16, 1998 to July 11, 2001, pursuant to section 12 of the Schedule?
Is the Estate of Mr. Buccellato entitled to an attendant care benefit of $150 per week, from June 17, 1998 to July 11, 2001, pursuant to section 16 of the Schedule?
Results:
The Estate of Mr. Buccellato is not entitled to a non-earner benefit.
The Estate of Mr. Buccellato is not entitled to an attendant care benefit.
EVIDENCE AND ANALYSIS:
Mr. Buccellato was an active, retired gentlemen of 74 years when on June 17, 1998, he was injured in an automobile accident. While walking in his neighbourhood he was hit by a van backing out of a residential driveway. He fell to the ground injuring his left knee and lower back. He was able to get home on his own but later when his knee began to swell up, was taken to the hospital where x-rays disclosed fractures of the lateral tibial plateau. A full-length leg cast was required. As a result, for several weeks Mr. Buccellato was limited in his mobility, being confined to a wheelchair for some period of time post-accident.
During the time that Mr. Buccellato was in a cast, he required assistance with a number of his activities of daily living. On June 24, 1998, a representative of Allstate visited Mr. Buccellato at his home. His daughter, Ms. Garisto was present and assisted her father. In an activities of daily living form completed at the time, Mr. Buccellato indicated to Allstate that he could not perform: any personal care tasks; most of the listed mobility tasks; all meal preparation tasks; all cleaning, laundry, and home maintenance activities.
Allstate offered the services of an occupational therapist. Allstate's position at the hearing was that this offer was made in order to assess Mr. Buccellato's need for attendant care. In light of the subsequent claim for this benefit, it is possible that the Buccellato family did not understand what was being offered and that Allstate was not entirely clear about this. In any event, the Buccellato family declined the offer and said that they were coping for the time being. A claim for attendant care benefits was not advanced again until after Mr. Buccellato passed away in October 2002.
The cast was removed on July 23, 1998 and when Mr. Buccellato visited his family physician on July 25, he was able to ambulate using crutches. He visited his family physician again on August 1, October 6, November 1 and November 14, 1998. According to the doctor's report, Mr. Buccellato made progressive improvement over this time period, but was still experiencing pain when using stairs. Similar progress is noted by Dr. Kwok, an orthopaedic surgeon involved in Mr. Buccellato's care.
Prior to the accident Mr. Buccellato had suffered from chronic active Hepatitis C for many years, although it does not appear to have limited his ability to function in any significant way. In 1999 this condition deteriorated. He was also diagnosed with liver cancer early that same year, which ultimately took his life in October 2002.
Mr. Buccellato lead an active retired life prior to the motor vehicle accident. He participated in the maintenance of the family home, for example he would cut the grass and shovelled the snow in winter. He tended to a sizeable garden on his property. Mr. Buccellato did not own a car and enjoyed walking about his neighbourhood on a daily basis. He walked to a local shopping mall at least once a day to do the grocery shopping. He also walked to his church for Bingo on Friday evenings and for services on Sundays. Although, this is not crystal clear on the evidence presented, prior to the accident he also may have begun walking his granddaughter to and from her school each day and to the park near their home. In addition to these more active pursuits, Mr. Buccellato enjoyed watching Italian language television which he did each day and his Italian language newspapers which he read over morning coffee.
Subsequent to the motor vehicle accident, and for the period during which Mr. Buccellato was in a cast, his activities were quite limited. The restriction on his activities of daily living as recorded in the OCF-12 are set out above. For that period, he would have been unable to take his daily walks in the neighbourhood and he could not attend to his garden - one of his primary recreational outlets. For that period of time, he would not have been able to walk his granddaughter to and from her school and to the playground.
Once the cast was removed, Mr. Buccellato regained significant mobility, however it is fair to say that he was never as mobile again as he had been prior to the accident. He was able to walk his granddaughter to and from her school. On the evidence before me it is at least possible that Mr. Buccellato only began walking his daughter to the pre-school subsequent to the motor vehicle accident. In any event, it is clear that he was able to walk her to and from her school for a considerable period of time after the accident and perhaps as long as the end of the school year in June 2002 when the little girl moved to a school closer to her own home. It is also appears likely that he was able to walk to the shopping mall, if not as often or with as much ease and enjoyment as he had prior to the accident.
Mr. Buccellato never went back to his gardening, and other outdoor home maintenance tasks such as the snow shovelling or grass cutting. This caused him significant frustration and according to his daughter, caused him to give up on life.
Mr. Buccellato was able to attend his Bingo and other activities at the church, although after the accident he would be picked-up and returned to his home by friends and family, because of his difficulty in walking. The accident had no lasting impact on his ability to read, watch television, make his coffee or otherwise participate in his family life.
Non-Earner Benefits
In order to establish entitlement to a non-earner benefit Mr. Buccellato must show that he has suffered a complete inability to carry on a normal life as a result of the motor vehicle accident.
The test to meet is described further in section 2(4) of the Schedule:
(4) For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of the accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person engaged before the accident. (emphasis added)
The benefit is not payable for the first six months after the onset of the complete inability to carry on a normal life.
The test for entitlement to a non-earner benefit is a strict one. To meet it requires a significant degree of impairment and a marked, measurable impact on levels of function and consequent ability of the insured person to continue in their pre-accident activities.
Mr. Buccellato does not meet the test for entitlement to a non-earner benefit on the facts as presented to me. It is difficult to say with any certainty what post accident activities, aside from his gardening and other outdoor home maintenance tasks, that Mr. Buccellato was continuously prevented from performing as a result of the accident. After his cast was removed, he began to recover his mobility and according to the evidence provided to me, was able to resume most of his pre-accident activities. Whatever "substantially all" of a person's pre-accident activities might be said to mean, it does not mean only one or two activities previously performed, however significant they might have been in the individual's life.
Accordingly, I find that the Estate of Mr. Buccellato is not entitled to a non-earner benefit.
Attendant Care Benefits
Section 16(2) of the Schedule requires an insurer to pay for a reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Subsection 16(4) provides that the amount payable for attendant care "shall be determined in accordance with Form 1".
Based on the evidence presented here, Mr. Buccellato was likely entitled to attendant care benefits, at least for the period that he was in a cast and largely immobile. The Estate claims $150 per week from the date of the accident to July 2001.
The Schedule requires that the amount of the benefit be determined in accordance with Form 1. In this case, there was no Form 1 prepared. The failure of the Estate of Mr. Buccellato to provide a Form 1 may not be fatal, however, at a minimum there must be fairly detailed evidence of what services were provided, by whom and for what period of time. No such evidence was presented at the hearing. It is accordingly impossible to determine what value to place on the services that were very likely provided to Mr. Buccellato. To my mind, the Schedule does not allow me to speculate about the nature of the services provided, the length of time they were provided, as well as their cost in order to make an award based on what seems reasonable.
The evidence suggests that Mr. Buccellato may have had the need of some level of attendant care in the weeks immediately after the accident. The Estate suggests that Allstate may not have properly advised Mr. Buccellato of the nature of the benefits available to him.
However, I am not prepared to make any such findings in this case. The evidence surrounding the offer of the services of the occupational therapist made on June 24, is too insubstantial to come to any firm conclusions about what was said or understood by the various participants at that time. I agree with Allstate, that it is entirely possible based on what we know, that Mr. Buccellato was coping with his difficulties and preferred not to have anyone from outside the family assisting him at that time. Once the cast was removed, the evidence is clear that Mr. Buccellato regained much of his mobility and correspondingly his need for any attendant care would have been likely quite limited and perhaps of no consequence to him at the time. In any event, there is simply not enough evidence to support a finding that Allstate failed in its obligations to explain the benefits available to Mr. Buccellato.
Accordingly, I find that the Estate of Mr. Buccellato is not entitled to an attendant care benefit.
EXPENSES:
The parties did not speak to expenses. In the event that they are unable to resolve the issue themselves they may raise the issue within 30 days of this date in accordance with Rule 75 of the Practice Code.
April 14, 2004
David Muir
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 51
FSCO A03-000609
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ESTATE OF SALVATORE BUCCELLATO
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The application for arbitration is dismissed.
In the event that the parties are unable to resolve the issue of expenses, they may speak to the issue within 30 days of this date in accordance with Rule 75 of the Practice Code.
April 14, 2004
David Muir
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.