Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 125

FSCO A05-002369

Before:

Fred Sampliner

Heard:

June 6 and 12, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Alan Leibovitch for Mr. Huynh

Patrick Ho for TD Home and Auto Insurance Company

Issues:

Mr. Tuan Anh Huynh's claims for statutory accident benefits under the Schedule¹ against TD Home and Auto Insurance Company ("TD") arise from a July 20, 2003 motor vehicle accident, and are scheduled for an upcoming arbitration hearing at the Financial Services Commission of Ontario pursuant to the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mr. Huynh claims that TD should pay him caregiver benefits until the final decision is issued, pursuant to section 65 of the Dispute Resolution Practice Code —Fourth Edition.

This motion decides:

1. Is Mr. Huynh entitled to interim caregiver benefits pursuant to section 279(4.1) of the Insurance Act?

Mr. Huynh also claims a special award under subsection 282(10) of the Insurance Act, interest on any amounts owing under subsection 46(2) of the Schedule and his expenses of this motion pursuant to subsection 282(11) of the Insurance Act.

Result:

1. Mr. Huynh is not entitled to interim caregiver benefits.

Mr. Huynh's claims for interest on any overdue amounts, a special award and his expenses of the arbitration are deferred to the arbitrator who conducts the hearing on the main issues.

EVIDENCE AND ANALYSIS:

Mr. Huynh's mother-in-law was very sick at the time of the July 20, 2003 accident. She lived with Mr. Huynh, his wife and their four children both before and afterwards. He claims that before the accident he looked after his mother-in-law's needs from the time he returned from work in the late afternoon and throughout the evening.

Following the accident, Mr. Huynh was able to sufficiently control his accident-related symptoms to be able to resume his regular work almost immediately as a full-time production supervisor at an auto parts manufacturing plant. However, Mr. Huynh claims that due to his accident injuries he was unable to take care of his mother-in-law at his family home and he retained assistance for her through January 2005.

Mr. Huynh's auto policy covers up to $250 per week of expenses for his mother-in-law's caregiver if he was her primary caregiver at the time of the accident, and incurred the claimed expenses because the accident caused him to suffer a substantial inability in performing his pre-accident caregiver duties. The main hearing on this issue is scheduled to commence on November 20, 2006.

TD argues that the procedure on this motion for payment of interim benefits should be treated in the same manner as a summary judgment under Rule 20 of the Court system's Rules of Civil Procedure. In a motion for summary judgment, the moving party must establish that there is no genuine factual issue; that is, judgment being a matter of law and success eliminating the need for a full trial.

However, an interim benefits motion under the Dispute Resolution Practice Code at this forum does not substitute for the main arbitration hearing and the standard of proof is a "balance of probability". I therefore reject TD's comparison and draw no guidance from Rule 20.

Mr. Huynh must establish two elements for success in this motion. He must demonstrate a prima facie case for entitlement to the claimed caregiver benefits and an urgent need for payment.²

Mr. Huynh contends that he provided pre-accident help to his wife's mother after he came home from work in late afternoon. She needed constant care as a result of late stage renal failure and diabetes. He gave her injections, cooked meals, supervised her and their children, and cleaned for the family until his wife returned home from work around midnight. While his wife slept in the room with her mother for safety and provided care during the mornings until she went to work in the mid-afternoon, he did the heavier work of lifting her for baths and toiletry before the accident.

Although Mr. Huynh's evidence is consistent, there is no expert health care opinion comparing his abilities pre-accident and post-accident. There is general consistency in the health care evidence describing Mr. Huynh's post-accident neck and low back pain, right shoulder ache, headaches, and sleep loss, which supports he suffered functional disability for a time, but he did not specifically explain in his evidence why he could not perform his caregiver tasks. Without an expert analysis, I am unable to conclude that Mr. Huynh has a prima facie claim for entitlement to caregiver benefits.

The lack of expert opinion supporting Mr. Huynh's claim is coupled with evidence that the amount is inflated. The record of Mr. Huynh's examination by TD under oath generally explains some details about his family's post-accident arrangements for his mother-in-law's care, but there is an important contradiction in the payment scheme. He admitted paying his mother-in-law's caregiver for several hours a day when she performed no work in order to make the 5 hours he wanted to bill.

The over-billing together with lack of independent analysis of the mother-in-law's specific needs by a health expert undermines the claim value shown on his applications. I find that the value of Mr. Huynh's caregiver benefits claim is not well substantiated, and that this issue is better left to full examination at hearing of all the evidence.

In addition, there is no urgency in paying Mr. Huynh caregiver benefits. Mr. Huynh acknowledged in his evidence at the hearing that he was the main family breadwinner until his October 2005 layoff, and that his inability to secure new employment is the spark for this motion. There is no expert opinion to support that his layoff is accident-related.

Mr. Huynh used his earning/savings and borrowed funds from relatives to pay his mother-in-law's caregiver until these expenses stopped in late January 2005. There is no documentary support or testimony from his relatives that they have demanded re-payment or that the family needed, paid or hired further caregiver services for Mr. Huynh's mother-in-law since he last submitted a claim a year and a half ago.

I rely on the fact that there is no demonstrable need for ongoing caregiver services that could further drain Mr. Huynh's limited financial resources to find that he has not demonstrated an urgent need to pay for the claimed caregiver services.³ Therefore, I deny Mr. Huynh's motion for an order to pay him interim caregiver benefits.