Mary Anthonipillai v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2013 ONFSCDRS 91

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2013 ONFSCDRS 91

FSCO A11-001168

BETWEEN:

MARY ANTHONIPILLAI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before: Robert Bujold

Heard: August 7, 8 and 9, 2012, at the offices of the Financial Services Commission of Ontario in Toronto. A telephone conference call was held on October 1, 2012. Written submissions were received on August 23, 30 and October 4, 2012.

Appearances: Sharan Sodhi for Mrs. Anthonipillai

Domenico Nicassio for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mary Anthonipillai, was injured in a motor vehicle accident on April 21, 2008. She applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ Disputes arose regarding the payment of certain benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Anthonipillai 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 Mrs. Anthonipillai entitled to receive caregiver benefits in the amount of $250.00 per week from April 21, 2008 to April 21, 2010?
Is Mrs. Anthonipillai entitled to receive benefits for housekeeping and home maintenance services in the amount of $100.00 per week from April 21, 2008 to April 21, 2010?
Is Security National liable to pay Mrs. Anthonipillai’s expenses in respect of the arbitration?
Is Mrs. Anthonipillai liable to pay Security National’s expenses in respect of the arbitration?
Is Mrs. Anthonipillai entitled to interest for the overdue payment of benefits?

Preliminary Issue:

Is Mrs. Anthonipillai disentitled from receiving caregiver and housekeeping and home maintenance benefits for the periods claimed because she failed, without reasonable explanation, to submit a Disability Certificate to Security National until after the period of her claims?

Result:

Mrs. Anthonipillai is disentitled from receiving housekeeping and home maintenance benefits because she has never submitted a Disability Certificate in support of her application for this benefit.
Mrs. Anthonipillai is not disentitled from receiving caregiver benefits because she failed, without reasonable explanation, to submit a Disability Certificate to Security National until after the period of her claims.
Nevertheless, Mrs. Anthonipillai failed to establish an entitlement to caregiver benefits on the merits.
The issue of expenses of the arbitration is deferred.

EVIDENCE AND ANALYSIS:

Preliminary Issue:

Security National maintained that no benefits for caregiver and housekeeping services are payable to Mrs. Anthonipillai for the period claimed (two years post-accident) because she failed, without reasonable explanation, to submit a Disability Certificate in support of her application for these benefits until October 17, 2011 (approximately 3½ years post-accident and approximately two months after the pre-hearing in this arbitration).

Mrs. Anthonipillai’s principal argument in response was that Security National had waived the requirement for a Disability Certificate by continuing to adjust her claim.

For the reasons that follow, I find that Security National did not waive or abandon the requirement that Mrs. Anthonipillai submit a Disability Certificate in support of her claims for caregiver and housekeeping benefits. Further, the one and only Disability Certificate ever submitted by Mrs. Anthonipillai left blank the question of whether she had sustained a substantial inability to perform her pre-accident housekeeping tasks. It only addressed caregiver benefits. Since I find the requirement for a Disability Certificate was not waived, Mrs. Anthonipillai continues to be disentitled to housekeeping benefits and home maintenance benefits, and her claim for housekeeping and home maintenance benefits is therefore dismissed.

Mrs. Anthonipillai also advanced alternative arguments on the preliminary issue that still require consideration as they relate to her claim for caregiver benefits. In that regard, Mrs. Anthonipillai submitted that Security National failed to clearly communicate to her that, without a reasonable explanation for the delay in submitting the Disability Certificate, she may be permanently disentitled from receiving the benefits claimed for the period of the delay. As a result, Mrs. Anthonipillai maintained that Security National should not be entitled to rely on the lateness of the Disability Certificate to deny benefits for the period prior to its receipt, even if she did not have a reasonable explanation for the delay. In the further alternative, Mrs. Anthonipillai submitted that she had a reasonable explanation for the delay.

As explained below, I find that where an insurer seeks to rely on a delay in submitting a Disability Certificate, without reasonable explanation, as a bar to payment of benefits for the period of the delay, the insurer must clearly communicate to the insured person that any delay that is not reasonably explained will result in permanent disentitlement to benefits for the period of the delay. I find that Security National failed to meet this requirement and, as a result, it is not entitled to maintain that caregiver benefits are not payable for the period of the delay unless Mrs. Anthonipillai can provide a reasonable explanation for the delay.

As a result of these findings, it was not necessary to decide whether Mrs. Anthonipillai’s explanation for the delay in submitting a Disability Certificate was reasonable.

The following are my reasons on the preliminary issue.

The requirement to submit a Disability Certificate in support of specified benefits

Subsection 35(1) of the Schedule identifies benefits for caregiver and housekeeping and home maintenance services as “specified benefits.”

Subsection 35(2) provides that “an insured person who applies for a specified benefit shall submit with the application a disability certificate completed no earlier than 10 business days before the date the application is submitted.”

Pursuant to subsection 35(6), the insurer may make a determination that the person is not entitled to the specified benefit if the insured person fails or refuses to submit a completed disability certificate as required by subsection 35(2).

Subsection 35(13) provides that “no specified benefits are payable for the period after the day the insurer receives the application and before the day the insurer receives the completed disability certificate.”

Section 31 is a saving provision for failing to comply with the time limits set out in Part X of the Schedule.² It provides that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.”

Factual background relevant to the preliminary issue

Mrs. Anthonipillai was involved in an accident on April 21, 2008. Security National provided Mrs. Anthonipillai with an “Application Package” on April 24, 2008. It included an Application for Accident Benefits (OCF-1) and a Disability Certificate (OCF-3).

By Explanation of Benefits Payable (OCF-9) dated June 9, 2008, Security National advised Mrs. Anthonipillai that it had not yet received her completed Application or Disability Certificate. Security National advised Mrs. Anthonipillai that, without these documents, it could not assess which benefits she might be eligible to receive.

Mrs. Anthonipillai finally submitted an Application for Accident Benefits dated August 1, 2008. In her Application, she claimed to be unable to provide the caregiving that she used to provide to her mother-in-law pre-accident. She did not, however, include a completed Disability Certificate with her Application.

By OCF-9 dated October 29, 2008, Security National advised Mrs. Anthonipillai that because she had failed to submit a completed Disability Certificate with her Application, it was unable to determine her eligibility for specified benefits, including a caregiver benefit and housekeeping and home maintenance. The OCF-9 enclosed another blank Disability Certificate. The OCF-9 advised Mrs. Anthonipillai to have the Disability Certificate completed by a health practitioner of her choosing. The OCF-9 also provided “Please be advised that no benefit is payable until we have received the completed disability certificate.”

Throughout the first several months of her claim, Security National approved various treatments and, notwithstanding the lack of a Disability Certificate, approved various assessments, including a functional capacity evaluation by Dr. Gayah, chiropractor. In his report dated November 5, 2008, Dr. Gayah opined that, while Mrs. Anthonipillai met the functional requirements of her sedentary job as a customs broker, she did not meet the medium strength requirements of a homemaker. The report makes passing reference to Mrs. Anthonipillai taking care of her mother-in-law, but it does not identify her caregiving responsibilities or make any explicit conclusions about whether Mrs. Anthonipillai’s functional restrictions would prevent her from carrying out those responsibilities.³ Dr. Gayah’s report led to treatment recommendations which were also approved.

By Application for Expenses (OCF-6) dated December 16, 2008, Mrs. Anthonipillai submitted a claim for caregiver benefits and housekeeping and home maintenance benefits.

At this point, Security National set up insurer examinations to determine whether Mrs. Anthonipillai met the disability tests for caregiver and housekeeping benefits. Examinations were conducted by Avi Kaplun, occupational therapist, on February 20, 2009 and by Dr. Oshidari, physiatrist, on March 4, 2009.

Further to its insurer examinations, Security National sent an OCF-9 dated March 26, 2009, enclosing the reports of Mr. Kaplun and Dr. Oshidari, and advising Mrs. Anthonipillai that she was not entitled to caregiver and housekeeping benefits on the basis of the reports.

By OCF-6 dated April 23, 2009, Mrs. Anthonipillai submitted a further claim for caregiver benefits and housekeeping and home maintenance benefits.

In response to the further submission, Security National sent an OCF-9 dated May 22, 2009 setting out various bases upon which caregiver benefits and housekeeping and home maintenance benefits were not being paid. These included concerns that the service provider, Mrs. Anthonipillai’s daughter, Sharel George, was reported to be enrolled as a full-time student at the University of Toronto and living in Schomberg. The OCF-9 also noted that, in his report, Mr. Kaplun indicated that Mrs. Anthonipillai had stated to him that her husband, Victor George, had “taken over most of the housekeeping and caregiving duties since the motor vehicle accident.” The OCF-9 also repeated Security National’s position that, based on the insurer examinations, Mrs. Anthonipillai did not suffer from a substantial inability to perform her pre-accident caregiving and housekeeping activities. Finally, and most importantly for the purpose of the preliminary issue, Security National again reminded Mrs. Anthonipillai that she had failed to submit a Disability Certificate to substantiate her claims.

The OCF-9 dated May 22, 2009 further advised Mrs. Anthonipillai that “in order to consider a reimbursement of any of the above expense, we require the following…” The OCF-9 then sets out various information and documentation required by Security National, including: confirmation of Sharel George’s address and residence; particulars of her school attendance; a medical note regarding the mother-in-law’s medical condition; particulars of government services being provided to the mother-in-law; proof of the mother-in-law’s residence; a completed Permission to Disclose Health Information (OCF-5) from Mrs. Anthonipillai’s family doctor, and any other health professional she had seen since the accident; and, again most importantly for the purpose of the preliminary issue, an OCF-3 Disability Certificate.

Much of the information and documentation requested by Security National in its OCF-9 dated May 22, 2009 was not provided, if at all, until late 2011, after production requests were made at and following the pre-hearing on August 10, 2011. I will return to the significance of the missing or delayed information later in this decision, but for the purpose of the preliminary issue, it suffices to note that the only Disability Certificate ever provided by Mrs. Anthonipillai is a Disability Certificate dated October 17, 2011 prepared by Dr. Gayah. Mrs. Anthonipillai’s counsel provided the Disability Certificate to Security National’s counsel under cover of letter dated November 11, 2011.⁴

Part 6 of Dr. Gayah’s Disability Certificate (Disability Tests and Information) identifies that Mrs. Anthonipillai had gone back to full-time duties at work. There are also check marks in the “yes” boxes confirming that Mrs. Anthonipillai suffers from “a complete inability to carry on a normal life” and “a substantial inability to engage in the caregiving activities in which he/she engaged at the time of the accident.” Part 6 also asks “If you responded ‘Yes’ to any disability test above, what is the anticipated duration?” In response to this question, Dr. Gayah checked off the box “9-12 weeks.”

Part 6 also asks “Does the applicant suffer from a substantial inability to perform the housekeeping and home maintenance services that he/she normally performed before the accident?” Neither the “yes” nor the “no” box is checked off. There is no response to this question.⁵

By letter dated January 9, 2012, Security National acknowledged receipt of the Disability Certificate and advised Mrs. Anthonipillai as follows: “The Certificate states that you are disabled from caregiving. We will not entertain payment of this benefit unless (1) a reasonable explanation is given as to why the Certificate was signed and submitted over three years post-accident, and (2) clarification as to when the diagnosis continued in the certificate was made, i.e. October 2011 or from a much earlier consultation.” This was the first time Security National advised Mrs. Anthonipillai that, in addition to requiring a Disability Certificate, it would also need a reasonable explanation for the delay before it would consider payment.

Shortly thereafter, on January 23, 2012, counsel for Security National wrote to the Commission requesting, amongst other things, that the hearing that was then scheduled to commence on February 21, 2012 be re-scheduled due to production deficiencies, and also requesting that a preliminary issue be added to the arbitration regarding the late delivery of a Disability Certificate without reasonable explanation. The preliminary issue was not added at that time, but the hearing was re-scheduled to August 7, 2012. At the commencement of the hearing, I added the preliminary issue to the arbitration.

Mrs. Anthonipillai offered as a reasonable explanation for the delay in submitting a Disability Certificate that she believed one had been completed by her family doctor, and that she must have been confused with disability paperwork that her family doctor had filled out in April and June 2008 for her collateral benefits insurer. She also offered that she may not have received a Disability Certificate, in blank, from Security National. Her counsel also cited medical evidence of psychological conditions as a basis for the delay. Even though Security National had requested a reasonable explanation for the delay in its letter of January 9, 2012, the explanations proffered by Mrs. Anthonipillai do not appear to have been provided in advance of the hearing, but came out during Mrs. Anthonipillai’s testimony at the hearing and in post-hearing submissions.

Did Security National waive or abandon its right to a Disability Certificate?

I am not persuaded that Security National waived or abandoned the requirement for a Disability Certificate in support of Mrs. Anthonipillai’s application for caregiver and housekeeping benefits.

Mrs. Anthonipillai submitted that Security National waived the requirement for a Disability Certificate by continuing to adjust the claim and paying certain benefits. I disagree. Security National had an obligation to adjust Mrs. Anthonipillai’s claim regarding medical benefits and assessments, whether or not she was in compliance with her obligation to submit a Disability Certificate for other specified benefits. Determining whether treatment and assessments are reasonable and necessary involves separate considerations from those needed to determine whether disability tests have been met for paying caregiver and housekeeping benefits.

Further, the treatment and assessments that Security National adjusted were applied for through OCF-18 and OCF-22 forms, respectively.⁶ These forms require the signature of a regulated health professional or social worker confirming that the information contained therein is accurate. The signature also confirms the opinion that the treatment or assessment is reasonable and necessary, and acknowledges that making a false statement may constitute an offence under the Insurance Act and/or the Criminal Code.

Security National was entitled to insist on the same assurances through the submission of a Disability Certificate (OCF-3) in support of Mrs. Anthonipillai’s applications for caregiver and housekeeping benefits. Even if Dr. Gayah’s functional capacity evaluation of November 5, 2008 was provided to Security National at the time it was prepared, it would not constitute a sufficient substitute for a Disability Certificate. Security National asked for a Disability Certificate at least twice after the date of Dr. Gayah’s report.

I am also not persuaded by Mrs. Anthonipillai’s argument that, by proceeding with insurer assessments in early 2009, Security National waived the requirement for a Disability Certificate. Mrs. Anthonipillai referred to subsection 37(5) of the Schedule as “strongly suggesting” the receipt of a Disability Certificate as the triggering event for insurer examinations. Mrs. Anthonipillai argued that, since Security National proceeded with its own assessments, it must be seen as having waived the requirement for a Disability Certificate.

First, I note that section 37 deals with determinations of continuing entitlement. That is not the case here. Further, Security National only proceeded with its own assessments of initial entitlement after Mrs. Anthonipillai had failed to respond to repeated requests for a Disability Certificate and yet proceeded regardless to submit claims (OCF-6s) for reimbursement of caregiver and housekeeping expenses. Section 42 of the Schedule provides that insurer assessments may be conducted as often as is reasonably necessary. I find that, in these circumstances, the assessments were reasonably necessary at the time they were conducted.

Apart from being a reasonable response to OCF-6 submissions made in the absence of a Disability Certificate, I also note that Security National could not know if or when Mrs. Anthonipillai might eventually submit a Disability Certificate. If, as in this case, Security National had waited until after Mrs. Anthonipillai submitted a Disability Certificate to conduct its own assessments, it would have been greatly prejudiced from securing a medical opinion regarding Mrs. Anthonipillai’s entitlement to the specified benefits for the period claimed. I do not interpret the Schedule as requiring an insurer to wait, to its detriment, for an insured person to fully comply with her obligations in respect of claimed benefits before it may conduct its own assessments, lest it be deemed to have waived compliance by the insured person.

In conclusion, I find that Security National did not waive its right to require that Mrs. Anthonipillai submit a Disability Certificate in support of her claims for caregiver and housekeeping benefits. The only Disability Certificate ever submitted to Security National addressed the caregiver claim, but failed to respond to whether Mrs. Anthonipillai was substantially unable to perform her pre-accident housekeeping and home maintenance tasks. As a result, Mrs. Anthonipillai continues to be disentitled to housekeeping and home maintenance benefits, and her claim for housekeeping and home maintenance benefits is therefore dismissed.

I will now consider Mrs. Anthonipillai’s alternative arguments on the preliminary issue as they relate to her claim for caregiver benefits.

Is Security National entitled to rely on subsection 35(13) to deny caregiver benefits for the period prior to its receipt of a Disability Certificate, unless Mrs. Anthonipillai provides a reasonable explanation for the delay in submitting the Disability Certificate?

As noted above, Mrs. Anthonipillai submitted that Security National should not be entitled to rely on the lateness of the Disability Certificate to deny benefits for the period prior to its receipt because Security National failed to communicate to her that, without a reasonable explanation for the delay in submitting the Disability Certificate, she may be permanently disentitled from receiving the benefits claimed for the period of the delay.

It is clear that Security National communicated to Mrs. Anthonipillai on at least three occasions⁷ that no benefits would be payable or expenses considered unless Mrs. Anthonipillai submitted a completed Disability Certificate. However, it is also clear that Security National did not communicate to Mrs. Anthonipillai that permanent disentitlement to benefits could result for the period of any delay in submitting a Disability Certificate unless she also provided a reasonable explanation for the delay. The first reference to a requirement for a reasonable explanation came in a letter from Security National to Mrs. Anthonipillai dated January 9, 2012.⁸ The letter acknowledges receipt of Dr. Gayah’s OCF-3 and states:

The Certificate states that you are disabled from caregiving. We will not entertain payment of this benefit unless (1) a reasonable explanation is provided as to why the Certificate was signed and submitted more than three years after your application for benefits was received, and (2) You or the health professional in question provides information about when the diagnosis on the Certificate was made, i.e. October 2011 or from a much earlier consultation. Please consider this a request for information made pursuant to Section 33 (1) of the SABS. [emphasis in original]

The letter still does not refer to subsection 35(13) of the Schedule or explain that it provides for permanent disentitlement to specified benefits unless a reasonable explanation is given for the delay in submitting a Disability Certificate. But even if that consequence can be inferred from Security National’s letter, the fact remains that the period of Mrs. Anthonipillai’s claim for caregiver benefits (April 21, 2008 to April 21, 2010) had already passed by the time the letter was sent to Mrs. Anthonipillai. If Security National is entitled to rely on subsection 35(13) to deny benefits for the period prior to its receipt of the Disability Certificate, and Mrs. Anthonipillai does not have a reasonable explanation for the delay, she will be permanently disentitled from receiving specified benefits for the full period of her claims, regardless of the merits.

Subsection 32(2)(c) of the Schedule provides that, as part of the process of applying for benefits, “The insurer shall promptly provide the person with information to assist the person in applying for the benefit.”

In Horvath and Allstate Insurance Company of Canada,⁹ and again in Bhada and Security National Insurance Co./ Monnex Insurance Mgmt. Inc.,¹⁰ Arbitrator Leitch considered an insurer’s obligations under subsection 32(2)(c) when purporting to rely on the time limit in subsection 32(3) of the Schedule to deny benefits. Subsection 32(3) requires that a person applying for a benefit “shall submit a signed application for the benefit to the insurer within 30 days after receiving the application forms.”

The arbitrator’s analysis in Horvath begins with the proposition that “[an insurer] cannot rely upon the time limit imposed by section 32(3) without first establishing that it discharged its own obligation under section 32(2)(c) of the Schedule.” The arbitrator then considered this obligation in light of what was then a recent decision of the Supreme Court of Canada: Smith v. Co-operators General Insurance Company.¹¹

In Smith, the Court considered whether the insurer had given the insured a “proper refusal,” given the insurer’s obligation under section 71 of the Schedule¹² “to inform the person in writing of the procedure for resolving disputes relating to benefits under sections 279 to 283 of the Insurance Act.” The Court concluded that the insurer had not met its obligation, and therefore the two-year limitation period in subsection 281(5) of the Insurance Act had not been triggered by the insurer’s notice denying payment of further benefits.

The Court did not stipulate the precise language that should have been contained in the insurer’s notice, but the Court observed that in communicating with the insured person, the insurer had an obligation to use “straightforward and clear language, directed towards an unsophisticated person” that provided “basic information” about the “most important points of the process.” In arriving at its decision, the Court also noted that “there is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.”

After reviewing the principles set out in Smith, Arbitrator Leitch arrived at the following conclusion about the application of those principles to Ms. Horvath’s situation:

I see no reason why the consumer protection principles confirmed in Smith should apply to the limitation periods imposed by the dispute resolution process but not to the time limits imposed by the process for claiming benefits. In each case, the insured person’s claim may be rejected or dismissed, not on its merits, but because it is out of time.

With respect to the sort of information that Allstate should have provided to Ms. Horvath pursuant to subsection 32(2)(c), if it intended to rely on the time limit in subsection 32(3), the arbitrator had this to say:

There is no doubt that the time limit imposed by section 32(3) is one of the most important points or parts of the process for claiming benefits. In my view, basic information about this time limit includes information about the potential consequences of failing to either comply with it or to provide a reasonable explanation for non-compliance. Without this information, insured persons may think that the only consequence of their own delay will be delay in receiving benefits. As I read the principles enunciated in the Smith case, section 32(2)(c) should be interpreted in a way which protects consumers by requiring insurers to inform insured persons of the far more serious potential consequences of their failure to comply with section 32(3).

In Bhada, Arbitrator Leitch also found that the insurer had “failed to communicate to Mr. Bhada the potential consequence of permanent disentitlement,” and concluded “that an insurer who seeks to rely upon the time limit imposed by section 32(3) must clearly explain to the insured person both of these potential consequences of his/her failure to comply with that time limit as well as his/her right to provide a reasonable explanation for any such failure.”¹³

I agree with the analysis in Horvath and Bhada, and find the principles equally applicable to the case at hand. As in those cases, Mrs. Anthonipillai was required to comply with a time limit. A failure to comply with the time limit would not only attract a delay in receiving specified benefits, but Mrs. Anthonipillai would also face “the potential consequence of permanent disentitlement” to those benefits for the period of any delay,¹⁴ unless she could provide a reasonable explanation for the delay. While the first consequence may have been communicated to Mrs. Anthonipillai, the second and more serious consequence was not even alluded to until after the period of her claims had passed.

I find that, pursuant to subsection 32(2)(c) of the Schedule, Mrs. Anthonipillai was entitled to be promptly advised, when she was first in default, that 1) she was required to submit a completed Disability Certificate before Security National would consider paying her claims for specified benefits; and 2) specified benefits would not be payable for the period after the day Security National received her application for specified benefits and before the day Security National received a completed Disability Certificate, unless she provided a reasonable explanation for the delay. Security National did not meet its obligation to promptly communicate these consequences to Mrs. Anthonipillai. I do not accept Security National’s argument that any requirement to advise Mrs. Anthonipillai of these consequences was obviated by the fact that she was represented by counsel throughout the relevant time periods. The idea that there is an exception to notice obligations for applicants who are represented by counsel has been rejected in several cases.¹⁵

As a result of the foregoing, I find that Security National is not entitled to rely on subsection 35(13) of the Schedule to maintain that caregiver benefits are not payable for the period of the delay in submitting Dr. Gayah’s Disability Certificate unless Mrs. Anthonipillai can provide a reasonable explanation for the delay.

Did Mrs. Anthonipillai provide a reasonable explanation for the delay in submitting a Disability Certificate?

Having found that Security National is not entitled, in the circumstances of this case, to rely on subsection 35(13) to deny caregiver benefits for the period prior to its receipt of Dr. Gayah’s Disability Certificate, it is not necessary for me to decide, pursuant to section 31, whether Mrs. Anthonipillai had a reasonable explanation for the delay in submitting the Disability Certificate.

Conclusions regarding the preliminary issue

In summary, on the preliminary issue, I conclude as follows:

Security National did not waive the requirement for a Disability Certificate in support of Mrs. Anthonipillai’s claims for specified benefits.
Mrs. Anthonipillai did not submit a Disability Certificate in support of her claim for housekeeping and home maintenance benefits. As a result, her claim for housekeeping and home maintenance benefits is dismissed.
With respect to her claim for caregiver benefits, Mrs. Anthonipillai did submit a Disability Certificate in support of her claim.
Security National is not entitled to rely on subsection 35(13) of the Schedule to deny caregiver benefits for the period prior to its receipt of the Disability Certificate because Security National failed to explain to Mrs. Anthonipillai the potential consequence of permanent disentitlement unless she had a reasonable explanation for the delay.
As a result, Mrs. Anthonipillai is entitled to have her claim for caregiver benefits determined on its merits.

Entitlement to Caregiver Benefits:

Although Mrs. Anthonipillai was not precluded from having her claim for caregiver benefits determined on its merits, I find that she nevertheless failed to meet her onus of establishing entitlement to caregiver benefits. The following are my reasons.

Background

At the time of the accident, Mrs. Anthonipillai was 55 years old, and worked full-time as a customs broker with Fed Ex. She lived with her husband (Victor), and her mother-in-law (Josephine) who suffered from Alzheimer’s disease. Mrs. Anthonipillai maintained that her mother-in-law was a person in need of care, and she provided 99% of that care. Two weeks before the accident, her husband had undergone surgery on his left shoulder, as a result of a work-related injury. He had been off work, though, since sometime in 2007. Mrs. Anthonipillai also has two daughters (Sharel and Merryl) who, at the time of the accident, were both pursuing post-secondary educations, and did not live at home.

The accident

Mrs. Anthonipillai was the seat-belted driver of a four-door Lexus sedan that was travelling northbound on Highway 27. She decelerated as she approached a school zone, and was rear-ended by another car. Mrs. Anthonipillai’s vehicle did not hit another object, and her airbags did not deploy. Her head was thrown forward and backward, and she believes her right knee struck the interior of her vehicle.

Mrs. Anthonipillai did not report a loss of consciousness, and she did not experience any immediate pain, but she was “shocked” by the incident.

A witness helped Mrs. Anthonipillai from her car and she called her brother who came to the scene of the accident. Paramedics also arrived and she declined assistance. She was told to consult her family doctor. Her brother then drove Mrs. Anthonipillai in her vehicle to her home, where she rested.

Post-accident complaints, investigations and diagnoses

Mrs. Anthonipillai went to a nearby clinic, Castlemore Health Centre,¹⁶ the following day, April 22, 2008, as she was experiencing a great deal of pain, particularly in her neck and low back. She also complained of headaches (without nausea). At that first attendance, Dr. Cheema noted that Mrs. Anthonipillai looked well and had a full range of motion in her neck, although pain with turning to the right. He also noted a full range of motion in the back. He assessed that she had sustained a neck strain and prescribed ibuprofen and physiotherapy. Mrs. Anthonipillai also maintains that she injured her right knee and right shoulder in the accident, although these complaints are not noted in the initial visits.

Mrs. Anthonipillai had been involved in two prior motor vehicle accidents, in the 3 or 4 years before this accident, and suffered similar symptoms, but she maintained that her symptoms had resolved on their own without intervention. She denied being symptomatic at the time of this accident.

Mrs. Anthonipillai admitted that she had suffered migraines pre-accident, but they had improved to the point where she no longer had to take medication in the 2 years pre-accident. I note, however, that headaches appear to have been enough of an issue that, in February 2008, Mrs. Anthonipillai attended at Castlemore with a primary complaint of headaches “with emesis” (vomiting). With respect to her right shoulder and low back complaints, I also note that in the same month, February 2008, she attended at her family doctor, Dr. Ibrahim, with complaints of right shoulder pain and low back pain after shovelling snow. She also admits to having high blood pressure pre-accident, but claims that her blood pressure is even higher since the accident.

Early post-accident clinical notes suggest fairly modest complaints and functional impairment. An attendance at Castlemore on April 24, 2008 referred to cold symptoms, but no mention of any accident-related complaints. On April 28, 2008, Dr. Cheema (of Castlemore) noted improved neck pain and that NSAIDS (presumably the ibuprofen) had been stopped. He did note, however, that she was now having difficulty sleeping, that her mind was racing about the accident, and that she had trouble driving.

On May 12, 2008, Dr. Cheema noted that Mrs. Anthonipillai was “coping well with pain” and that she had “no new issues.” A July 22, 2008 note refers to “ongoing pain aches back /neck”, but a July 29, 2008 note refers to “now pain in the back is well controlled.”

On August 23, 2008, Dr. Cheema wrote a letter “to whom it may concern” noting that Mrs. Anthonipillai could not work for three weeks following the accident. “After three weeks, her condition improved and was able to work 4 hours a day for the following three weeks. She is still going to physiotherapy and taking her regular medications. Her prognosis at this time is stable.” Mrs. Anthonipillai testified that this letter was needed for her employer to confirm that she was able to return to full-time duties. She believes she may have lied to Dr. Cheema, however, in order to get him to write the letter.

I also note that attendances at Castlemore, on November 27, 2008, December 2, 2008 and January 14, 2009 make no reference to any accident-related complaints. The January 14, 2009 attendance is particularly noteworthy as it was a “full physical.” Notations include “head & neck exam, unremarkable” and “MSK [musculoskeletal] is equal and unremarkable.” A week later, on January 29, 2009, Mrs. Anthonipillai attended Castlemore after falling on ice and landing on her right arm and elbow. She complained that, 3-4 hours later, she had right side neck and upper arm pain. At the hearing, Mrs. Anthonipillai testified that she recalled the fall on ice and that it was “no big deal.”

On March 9, 2009, Mrs. Anthonipillai was seen by Dr. Oshidari, physiatrist, on behalf of Security National, with respect to her ability to engage in pre-accident employment, caregiving and housekeeping tasks.¹⁷ Dr. Oshidari reported that Mrs. Anthonipillai advised that she had recently had an x-ray of her neck area, but she could not recall the results.

On examination, Dr. Oshidari noted that lateral bending and rotation of the cervical spine was 90% of normal with complaints of discomfort and pain. Informal examination observed more rotation of the cervical spine when lying down on the examination table that demonstrated through formal testing. Right shoulder flexion and abduction was about 90% of normal. Stress to rotator cuff did not produce pain. Impingement syndrome testing did not produce any pain or discomfort. Sitting and lying leg raises did not produce pain.

Dr. Oshidari testified at the hearing. He emphasized that his focus was to look for pathology that, from a physical perspective, would explain Mrs. Anthonipillai’s complaints. He could not find any. He found it to be particularly noteworthy that, although she complained of back pain on range of motion testing, he could find no discomfort with straight leg raises. He described this as very unusual. This observation, combined with neurological testing that was within normal limits, led Dr. Oshidari to conclude that there was no physical pathology in the low back area that would explain Mrs. Anthonipillai’s low back complaints. The right knee examination also failed to reveal any specific abnormality.

Dr. Oshidari concluded that expectation of harm was a major contributing factor in Mrs. Anthonipillai’s reduced range of motion testing. This conclusion was supported by his observation of a more fluent range of motion demonstrated during informal examination. In short, Dr. Oshidari found Mrs. Anthonipillai’s assessment to be completely unremarkable, and he was not able to come to a specific diagnosis. As a result, from a physical point of view, he could not find any specific neuromuscular structural abnormality that would lead him to place any medical restrictions on Mrs. Anthonipillai’s ability to perform her pre-accident caregiving, housekeeping or employment activities.

Notwithstanding concerns raised in the foregoing medical chronology, there is also considerable evidence to support Mrs. Anthonipillai’s claim that she suffered pain affecting function throughout the 2 years for which she is claiming caregiver benefits.

First, I note that Mrs. Anthonipillai attended the Physical Therapy Institute regularly between May 2008 and May 2009¹⁸ for various active and passive therapies for her accident-related complaints. Notes from those attendances refer to ongoing low back, neck, right shoulder and right knee pain. However, Mrs. Anthonipillai found that her treatments at the Physical Therapy Institute were not helping and, in fact, her symptoms were getting worse. This is noted in an insurer’s assessment conducted by Dr. Butt, chiropractor, on December 2, 2008 regarding a further treatment plan proposed by Physical Therapy Institute. Dr. Butt concluded that the proposed treatment was not reasonable and necessary, largely on the basis of Mrs. Anthonipillai’s own report that active and passive treatment to date had not helped with her pain or improved her functionality.

I also note that Castlemore’s records from late January 2009 onward reveal increasing, although still only periodic, references to neck and back pain that is attributed to the accident, and pharmacy records for the two years post-accident confirm that Mrs. Anthonipillai was prescribed several analgesic and anti-inflammatory medications, antidepressants and sleep aids that she does not appear to have been taking pre-accident.

Mrs. Anthonipillai’s ongoing complaints also resulted in investigations through diagnostic imaging. An X-ray of the lumbar spine in May 2009 resulted in a “normal examination,” but an MRI scan of the lumbar spine in October 2009 found, most notably, mild disc bulging and a small annular tear at L4-5, and a small central and right central disc herniation without nerve root compression at L5-S1.

On cross-examination, Dr. Oshidari denied that the MRI results necessarily reflected anything significant. He testified that 30-40% of people who have MRIs of their backs are found to have “issues,” many of which are not symptomatic. In this case, he found it notable that there was no nerve root compression or impingement at L5-S1. As well, L4-5 findings, if symptomatic, would cause radiation which is not present in Mrs. Anthonipillai’s case. As a result, the MRI, which was not available when Dr. Oshidari conducted his assessment, did not affect his opinion.

Mrs. Anthonipillai did not call any evidence to challenge Dr. Oshidari’s interpretation of the MRI results. In fact, a note by Dr. Abidi on July 29, 2010 states “her MRI back has been normal.”

In addition to diagnostic imaging, Mrs. Anthonipillai’s ongoing pain complaints also resulted in investigations by specialists.

Mrs. Anthonipillai saw Dr. Fiati, psychologist, on October 30, 2009. During the assessment, Mrs. Anthonipillai complained of sleep disturbance. She also reported that she felt “tense, worried or nervous, and gets less pleasure in previously enjoyed activities.” She described the interference and negative impact of the accident on her life as “9 out of 10.”

In terms of her overall level of pain, Mrs. Anthonipillai indicated that in the initial weeks following the accident, “her pain level was rated an eight (8) on the scale and at the time of the assessment she indicated that her pain level was variable. It depended on the level of physical activity.” Her energy level at the time of the assessment was rated “between a four (4) and a five (5).” Mrs. Anthonipillai also complained that “she was not able to engage in any of her regular daily activities because of constant pain and weakness” which she rated “between a nine (9) and a ten (10).” Mrs. Anthonipillai “rated her overall enjoyment of life in the three to six weeks prior to the assessment between a zero (0) and a one (1) on the scale meaning she was not finding life at all enjoyable.”

Mrs. Anthonipillai was also assessed as experiencing severe level of anxiety based on her responses on the Beck Anxiety Inventory. Mrs. Anthonipillai was administered the Post Traumatic Stress Disorder Symptom Scale, and the results indicated that “she was experiencing a number of stress symptoms at a high level of frequency.”

Dr. Fiati concluded that “[Mrs. Anthonipillai’s] symptoms described are consistent with adjustment disorder, anxiety with depressive mood and a severe level of post traumatic stress.” Notwithstanding these conclusions and the recommendation for treatment, it appears that Mrs. Anthonipillai declined treatment as “there were issues regarding her scheduling and the challenges of getting to the therapy sessions. The opportunity to participate in the counseling sessions was left open, should she feel the need to do so over the next year.”

It appears that Mrs. Anthonipillai has not seen Dr. Fiati again. Dr. Fiati did not testify at the hearing.

Approaching the two-year mark, on April 10, 2010, Mrs. Anthonipillai was also seen by Toronto Poly Clinic, a pain management assessment centre. The report, prepared for the signature¹⁹ of Dr. Mula, M.D., refers to Mrs. Anthonipillai as having been seen by “our multidisciplinary team,” but the report does not set out who assessed Mrs. Anthonipillai.

The Toronto Poly Clinic report is quite short, and contains very little narrative.

In the report, Mrs. Anthonipillai is noted as complaining of “headaches, neck pain, right shoulder pain, lower back pain, right hip pain, right leg pain, sleep problems, lack of energy, and problems with memory and concentration.” She also reported “limitations on lifting, reaching, bending, prolonged sitting, prolonged standing, and prolonged walking.” However, Mrs. Anthonipillai’s pain is also noted to be “very well relieved with tramadol.”

In addition to Mrs. Anthonipillai’s self-reports, the Toronto Poly Clinic report contains a chart that appears to indicate decreased ROM of cervical and lumbar spine indicated with a “+” sign. Tenderness in C4 through C7 as well L1 through S1 are noted with “++”. With respect to the right shoulder, there appears to be decreased ROM noted with “+”, with increased tenderness of the right suprascapular area also noted with “+”, but there is no tenderness noted of the right shoulder joints. Somewhat surprisingly, it is the left shoulder joints that are noted to have tenderness with “+”. There is no tenderness noted in the knee (right or left).

The Toronto Poly Clinic concluded that Mrs. Anthonipillai suffers from “Chronic pain syndrome post MVA” as well as “Chronic neck plus lower back pain,” and the report sets out a multi-disciplinary plan to address these diagnoses. The proposed plan includes further diagnostic investigations; an increase in medications; nerve block and trigger point injections; and lifestyle “guidance” in the form of diet, exercise and activity adjustment.

It is not clear from the documentary evidence whether the Toronto Poly Clinic report resulted in any follow up investigations or treatment, but Mrs. Anthonipillai testified that she refused to take any injection therapy because of her husband’s negative experience with nerve block injections.

It is not clear whether Mrs. Anthonipillai has been back to Toronto Poly Clinic, and Dr. Mula did not testify at the hearing.

Currently, Mrs. Anthonipillai testified that she continues to suffer from constant neck pain that only got worse after the accident. She also continues to suffer from right shoulder pain. Her back pain has also not improved and keeps her from bending and doing work. She maintains that medications help, but only to a point. She also continues to be depressed, and takes sleep medication. She maintains that her headaches are worse and she blames the accident.

Conclusions regarding injuries and sequelae

Mrs. Anthonipillai did not call any medical witnesses that could assist in better understanding the nature and extent of her accident-related injuries and ongoing sequelae. Still, and notwithstanding the somewhat inconsistent and limited medical records tendered in support of her claims, I was persuaded, on balance, that Mrs. Anthonipillai did suffer some soft tissue injuries that developed into a chronic pain condition with some physical, but largely psychological, etiology.²⁰ While not preventing her from returning to most of her work-related activities within 3 to 6 weeks, I find that her condition likely had some impact on certain aspects of her overall functioning and stamina. I also accept that, after some initial improvement, Mrs. Anthonipillai’s condition did not improve substantially over the two years in dispute and, in some respects, may have worsened.

The issue, however, is not simply whether Mrs. Anthonipillai suffered some accident-related injuries and impairments. In the case of caregiver benefits, she must also establish that these impairments resulted in a substantial inability to engage in the caregiving activities in which she was engaged at the time of the accident (section 13(1) of the Schedule). She must also establish that reasonable and necessary expenses were incurred as a result, and she must provide me with a reasonable basis upon which I can quantify the expenses (section 13(2) of the Schedule).

It is in answer to the specific requirements for establishing entitlement to caregiver benefits that Mrs. Anthonipillai’s case fell short. As noted below, both the medical and lay evidence left me unable to arrive at any clear need for, or quantifiable amount of, assistance that Mrs. Anthonipillai reasonably required to replace the caregiving activities she engaged in pre-accident.

Deficiencies in the medical evidence specific to the caregiver claim

The only medical evidence that Mrs. Anthonipillai advanced that speaks directly to her caregiver claim is the evidence of Dr. Gerald Gayah, chiropractor.

As noted above, Dr. Gayah conducted a functional capacity evaluation of Mrs. Anthonipillai on November 8, 2008, approximately 7 months post-accident. In his report, Dr. Gayah does not set out the specific tasks for which Mrs. Anthonipillai was responsible as a housekeeper or caregiver, other than noting that “[Mrs. Anthonipillai] reported that prior to the accident she is responsible of (sic) taking care of all household tasks. She also took care of her 75-year-old mother-in-law who suffers from Alzheimer.”

Dr. Gayah took Mrs. Anthonipillai’s self-report, conducted some functional testing, and concluded that, while Mrs. Anthonipillai could meet the demands of her sedentary job as a Customs Broker, she did not have the functional ability to meet the medium strength demands of a housekeeper. He did not, however, make any further reference to Mrs. Anthonipillai’s caregiver responsibilities or her ability to carry those out. A generous reading of his report suggests that Dr. Gayah may have subsumed Mrs. Anthonipillai’s responsibilities as a caregiver within his consideration of her responsibilities as a housekeeper. It is not clear. What is clear is that the passage quoted in the preceding paragraph is the only reference to Mrs. Anthonipillai’s mother-in-law contained in his report.

As noted earlier in these reasons on the preliminary issue, Dr. Gayah also provided the only OCF-3 (Disability Certificate) in support of Mrs. Anthonipillai’s claim for caregiver benefits. As also noted, the OCF-3 is dated October 17, 2011, some 3½ years post-accident and approximately 60 days after the pre-hearing.

Dr. Gayah’s OCF-3 raises several questions. First, I note that Dr. Gayah found Mrs. Anthonipillai to be suffering from a complete inability to carry on a normal life, although the OCF-3 also states that she can and, in fact, had returned to full-time employment duties. The OCF-3 also indicates that Mrs. Anthonipillai suffers from a substantial inability to engage in primary caregiving activities, but, at the time the OCF-3 was completed, Mrs. Anthonipillai’s mother-in-law had been dead for approximately six months. Was Dr. Gayah’s OCF-3 intended to provide a retrospective opinion for the period in dispute? ²¹ Dr. Gayah also opines that the anticipated duration of the noted disabilities is 9-12 weeks. Given that Dr. Gayah found Mrs. Anthonipillai to be suffering from a complete inability to carry on a normal life 3½ years post-accident, it is difficult to understand why he anticipated that her disabilities would likely resolve in 9-12 weeks. Dr. Gayah also indicates that anxiety, depression and severe headaches are conditions that developed after the accident that could affect Mrs. Anthonipillai’s disability. It is not clear what Dr. Gayah knew of Mrs. Anthonipillai’s pre-accident history with migraines.

Although Dr. Gayah attended just before lunch on the second day of the hearing to give evidence that may have answered some of the above-noted questions, I was advised by Mrs. Anthonipillai’s counsel right after lunch that Dr. Gayah was not feeling well and would not be testifying. I also received a clear statement that it would not be necessary to try to accommodate Dr. Gayah on another day. Although I have not drawn an adverse inference, it is difficult to ignore the sudden departure of Mrs. Anthonipillai’s only medical witness.

Unlike Mrs. Anthonipillai, Security National called two medical witnesses. I have already discussed Dr. Oshidari’s evidence in my review of Mrs. Anthonipillai’s injuries and sequelae. The other witness called by Security National was Avi Kaplun, occupational therapist, who conducted an in-home assessment on February 20, 2009 that looked specifically at whether Mrs. Anthonipillai sustained a substantial inability to engage in her pre-accident caregiving and housekeeping tasks.

Consistent with earlier reports,²² Mr. Kaplun’s history notes that Mrs. Anthonipillai shared pre-accident caregiving responsibilities for her mother-in-law with her husband and that, at some point prior to this report, home care services had begun providing assistance with bathing. The report also notes that Mrs. Anthonipillai would assist her mother-in-law with dressing, cue her to eat and serve her meals. She would also launder extra sheets due to incontinence. Mr. Kaplun also noted that Mrs. Anthonipillai would not be required to lift her mother-in-law. Both Mrs. Anthonipillai and her husband were noted as sharing supervision, which was required 24 hours per day.

As for help with caregiving post-accident, there is no mention in Mr. Kaplun’s report of either daughter providing assistance. The only reference is to Mrs. Anthonipillai’s husband as having “attempted to perform the above duties.” Mr. Kaplun testified that, had Mrs. Anthonipillai mentioned that her daughters were helping out with caregiving, he would have noted it in his report.²³

Deficiencies in other evidence specific to the caregiver claim

Mrs. Anthonipillai testified that she was 99% responsible for her mother-in-law’s care pre-accident. She would cook for her, and leave food for her when she went to work. She would dress her and take her for walks. She would also change her diaper and change sheets, both necessitated by her mother-in-law’s incontinence.

Mrs. Anthonipillai also testified that she would bathe her mother-in-law, but admitted on cross-examination that someone eventually came “one or two days a week” to bathe her mother-in-law, but she could not remember when this began.²⁴

As for her husband, Mrs. Anthonipillai testified that he would warm up food for his mother and give her medication. On cross-examination, Mrs. Anthonipillai also admitted that her husband had been off work for quite a while before the accident (since sometime in 2007 due to a work-related injury to his left shoulder, back and knee), and he would supervise his mother for 8-9 hours a day while Mrs. Anthonipillai was at work. She conceded that, pre-accident, he was the only one at home all day and, in addition to feeding her and giving her medication, he would sometimes take her to the washroom.

Mrs. Anthonipillai’s husband did not testify at the hearing. I draw no adverse inference, but given the significant time he spent at home with his mother both pre- and post-accident, his evidence may have been helpful in better understanding the nature and extent of his and his wife’s respective shares of responsibility for his mother’s care. In any event, I do not accept Mrs. Anthonipillai’s evidence that she was 99% responsible for her mother-in-law’s care. I find that her husband’s contribution was not insignificant, and the surgery he underwent just before the accident likely contributed to the need for any caregiving assistance provided post-accident.

Mrs. Anthonipillai testified that her daughters, Sharel and Merryl, took over all responsibility for her mother-in-law’s care post-accident. Mrs. Anthonipillai did not directly address Mr. Kaplun’s report that made no reference to her daughters helping out.

An issue at the hearing (that first arose much earlier during the claim’s handling process) was the mother-in-law’s medical condition and related functional limitations for the two years in dispute, as well as the nature, extent and timing of government services being received to assist with her care.

In an OCF-9 (Explanation of Benefits) dated May 22, 2009, Security National had requested a medical note regarding the mother-in-law’s condition, and information regarding any government assistance. This request for information went unanswered for 2½ years. In follow-up to production requests confirmed at the pre-hearing in August 2011, Mrs. Anthonipillai finally provided two documents pertaining to her mother-in-law in November 2011 and a further two documents in January 2012.

One document provided in November 2011 was an Annual Medical Information Update from the Alzheimer Society of Peel dated January 11, 2009.²⁵ This one page document lists several conditions: cataracts, degenerative C spine, hypertension, dementia (vascular), osteoarthritis (shoulders and neck) osteoporosis, and depression. Other than this bare list, there is no information regarding the severity or duration of any of these various conditions or their impact on the mother-in-law’s physical or cognitive functioning. The section of the form entitled “Recent Changes in Care Levels” is blank.

The other document provided in November 2011 is a two page Health Report dated July 16, 2010 (prepared outside the two years in dispute). The Health Report states at the top of the form that “The purpose of the form is to provide information about the person who is applying for admission to a Long-Term Care Facility.”²⁶ The form was completed by the mother-in-law’s family doctor, Dr. Chris Chiang, and, like the form provided to Alzheimer Society Peel, lists several medical conditions: Alzheimer’s 2007, hypertension, depression, osteoporosis, GERD, and bilateral shoulder OA/ tenderness. Again, this short form does not provide much other useful information that would assist in understanding the severity of any of these conditions or their impact on the mother-in-law’s physical or cognitive functioning. Under the heading “Prognosis,” Dr. Chiang has checked off “unknown.” The sections on “Other special needs” and “Current treatments required” are blank.

The two documents provided in January 2012 are both letters dated November 1, 2011 from the Brampton Day Program operated by the Alzheimer Society of Peel. Each letter is stated to be “for income tax purposes only” and each attaches a “summary of accommodation charges” for the 2009 and 2010 taxation years, respectively. The body of each letter provides that “The Centre is designed to stimulate the participant’s functional abilities in a supportive environment, provide care and assistance with activities of daily living and provide respite for caregivers.” The letters from the Brampton Day Program were not addressed in Mrs. Anthonipillai’s evidence and it is not clear whether the mother-in-law actually attended a day program, as the letters suggest, or whether the summary of charges simply refers to the share that Mrs. Anthonipillai and her husband had to pay for government services in their home.

Apart from the unexplained delay of 2½ years, the difficulty with the documents eventually provided by Mrs. Anthonipillai is that, even supplemented by her oral testimony, they left an unclear picture of her mother-in-law’s level of function, as well as the nature, extent and timing of care being received through government programs. As a result, I was unable to reach any firm conclusions on these matters from her evidence.

Mrs. Anthonipillai’s daughters, Sharel and Merryl, both testified at the hearing. They both gave substantially similar evidence that was notably brief and lacking in much detail. The cross-examinations brought out more detail, but still left questions unanswered and highlighted inconsistencies in the evidence.

Neither daughter was living at home at the time of the accident. Sharel was living in Schomberg where she stayed with her uncle and helped care for her maternal grandmother. She was also enrolled at the University of Toronto. Merryl was living in Hamilton where she was enrolled at McMaster University. In order to help out, Sharel moved back into her parents’ home Monday through Friday, while Merryl came home Friday nights and stayed through the weekend. They each returned to their respective residences when the other arrived. In this way, they split the caregiving. According to both daughters, they began helping with their paternal grandmother’s care shortly following the accident. The services provided included feeding, changing diapers, bathing, taking for walks, and general supervision.²⁷

On its face, this seems like a reasonable account, but the account became less clear and reliable during cross-examination.

The expense forms attached to each OCF-6 (Application for Expenses) submitted in support of the caregiving claims were prepared and signed by Sharel only. She acknowledged her handwriting and signature. These forms do not refer to Merryl at all. The forms consistently repeat a claim for caregiving assistance based on 5 hours per day, 6 days per week, Monday through Saturday. No claim is made for Sundays.

The forms also contain a generic list of services, with several items underlined and several not.²⁸ Sharel underlined feeding, bathing/showering, dressing/undressing, serving food, hand washing clothing, and general supervision. References to changing diapers and taking walks are listed in the template, or at least could have been modified to apply, but they are not underlined.

Sharel was cross-examined on why the forms for her services advance a claim for Saturdays, if Merryl was responsible for caregiving and housekeeping on the weekends. Rather than suggesting that the forms may have been filled out incorrectly, Sharel changed her story to fit the forms. She suggested that perhaps she “did the work before I left” or “maybe I did not go home that weekend.” These answers were not very helpful, as they did not explain why the forms have Sharel claiming for 5 hours every Saturday.

Since Merryl was not the author of the expense forms attached to the OCF-6s,²⁹ she was limited in what she could say about them. She did suggest that perhaps she wasn’t listed on them because she was only providing services on weekends. When asked why the forms would indicate that Sharel provided services on Saturdays and no one on Sundays, Merryl responded that Sharel had a car while she didn’t have one. I did not find this answer responsive. When challenged further about why Sharel would be claiming for Saturdays, Merryl also tried to make her answers fit the forms by responding that perhaps some Saturdays she had other obligations such as doctor’s appointment or school work to do. In the end, she responded “I don’t remember, but we made it work.”

Neither daughter explained why only 5 hours per day was claimed for caregiving if, as claimed by Mrs. Anthonipillai, their grandmother required 24 hour supervision that neither their mother nor father could provide.

As for Mr. Kaplun’s report that states that Mrs. Anthonipillai identified her daughters as only helping out with some floor care and bathroom cleaning, Sharel suggested that perhaps her mother was listing the things they sometimes helped out with before the accident. Sharel also suggested that perhaps her mother wasn’t always aware of everything they had done. Merryl suggested that her mother could be “picky,” so perhaps she didn’t consider a job “done,” if not completed to her satisfaction.

Both daughters denied that their father played a significant role in their grandmother’s care, but neither could explain who took care of their grandmother while their mother was at work.

Both daughters also acknowledged that government assistance was provided, but, like their mother, could not state when those services were provided. Sharel estimated that it was in late 2008 that her grandmother’s condition began to noticeably deteriorate.

Another issue at the hearing (that also first arose much earlier during the claim’s handling process) relates to Sharel’s place of residence. The expense forms list Sharel’s address as Schomberg, although her parents and grandmother live in Brampton. Not surprisingly, Security National requested clarification of Sharel’s address and residence in its OCF-9 dated May 22, 2009. Security National also advised of its understanding that Sharel was a full-time student at the University of Toronto, so also sought confirmation of Sharel’s school attendance after the accident.

As with the other requests for information made in the May 22, 2009 OCF-9 (i.e. information regarding the mother-in-law’s condition, and any government assistance being received to help care for her), this request also went unanswered for 2½ years.

Sharel thinks she may have first been asked by her mother’s lawyers sometime in 2010 to provide her school schedule. She testified that she understood that the information was being requested in connection with her mother’s claim, but she thought “if you want it, go get it.” She understood the lawyers could get it themselves.

After repeated requests for her school records following the pre-hearing in August 2011, Sharel did provide an email dated November 3, 2011 stating that “During [2008-2010] I was attending University of Toronto and living with my uncle in Schomberg. During the week I was commuting to and from school by living temporarily at [her parents’ address] in Brampton. My classes varied from day to day, which some days I had an early finish and others I had a late start and sometimes large gaps between classes.”³⁰ [emphasis is mine]

Security National was not satisfied with the email as a sufficient response to its production request, and Sharel’s school records eventually became the subject of a third-party production motion on June 15, 2012. Security National’s motion was denied, primarily on the basis that the records did not pertain to the applicant, and the witness could be cross-examined at the hearing.³¹

Sharel did not appear on the motion. She acknowledged that she received the motion record, but denied even reading it. She testified that, even though she had to sign for it personally, she thought it was just a summary provided to her by her mother’s law firm and wasn’t something important for her to read. I found this response disingenuous.

Sharel also testified that, at some point, she has signed an authorization to permit her mother’s lawyers to obtain her school records, but later understood that the information was no longer needed. I note that no evidence of an authorization being signed by Sharel was admitted into evidence, and counsel for Mrs. Anthonipillai neither denied nor confirmed receiving an authorization from Sharel.

I found parts of Sharel’s account of events surrounding Security National’s efforts to secure her school records somewhat difficult to follow and difficult to believe. Most importantly, however, her email of November 3, 2011, which is the only document tendered in evidence regarding her residence and schooling between 2008 and 2010, does not accord with the oral evidence she gave at the hearing.

Sharel testified that she was able to provide 5 hours per day of caregiving because she rarely had to attend classes. Most lectures could be downloaded. She only had to go to classes for mid-terms and finals. As noted, Sharel’s email states that she was “commuting to and from school” while living during the week in Brampton. Sharel’s oral evidence was presented as a clarification or supplement to the information in the email, but, in my view, the two accounts are entirely different and inconsistent.

Conclusions regarding the caregiver claim

Inconsistencies and weaknesses in the evidence are not necessarily fatal to an applicant’s claims. Few claims are free of shortcomings in the evidence. Oral evidence from an applicant and her witnesses is frequently sufficient to make up for minor deficiencies in the documentary evidence. In this case, however, the oral evidence of Mrs. Anthonipillai and her daughters raised as many questions as it clarified.

I do not want to suggest that the evidence of Mrs. Anthonipillai and her daughters amounted to intentional fabrication. As they each noted during their evidence, a lot of time has passed since the events in question. That, however, is exactly much of the problem in this case. If there had been a better effort to cooperate with Security National throughout the adjusting process, and provide answers in a timely manner to questions required by Security National to determine Mrs. Anthonipillai’s entitlement to benefits, there would not have been the need to fashion together answers at the hearing based on fading memories.

In any event, and whether it be the result of fading memories or something more, the inconsistencies, unanswered questions and gaps in the evidence rendered it unreliable as a basis for establishing entitlement to caregiver benefits in a quantifiable amount for a quantifiable period.

Apart from questions that remained about the help that Sharel and Merryl provided and when, I was not convinced that I had received a full account of the caregiving provided by the husband both pre- and post-accident. I also found the evidence regarding the mother-in-law’s condition, her functional limitations, and the government assistance received to help with her care, fell short and raised its own questions. It was also troubling that Mrs. Anthonipillai may not have mentioned to Dr. Gayah that her mother-in-law was dead when he completed the only OCF-3 prepared in support of her caregiving claim or that the issue of caregiving may not have come up at all. It did not help that Dr. Gayah suddenly left the hearing, denying the opportunity for answers to questions arising out of the OCF-3 and its completion.

For all of the above reasons, I find that Mrs. Anthonipillai has not met her onus of establishing entitlement to caregiver benefits.

As a final point, I wish to note that, while it was not specifically assessed on its merits,

Mrs. Anthonipillai’s claim for housekeeping and home maintenance benefits suffered from substantially similar shortcomings in the evidence.

EXPENSES:

The issue of expenses was not addressed at the hearing. Although Mrs. Anthonipillai was partly successful on the preliminary issue, Security National was entirely successful in the result. With these points in mind, the parties are encouraged to try to arrive at a resolution on expenses between themselves. In the event they are unable to do so, either party may request a determination of expenses pursuant to sections 75 to 79 of the Dispute Resolution Practice Code.

July 12, 2013

Robert Bujold Arbitrator

Date