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

Neutral Citation: 2014 ONFSCDRS 74

FSCO A13-002630

BETWEEN:

COLIN VELEY

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

REASONS FOR DECISION

Before: Pamila Ahlfeld

Heard: February 10, 11, 12, and 13, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Written submission received from the Applicant on: February 26 and March 10, 2014

Appearances: Jeffrey Neinstein and Sebastian Gallagher for Mr. Veley

Marie Sydney for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Colin Veley, was injured in a motor vehicle accident on December 28, 2010. He applied for and received statutory accident benefits from Motor Vehicle Accident Claims Fund (“the Fund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Veley 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:

1. Is the Applicant entitled to attendant care benefits during the following periods:

a. From December 28, 2010 to June 30, 2011

b. From June 30, 2011 to present.

2. Are attendant care benefits payable retroactively?

3. Is the Fund required to pay attendant care benefits during the Applicant’s in-patient stays at Campbellford Memorial Hospital, Kingston General Hospital, Sunnybrook Hospitals and Lyndhurst and/or Toronto Rehab rehabilitation centres?

4. Is the Fund entitled to deduct amounts received by the Applicant from AXA for attendant care and if so how much?

5. Is the Applicant entitled to a Special Award?

6. Is the Applicant entitled to interest?

7. Is either party entitled to expenses of the hearing?

Result:

1a. The Applicant is not entitled to attendant care benefits from December 28, 2010 to June 30, 2011;

b. The Applicant is entitled to attendant care benefits from June 2011 to December 2012, in the amount of $9,432.25 less monthly amounts received from AXA for attendant care benefits up to a maximum payable amount of $6,000.00.

2. Retroactive attendant care benefits were not relevant issues in this arbitration.

3. The Fund is not required to pay any attendant care benefits during the Applicant’s in-patient stays at Campbellford, Kingston, and Sunnybrook hospitals and Lyndhurst and/or Toronto Rehab rehabilitation centres.

4. The Fund is entitled to deduct the full monthly attendant care amounts received by the Applicant from AXA for attendant care.

5. The Applicant is not entitled to a Special Award.

6. The Applicant is not entitled to interest.

7. The parties will attempt to resolve the issue of expenses between themselves.

BACKGROUND

This is a case about an Applicant who had two serious motor vehicle accidents; the first of which is the subject of this arbitration. On May 31, 2013, the Applicant was deemed to have a catastrophic impairment resulting from both the first and second accidents with both a physical impairment rating of 58% along with a complete loss of use of his left arm.

There are complicating factors in this case because the Applicant failed to report his first accident to the Fund until January 2012 which is seven months after his second accident. There is no dispute that at the time of the Applicant’s disclosure to the Fund regarding his first accident, he was receiving benefits from AXA for the second accident, including attendant care expenses. The Applicant subsequently settled his claim with AXA in December 2012.²

The issues in this case focus on the Applicant’s entitlement to attendant care benefits from his first accident and the quantum of those benefits if he is found to be entitled to receive them. Further as will be discussed below, it is the Applicant’s position that he should be exempt from proving that expenses for attendant care benefits were incurred pursuant to section 3(8) of the Schedule. Additionally, there is an issue with respect to the entitlement of receiving attendant care benefits from the Fund during the period of time that the Applicant was receiving the same benefits from AXA. Lastly, the Applicant is claiming that he is entitled to attendant care benefits during the periods he was hospitalized and/or in a rehabilitation facility.

EVIDENCE AND ANALYSIS

Is the Applicant entitled to Attendant Care Benefits from December 28, 2010 through to June 30, 2011 (the period between the first accident and the second accident)?

The Applicant has not been paid any money by the Fund for attendant care benefits for this period of time. It is the Fund’s position that the Applicant has not provided sufficient and credible information regarding service care providers and therefore the Applicant has not met his burden of demonstrating that expenses for attendant care have been incurred for the period between the first and second accidents.

Agreed Facts

The Applicant was in a serious motor vehicle accident on December 28, 2010. Following the accident, the Applicant was taken to Campbellford Memorial Hospital (Campbellford Memorial) and admitted for a laceration of the left elbow neurovascular injury. He was subsequently transferred to Kingston General Hospital (Kingston General) where four surgeries were performed for repair of the left brachial artery, fasciotomy, carpal tunnel release and repair of the left median nerve. He had episodes of agitation, self-extubated, was given sedatives and had a tracheostomy which was removed after two weeks.

The Applicant was discharged from Kingston General on February 4, 2011 with his left arm in a splint. He was advised not to move his left arm. He was referred to see a hand specialist in Kingston but as he did not have transportation to go to Kingston, he did not see any specialists or any other treatment or rehabilitation practitioners.

On January 13, 2012, the Applicant sent to the Fund an Application for Accident Benefits for the first accident. On February 1, 2012, the Applicant provided the Fund with a Disability Certificate. The Applicant provided the Fund with a statement on February 10, 2012. The statement was given to an adjuster employed by Claimspro, an adjusting firm retained by the Fund. The statement disclosed that a second accident had occurred on June 30, 2011 and that AXA Insurance was providing accident benefits to the Applicant with respect to the second accident.

In the second accident, the Applicant sustained fractures to his left wrist, dislocated his left pinky finger, sustained a fractured sternum, lost a tooth and sustained T4 paraplegia. The Applicant was taken to Campbellford Memorial and transferred the next day to Sunnybrook Health Sciences Centre (Sunnybrook) in Toronto. He underwent surgeries on his left finger and his spine and his left wrist was splinted. The Applicant was discharged from Sunnybrook and sent to Toronto Rehabilitation Institute/ Lyndhurst Centre (Lyndhurst). He was discharged from that facility on October 10, 2011.

The Applicant applied for accident benefits from AXA Insurance (AXA) following the second accident. AXA paid accident benefits to the Applicant including attendant care benefits in the amount of $6,000.00 per month upon his discharge from Lyndhurst.

The Applicant’s Position

The Applicant claims that he is entitled to attendant care benefits from the Fund in the amount of $6,000.00 per month from December 28, 2010 to June 30, 2011. At the end of the hearing, his counsel submitted that the Applicant was in the hospital, willing to accept $1,888.84 per month as outlined on Melanie Robbins’ Form 1 (an Occupational Therapist) for that period of time he was in the hospital from December 28, 2010 to February 28, 2011.³ Otherwise, the Applicant relies on a Form 1 completed by Lauren Okell (an Occupational Therapist) that is retroactive and covers the entire above period prior to the second accident. The Form 1, dated April 15, 2012, was received by the Fund on June 4, 2012. It indicates that the Applicant was entitled to $8,311.23 for this time period. ⁴

The Applicant testified that after being discharged from Kingston General in February 2011, he moved in temporarily with his mother. He stated that his mother has the mentality of a twelve year old and could not assist him much. He stated that some friends would sometimes help him make the bed and keep the place clean. He testified that a neighbour and daughter drove him to the hospital and a neighbour down the road helped him pick up medications.

In the Applicant’s statement dated February 10, 2012,⁵ he told the adjuster the following:

After discharge, I was sent home. I couldn’t do anything I did before the accident. I couldn’t ride bikes, give up working. My mother had to help me. She cooked for me. I could pull my pants up and have a bath by myself. I couldn’t have a shower…⁶ [sic]

The Applicant did not submit any invoices from the friends or relatives who assisted him between the December 28, 2010 accident and his second accident. In fact, the Applicant had difficulty remembering the names of the people who assisted him and what services they provided with respect to his attendant care needs.

It is the Applicant’s position that he should not be required to provide proof that attendant care services were incurred as required by section 3(7)(e) of the Schedule, which provides:

(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

Rather, the Applicant relies on section 3(8) of the Schedule which provides:

If in a dispute to which sections 279 to 283 of the Act apply, a Court or arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

Should the Applicant be exempt from providing evidence that attendant care expenses were incurred pursuant to section 3(8) of the Schedule?

It is the Applicant’s position that section 3(8) of the Schedule empowers Arbitrators to waive the incurred provisions under certain circumstances. The Applicant argues that this section was designed for the most “vulnerable, disadvantaged and disabled people of Ontario.” The Applicant asks that I be guided by the Report on the Five Year Review of Automobile Insurance, March 31, 2009.⁷ This report was prepared after consultations with stakeholders and provided recommendations to the Superintendent of Financial Services who would report back to the Minister with recommendations to improve the effectiveness and administration of Part VI of the Act and the Regulations.⁸ The Applicant asked that I be specifically guided by recommendations 23 to 25 of this report which deal with attendant care benefits and which have, for all intents and purposes been incorporated into the Schedule.

Attendant Care benefits are discussed in section 5.4 of the Report.⁹ The submission from the Insurance Bureau of Canada indicated that the attendant care benefit has become problematic from overutilization. It recognizes that attendant care benefits were initially introduced to allow persons who have been seriously injured to remain in their homes rather than an institution. A Form 1 was adapted to determine the quantum of benefits. One of the recommendations was that completion of the Form 1 be limited to persons who have been trained in its use such as occupational therapists and nurses.

The most relevant portion of the recommendation upon which the Applicant relies is with respect to incurred expenses. Recommendation 25 of the Report states:

The attendant care benefit should continue to compensate claimants for incurred expenses. However, to enhance consumer protection and transparency, the SABS should clarify that where an arbitrator has found that the insurer has been unreasonable in denying the attendant care benefit, payments should be made even if no expense has been incurred.¹⁰

The Applicant argued that the Fund was advised that he required attendant care benefits from his first accident as early as January 2012. The Applicant argued that it was evident in his own statement to the adjuster on February 10, 2012 that his mother was assisting him. Yet it was argued that the Fund did not approve an assessment of attendant care needs back in February 2012 nor proactively arrange for an attendant care assessment until a year or some 18 months later.

Given that the Applicant lost the use of his upper left arm in the first accident and given the subsequent catastrophic designation for this impairment in May 2013, the Applicant submitted that the Fund ought to have known that the Applicant was in need of attendant care benefits, especially after the retroactive Form 1 that he had completed on his behalf was submitted to the Fund in June 2012.¹¹

Analysis

I cannot agree with the Applicant’s position. I find the Fund’s interpretation of section 3(8) to be more persuasive. I agree with counsel for the Fund that section 3(8) of the Schedule deals with conduct of the insurer. It is not meant to waive the requirements of section 3(7) for disadvantaged individuals unless it can be demonstrated that an insurer, knowing that a person is impecunious and cannot afford the attendant care services in the Form 1, unreasonably denied or withheld the benefit. That is not the case here.

The parties have provided a significant amount of correspondence between them from the time that the Applicant applied for benefits up until the present time.¹² I am not persuaded that one can glean from the correspondence that the Applicant had been receiving ongoing attendant care assistance or that he could not get the assistance he required because he could not afford to do so.

The letter from Claimspro of February 22, 2012 denied payment of a treatment and assessment plan completed by Galit Liffshiz of Galit Liffshiz & Associates.¹³ The reason provided was that the Applicant’s signed statement indicated that no attendant care expenses had been incurred between the first and second accidents. After the Applicant took it upon himself to get this assessment which included a retroactive Form 1,¹⁴ the Fund did not deny the benefit but rather asked for additional information with respect to incurred expenses.¹⁵ Instead of providing that information, the Applicant’s counsel sent a letter to the adjuster four months later indicating that the Applicant was receiving attendant care services from health care professionals for his second accident that also relate to injuries sustained in the first accident.¹⁶

On June 17, 2013, a letter from the Fund’s counsel advised the Applicant that the Fund had not received any expense receipts from the Applicant.¹⁷ In addition, the Applicant was advised that the Fund was still awaiting details of the settlement with AXA Insurance so as to avoid double recovery.

The Fund arranged for an attendant care needs assessment on June 21, 2013 by OT Melanie Robbins.¹⁸ Two Form 1’s were submitted to the Fund; one retroactive for the first accident and one retroactive for the second accident.¹⁹ Pursuant to the Form 1 from December 28, 2010 to February 28, 2011, Ms. Robbins found the Applicant’s attendant care needs to amount to $1,888.64; and from February 28, 2011 to June 30, 2011, his attendant needs to amount to $1,193.96.²⁰ The Applicant was advised of these findings on July 22, 2013 and asked to provide expenses pursuant to section 3(7)(e) of the Schedule.

The Applicant did finally send in an Expense Claim Form (OCF-6) on August 26, 2013.²¹ He gave the Fund the name of two individuals who had provided services between December 28, 2010 and July 28, 2013. The OCF-6 indicated expenses for attendant care in the amount of $237,133.57. No breakdown, invoices or other details were provided.

In an Explanation of Benefits (OCF-9) dated September 6, 2013, the Fund advised the Applicant again that pursuant to Melanie Robbins assessment and Form 1, he was entitled to attendant care benefits but he was still subject to providing information regarding his expenses.²² In a letter dated September 16, 2013, a letter was sent by the Fund’s counsel to the Applicant’s counsel once again requesting details be provided regarding attendant care expenses.²³

The Applicant’s counsel wrote to the Fund’s counsel on December 20, 2013 and provided the names of five individuals with their telephone numbers who provided attendant care services to the Applicant.²⁴

Ms. Fraser, the adjuster for the Fund testified that she attempted to contact the people listed both from the Applicant’s correspondence of August 27, 2013 and December 20, 2013. She testified that she left messages with three of the individuals; one was a wrong number; and she was only able to contact one person on the list. She stated that the person with whom she did speak told her that he was a neighbour who helped the Applicant with lawn mowing and snow shoveling. She testified that he told her that he had never been in the house.

Not one attendant care provider for this period of time testified at the hearing. Nor did the Applicant submit any affidavits or letters from the people who might have assisted him.

In my view, the Fund’s conduct with respect to attendant care benefits in the period prior to the second accident was reasonable. As argued by the Fund’s counsel, the Fund had no notice of the accident until over one year after the accident occurred. Once they got notice, they took a statement from the Applicant which did not seem to indicate that the Applicant was in need of ongoing attendant care services from the first accident. The Applicant did not advise the Fund that he needed attendant care benefits but could not afford them. The Applicant did not advise the Fund of the names of individuals who were providing attendant care services during this period until 2013 and he did not provide any statements or receipts from these individuals whom he claims provided services for him. In addition, the Applicant was receiving attendant care benefits from AXA Insurance when he informed the Fund of his first accident and according to the testimony of the Fund’s adjuster; she believed his needs at that time were being met.

I do not find that the Fund unreasonably withheld or delayed payments in this case given that particulars regarding the attendant care benefits were not forthcoming from the Applicant. In my view, the Fund has not denied attendant care benefits. I am persuaded on a balance of probabilities given all of the testimony in this case that the Fund has merely been attempting to elicit information from the Applicant in order to reasonably adjust the file.

It is my view that the Applicant cannot benefit from a windfall. His actions must demonstrate on a balance of probabilities that he has reasonably attempted to provide information with respect to his service providers notwithstanding the Form 1. It would have been an entirely different situation if the Applicant informed the Fund of who was attending to his needs and, more significantly, that he was in a position whereby he could not afford to pay for those services outlined on the Form 1. As indicated above, he did not provide this information until the middle of 2013 which I find to be unreasonable.

Conclusion

Given that I find the Applicant has not provided sufficient information with respect to attendant care services that were provided and incurred for this time period, even to the present date, and given that I do not find the Fund acted unreasonably by withholding or delaying payments, I find that the Applicant is not exempt from providing evidence that attendant care expenses were incurred pursuant to section 3(8) of the Schedule. I further find that the Applicant is not entitled to attendant care benefits from December 28, 2010 until June 30, 2011.

Is the Applicant entitled to Attendant Care Benefits from June 30, 2011 to present and ongoing?

The Applicant claims that he is entitled to attendant care benefits in the amount of $6,000.00 per month during this period except for, as indicated in the previous section, the time he spent in hospital and rehabilitation after the second accident. During his time in hospital and rehabilitation, the Applicant is willing to accept the amounts specified by Melanie Robbins in her Form 1 covering this period, in the amount of $1,193.96.

There is no disputing that the Applicant’s life changed drastically after the second accident on June 30, 2011. The Applicant became a paraplegic and he currently lives alone in a 5-bedroom bungalow. He testified that he was provided with health care workers by AXA Insurance for his attendant care needs after the second accident. He testified that he was receiving $6,000.00 per month from AXA up until a settlement, which was not disclosed to the Fund but “was resolved for policy limits, with reasonable contingencies and deductions.”²⁵

The Applicant testified that he has not had use of his left arm since the December 28, 2010 accident. According to Dr. S. Krajden’s report of May 30, 2012,²⁶ the Applicant sustained near amputation of the left arm with transection of the brachial artery, median nerve and multiple flexor tendons in the December accident. ²⁷ This has resulted in a diagnosis of Volkmann’s ischemic contracture which is decreased power and excursion of the flexor tendons musculature within the forearm as well as the intrinsic muscles within the hand. He stated that the muscle repairs done are intact but the nerve function has not recovered.²⁸

The Applicant testified that he has great difficulty transferring from his wheelchair to his bed because of the total dysfunction of his left arm, and, because of this inability, he requires ongoing assistance. He further testified that while he has some nursing and personal support worker (PSW) assistance, it is not around-the-clock care and thus he becomes chair-bound without the ability to adjust and move. Consequently, the Applicant testified that he has developed numerous severe pressure sores on his back and legs. He stated that he does not have the funds to finance ongoing full-time assistance.

The Applicant’s nurse, Jennifer Camenzuli, testified at the hearing. She stated that she organizes the Applicant’s nursing and PSW care. She also testified that the Applicant’s pressure sores are very severe and she is concerned about him. She testified that the pressure sores are a direct result of the Applicant’s inability to safely transfer from his wheelchair without assistance. She testified that the Applicant requires 24-hour care. In particular at the present time, the Applicant requires two wound care sessions per day which could take 3 to 4 hours a day. At present, he is only getting wound care once a day by a registered nurse.

Dr. Krajden also testified that the Applicant’s pressure sores are very serious and require ongoing treatment. Dr. Krajden confirmed that the pressure sores are a result of the Applicant’s inability to use both of his arms and move freely in and out of his wheelchair or even to properly shift his body in order to avoid direct pressure.

Notwithstanding that the Applicant fractured his left wrist in the second motor vehicle accident on June 30, 2011, and he has had surgery for this wrist in 2012, it is evident from Dr. Krajden’s testimony that the injuries sustained in the first accident are pivotal to his inability to live an independent life. Ms. Camenzuli also reiterated a number of times that she fears for the Applicant’s safety both in an emergency and also in everyday situations when he has to transfer from his wheelchair alone. This concern was echoed by the Applicant’s case manager, Laura Bellon, who also testified at the hearing.

Analysis

It is evident from the testimony that the Applicant requires around-the-clock care. There have been 7 Form 1’s submitted into evidence.²⁹ Four of them are retroactive; two are from the motor vehicle accident of June 30, 2011.³⁰ One Form 1 is current and was completed by the Occupational Therapist for the Fund.³¹

The difficulties with the Form 1’s are that there have been attempts to separate the needs between the first accident and the second accident. One can attempt to use the “but for” test, however, in the case at bar, I am of the view that the circumstances are not clear enough to separate which needs are for which accident. For example, “but for” the second accident, the Applicant would be able to live an independent life. However, “but for” the first accident, the Applicant would have the use of both arms and could live an independent life as a paraplegic.

The Applicant was deemed catastrophic from both accidents. As such, I find that he is entitled to receive the benefits that are reasonable and necessary from both of the policies. The issue then becomes whether or not an insured person can rely on two sets of benefits at the same time. In this regard, I rely on the Court of Appeal case of Monks.³²

In Monks, the Applicant had been in three different accidents with two different insurers. ING Insurance (now Intact) argued in that case that it ought not to have to pay benefits to the Applicant until she had exhausted her benefits from a structured settlement with Zurich Insurance, relying on section 60(2) of the Schedule which provides:

Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part VI is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

The Applicant in that case proposed that she would ostensibly set off amounts received for the same benefit and that was accepted by the trial judge.³³ Justice Crook of the Court of Appeal upheld the trial judge with respect to subsection 60(2) of the Schedule. The trial judge in Monks³⁴ found at paragraphs 1112 and 1113 that Mrs. Monks was entitled to “the full ambit of the coverage provided, under the regime for all of her benefits, ” and that both insurers were liable up to the monthly maximums and total maximums under each legislative regime.

Justice Crook of the Court of Appeal found that there is nothing in the language of section 60(2) that would exempt an insurer from not paying accident benefits that were being paid for a separate accident. He found that Mrs. Monks had purchased two separate policies and as such she was afforded coverage under both.³⁵

I agree with and am bound to the above reasoning of the Court of Appeal. When applying that reasoning to the case at bar, I find that the Fund is liable to contribute to the Applicant’s monthly attendant care needs up to any monthly maximums. I find that once entitlement is determined with respect to attendant care needs after the second accident, as per the theory in Monks, the amounts received from the second accident are deductible from the first accident. In other words, if in a given month, the Applicant received $6,000.00 from AXA, in order for the Applicant to receive attendant care benefits from the Fund, he would have to show that he was entitled to more than the $6,000.00 per month and the Fund would have to pay the difference up to its policy limit of $6,000.00.

Are the Form 1’s Reflective of the Applicant’s Needs and if not, what are the Applicant’s Needs?

I have carefully reviewed all of the Form 1’s submitted for this time period. Laura Okell, the OT who provided 2 retroactive Form 1’s and an addendum,³⁶ testified at the hearing. The retroactive Form 1’s submitted by her were for the periods covering December 28, 2010 to February 28, 2011 and from February 28, 2011 to June 30, 2011.³⁷ She did not have a specific Form 1 for after June 30, 2011 but instead submitted an addendum indicating the limit on the Form 1 commencing February 28, 2011 should not have had an end date of June 30, 2011. She stated, “[t]he limit on June 30, 2011 was an oversight and done by mistake as his needs for attendant care from the December 28, 2010 accident has never ceased to change.”³⁸ She went on to state that the Applicant still required 24-hour-a-day care.

Ms. Okell testified that she did not see the Applicant a second time before writing the Addendum. She stated that after the June 30, 2011 accident, the Applicant’s need in the supervisory care section changed from cognitive (emotional) to more physical. She conceded that she did not mention that his needs changed in the report and that was an error.

Although Ms. Okell testified that she separated the two accidents, I found her Form 1 to be inaccurate with respect to the first accident. She had assessed the Applicant’s needs included lacking the capacity to reattach tubing from the trachea and getting in and out of the wheelchair when in fact, those were problems that the Applicant had sustained after the June 30, 2011 injuries.³⁹

Notwithstanding that Ms. Robbins did not testify,⁴⁰ I found her assessment of the Applicant’s needs to be more accurate and consistent with the testimony in all areas except the areas of skin care (wound care)⁴¹ and basic supervisory care.⁴² Her assessment took place in June 2013 and took into consideration the extra nursing care the Applicant was receiving as well as the equipment that was received as a result of the 2011 injuries.⁴³

As Ms. Robbins was not available to testify, she could not be questioned about her allocation of zero minutes per week under Basic Supervisory Care in the Form 1.⁴⁴ I note that in her assessment, Ms. Robbins wrote that there was no assistance required because the Applicant lived in a wheelchair-accessible home and Life Line was to be installed.⁴⁵ However, after hearing testimony from the nurse that provides care to the Applicant and the case manager who spends time with the Applicant as well, I am of the view that this particular area on the Form 1 is incorrect. As I mentioned previously in this decision, I find on a balance of probabilities given the mobility issues and safety concerns with respect to the Applicant being able to get out of the house in an emergency, the Applicant requires 24-hour supervision.

I have added the 24-hour basic supervisory to Ms. Robbins’ Form 1 which totals 10,080 minutes per week. In addition, I have added an additional 60 minutes to the Applicant’s skin care as I am persuaded by the testimony that the Applicant has required at least two hours per day for wound care. Ms. Robbins only accounted for 367.50 minutes per week. The following is the revised Form 1:

Total minutes Total Weekly Total Monthly Hourly Rate Monthly

Per week hours hours Care Benefit

Part 1

765.5

÷ 60 =

12.7583

x 4.3 =

54.8608

x

$13.19

$723.61

Part II

10,210

÷ 60 =

170.1666

x 4.3 =

731.71

x

$10.25

$7500.09

Part III

871.50

÷ 60 =

14.525

x 4.3 =

62.457

x

19.35

$1,208.55

Total $9,432.25

Conclusion

I find therefore that the Applicant’s attendant care needs for the period of June 30, 2011 to present is $9,432.25 per month.

Are Attendant Care Benefits Payable Retroactively?

The Applicant has submitted 3 retroactive Form 1’s and/or reports as follows:

i) Retroactive Attendant Care Report by Lauren Okell;⁴⁶

ii) Retroactive Form 1 for December 28, 2010 to February 2, 2011 from Lauren Okell;⁴⁷

iii) Retroactive Form 1 for February 4, 2011 to June 30, 2011 from Lauren Okell;⁴⁸

iv) An Addendum report for retroactive Form 1 by Lauren Okell.⁴⁹

The Fund has submitted two retroactive Form 1’s completed by Ms. Robbins for the periods of December 28, 2010 to February 28, 2011 and for February 28, 2010 to June 30, 2011.⁵⁰

The first Form 1 was received by the Fund on June 4, 2012.⁵¹ It is the Fund’s position that attendant care benefits are not payable in this case prior to the receipt of the Form 1. In this regard, the Fund relies on the reasoning of Arbitrator Sapin in M.G. and Economical Mutual Insurance Company,⁵² where she states:

Section 39 of the Schedule requires that attendant care needs are assessed using the standard Form 1. Under s. 39(3) of the Schedule, “An insurer may, but is not required to, pay an expense incurred before an assessment of attendant care needs…is submitted to the insurer.”[emphasis added]. I was not persuaded in this case that I have the jurisdiction to require Economical to do what the Schedule has explicitly said it is not required to. My jurisdiction is limited to determining whether the recommended attendant care is reasonable and necessary going forward from the date of each Form 1.

I recognize that section 39(3) of the Schedule is permissive. It does not compel the insurer to pay for attendant care benefits until a Form 1 is received. However not all Form 1’s are completed immediately after an accident; sometimes it can take months before an Applicant can organize an assessment. Insurers will often pay retroactively back to the date of the accident as logic indicates that the injuries are usually worse at the beginning of recovery and the attendant care needs are obvious. In my view, the discretion allocated to insurers is to ensure that they are not subject to Applicants making claims much later in the process when an Applicant has had some recovery and it is difficult to ascertain what the needs actually were.

For the period after the first accident up to the second accident, the retroactivity of the Form 1 has no bearing on the outcome. The main issue for this particular time period is with respect to attendant care services that were provided and incurred and not retroactivity. It is therefore not a relevant issue to this time period in this arbitration. Further, the issue of retroactivity is not relevant to the second time period as once again, the Fund was attempting to get the information regarding attendant care services being provided to the Applicant but with little success. In this regard, I refer to the OCF-9 from Claimspro which indicated that the Applicant is entitled to attendant care benefits but he is required to provide information with respect to his expenses.⁵³

Accordingly, I find that the retroactivity of the Form 1’s for attendant care benefits in this case is not a relevant factor.

Is the Fund entitled to deduct amounts received by the Applicant from AXA Insurance for attendant care and if so how much?

As indicated earlier in this decision, I am guided by the Monks decision. While I find that the Applicant is entitled to collect attendant care benefits from both insurers, the Applicant is not entitled to double recovery.

I requested the particulars of the Applicant’s attendant care benefits post-hearing. I received them on February 26, 2014 and March 10, 2014 respectively. Relevant to this decision are the monthly payments the Applicant received from AXA Insurance between September 17, 2011 and July 11, 2012.⁵⁴ In my view, as per the decision in Monks, the amounts received are to be deducted from the $9,432.25 per month that I have deemed to be the attendant care needs since June 30, 2011. That would mean that for the period of time that AXA was paying the Applicant $6,000.00 per month, the Applicant would be entitled to $3,432.25 per month ($9,432.25 - $6,000.00) payable by the Fund.

According to the Applicant’s counsel’s submission of the Offer of Settlement with AXA attached to his correspondence on February 26, 2014, the Applicant settled the file on or about December 2012. Notwithstanding that the Applicant was awarded monies toward attendant care benefits, I cannot go behind that agreement and make a determination as to what periods of time that money is for. As such, I find that the lump sum settlement awarded to the Applicant from AXA is not deductible from his attendant care payments from the Fund. Accordingly, from December 2012 to present, according to the Form 1 that has now been recalculated, the Applicant is entitled to $6,000.00 per month, which is the maximum monthly amount.

The Applicant testified that he was receiving nursing care at home after he was released from Lyndhurst and that care was paid through AXA. He stated that after he settled the claim with AXA, he has had to pay for the nursing care provided in his home. He stated that given the amount that it costs to have a nurse, and his lack of funds, he has limited nursing care at the present time.

Given that the Applicant’s need for round-the-clock care has been demonstrated and given that the Applicant has demonstrated that but for his lack of funds, these expenses would have been incurred, I find that the Applicant is entitled to the full $6000.00 per month of attendant care notwithstanding that his actual incurred expenses was less. I am of the view that this finding is consistent with the Ontario Court of Appeal decision in Henry v. Gore Mutual Insurance Company.⁵⁵

Conclusion

The Applicant is entitled to attendant care benefits from July 2011 to present less monthly amounts received for attendant care benefits from AXA.

Is the Fund required to pay attendant care benefits during the Applicant’s in-patient stays at Campbellford Memorial, Kingston General, and Sunnybrook hospitals and Lyndhurst and/or Toronto Rehab rehabilitation centres?

The Applicant’s hospitalization at Campbellford and Kingston between December 28, 2010 to June 30, 2011 is not an issue given my finding that the Applicant is not entitled to attendant care benefits for this period of time.

The Applicant’s hospitalization from the second accident at Campbellford Memorial, Sunnybrook, and Lyndhurst/Toronto Rehab between June 30, 2011 to October 10, 2011 is a live issue with respect to attendant care benefits.

It was agreed upon by the parties that the Applicant’s stay in these facilities was covered by OHIP. No evidence was led with respect to any attendant care received by the Applicant outside of the care he received from hospital staff. While I note that a Form 1 was submitted to AXA dated September 23, 2011 indicating emotional support needs in the amount of $4,936.00, no further evidence was adduced in this regard at the hearing.⁵⁶ I therefore attribute little weight to this Form 1 as it relates to the Applicant’s attendant care needs he is claiming from the Fund. Accordingly, I find that the Applicant is not entitled to attendant care benefits from the fund for his time spent in a facility between June 30, 2011 and October 10, 2011.

Is Mr. Veley entitled to interest for the overdue payment of benefits?

The Fund submits that no interest is due. The parties did not make submissions with respect to the percentage of interest that would be due in an award. Section 52(2) of the Schedule states that 1% interest per month compounded monthly is applicable on overdue amounts.

Given the Applicant was not diligent in providing information required to properly adjust this benefit up until the arbitration hearing, I find that the Applicant is not entitled to interest on amounts owing. To award interest to Applicants who do not fulfil their obligations with respect to disclosure would in my view create an injustice to insurers who are attempting to adjust their files.

Accordingly I find that there is no interest due on outstanding amounts owed to the Applicant.

Is MVAC Fund liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Veley?

The Applicant is requesting a special award in that the benefits were not paid out in accordance with the Schedule. My jurisdiction to grant a special award arises from section 282(10) of the Insurance Act as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Applicant relies on his arguments with respect to section 3(8) of the Schedule as detailed earlier in this decision. I will reiterate that the Applicant had not provided the Fund with sufficient evidence of expenses incurred until the arbitration. As found in previous sections of this decision, the Applicant is not entitled to gain from his own neglect in providing sufficient documentation in order for the insurer to adjust the file.

Additionally, I would point out that the issues in this arbitration have been complex and novel and as such, no special award is warranted.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve this issue, failing which they may request an expense hearing before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

May 5, 2014

Pamila Ahlfeld Arbitrator

Date

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

Neutral Citation: 2014 ONFSCDRS 74

FSCO A13-002630

BETWEEN:

COLIN VELEY

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1a) The Applicant is not entitled to attendant care benefits from December 28, 2010 to June 30, 2011;

b) The Applicant is entitled to attendant care benefits from June 2011 to December 2012, in the amount of $9,432.25 less monthly amounts received from AXA for attendant care benefits up to a maximum payable amount of $6,000.00.

2. The Fund is not required to pay any attendant care benefits during the Applicant’s in-patient stays at Campbellford, Kingston, and Sunnybrook hospitals and Lynhurst and/or Toronto Rehab rehabilitation centres.

3. The Fund is entitled to deduct the full monthly attendant care amounts received by the Applicant from AXA for attendant care.

4. The Applicant is not entitled to a Special Award.

5. The Applicant is not entitled to interest.

May 5, 2014

Pamila Ahlfeld Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2See Applicant’s submission of February 26, 2014.
3. 3See Brief 1, Tab 35 (Melanie Robbins’ Form 1 was requested by the Fund).
4. 4See Brief 1, Tab 10 (C)
5. 5See Exhibit A-1, Tab 8.
6. 6Ibid., at Page 4.
7. 7See Exhibit A-1, Tabs 7 and 8.
8. 8See Exhibit A-1, Tab 7, p. 2.
9. 9See Exhibit A-1, Tab 7, pp. 44 – 47.
10. 10See Exhibit A-1, Tab 7, p. 47.
11. 11See footnote 4, supra.
12. 12See Brief 1, Tabs 16 – 50.
13. 13See Brief 1, Tab 20.
14. 14See Brief 1, Tab 10 (D).
15. 15See Brief 1, Tab 23.
16. 16See Brief 1, Tab 25.
17. 17See Brief 1, Tab 34.
18. 18See Brief 1, Tab 11.
19. 19Ibid., Tabs 11(A)(B).
20. 20Ibid., and Tab 35, p. 4.
21. 21See Brief 1, Tab 37.
22. 22See Brief 1, Tab 35, p. 4.
23. 23See Brief 1, Tab 39.
24. 24See Brief 1, Tab 49.
25. 25See Brief 1, Tab 33.
26. 26See Exhibit A-2. Dr. Krajden is the Chief of Plastic Surgery at William Osler Health Centre and an expert witness in cases involving hand trauma, facial injuries and post-traumatic scarring.
27. 27See Exhibit A-2, p. 7.
28. 28Ibid.
29. 29See Brief 1, Tabs 9 – 15.
30. 30See Brief 1, Tab 9.
31. 31See Brief 1, Tab 11 (A).
32. 32Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, O.J. No 1371 (Tab 13)
33. 33Ibid, paragraphs 98 – 101.
34. 34Monks v. ING 2005 CanLII 21689 (ON SC), [2005] O.J. No. 2526 (S.C.J.)
35. 35See footnote 32, supra, paragraphs 105-107
36. 36See Brief 1, Tabs 10(C)(D) and Tab 12(A)
37. 37See Brief 1, Tabs 10(C)(D).
38. 38See Brief 1, Tab 12, p. 2.
39. 39See Brief 1, Tab 10(C), p. 4 and Tab 10(D), p. 4.
40. 40Melanie Robbins was scheduled to testify but due circumstances beyond her control, she was unable to attend.
41. 41See Brief 1, Tab 11(A) p. 5.
42. 42See Brief 1, Tab 11 and 11(A).
43. 43See Brief 1, Tab 11, p. 7.
44. 44See Brief 1, Tab 11(A), p. 3.
45. 45See Brief 1, Tab 11, p. 16.
46. 46See Brief 1, Tab 10(B)
47. 47See Brief 1, Tab 10(C).
48. 48See Brief 1, Tab 10(D).
49. 49See Brief 1, Tab 12(A).
50. 50See Brief 1Tab 11(B).
51. 51See Brief 1, Tab 10.
52. 52(FSCO A09-002443, November 23, 2012) at pp. 25, 26.
53. 53See Brief 1, Tab 35, p. 4.
54. 54See Applicant’s submissions of March 4, 2014, p. 3.
55. 552013 ONCA 480.
56. 56See Brief 1, Tab 9(B).