Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 264

FSCO A16-001215

BETWEEN:

WILLIAM (DAVID) WEAVER

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on August 9, 2017 and by written submissions completed on August 17, 2017

Appearances:

Mr. William (David) Weaver participated

Mr. Vincent Genova, legal counsel and Ms. Sara Nagalingam, legal counsel for Mr. William (David) Weaver

Mr. Geoffrey Keating, legal counsel for Aviva Canada Inc.

Issues:

The Applicant, Mr. William (David) Weaver (“Mr. Weaver”), was injured in a motor vehicle accident on October 11, 2013 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Weaver, through his representative, 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 Mr. Weaver entitled to attendant care benefits in the amount of $3,000.00 per month from October 11, 2013 to January 9, 2014, for services provided by Mr. Peter McLeod?
Is Mr. Weaver entitled to a medical benefit in the amount of $80.00 for an eye examination fee, expense submitted to Aviva on December 11, 2013?
Is Mr. Weaver entitled to payments for damage to clothing, glasses, hearing aids, etc. in the amounts as follows for expenses submitted to Aviva on December 11, 2013: i) $400.00 for sunglasses ii) $75.00 for a pair of jeans iii) $37.00 for one Harley Davidson t-shirt iv) $150.00 for a jacket v) $120.00 for a pair of shoes
Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Weaver?
Is Mr. Weaver entitled to interest for the overdue payments of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

Mr. Weaver is entitled to attendant care benefits at the rate of $1,483.94 per month from October 16, 2013 to November 30, 2013.
Mr. Weaver is entitled to receive to a medical benefit in the amount of $80.00 for an eye examination fee, expense submitted to Aviva on December 11, 2013.
Mr. Weaver is entitled to payment for damage to clothing, glasses, hearing aids etc. in the following amount for an expense submitted to Aviva on December 11, 2013: i) $400.00 for sunglasses

Mr. Weaver is not entitled to payment for damage to clothing, glasses, hearing aids etc. in the following amounts for expenses submitted to Aviva on December 11, 2013: ii) $75.00 for a pair of jeans iii) $37.00 for one Harley Davidson t-shirt iv) $150.00 for a jacket v) $120.00 for a pair of shoes
Mr. Weaver is entitled to a special award in the total amount of $1,137.69 for attendant care benefits, plus applicable interest thereon from May 1, 2016. Mr. Weaver is further entitled to a special award in the amount of $40.00 for the eye exam and $200.00 for the sunglasses, plus applicable interest thereon from December 17, 2013.
Mr. Weaver is entitled to interest for any overdue amounts, in accordance with the Schedule with respect to the benefits I found to be payable.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me within 30 days of the date of this Order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

The Applicant was the front passenger in a GMC pick-up truck involved in a motor vehicle accident (”MVA”) on October 11, 2013. He was returning home from a moose hunting trip which was 15 hours from where he lived. The driver of the vehicle fell asleep at the wheel and the vehicle rolled over, ejecting Mr. Weaver from it. The vehicle then rolled onto Mr. Weaver, pinning him underneath the vehicle for approximately 45 minutes before he was eventually freed. Mr. Weaver was transported by ambulance to Midland Hospital, and then airlifted to Sunnybrook Hospital where he was treated for the following injuries: broken ribs, pelvis, a torn urethra, and lacerations to his wrists and elbows. An Application for Accident Benefits (“OCF-1”) dated October 29, 2013 was submitted to Aviva.²

At the commencement of the Hearing, the parties agreed that several issues noted in the Pre-Hearing letter dated October 31, 2016 were no longer in dispute. The Applicant’s counsel, Mr. Genova, added that attendant care benefits (“ACBs”) were only being claimed up to the date of January 9, 2014.

I requested confirmation from both counsel at the commencement of the Hearing if particulars regarding the claim for the special award had been provided. Mr. Genova stated that the reasons for the special award being claimed would be provided through the evidence at the Hearing. Mr. Keating provided no response.

It was the Applicant’s position that as a result of the injuries sustained from the MVA on October 11, 2013, the Applicant is entitled to ACBs at the rate of $3,000.00 per month from October 11, 2013 to January 9, 2014, for services provided by Mr. Peter McLeod (“Mr. McLeod”). The Applicant further submitted that articles of clothing and eyewear were damaged in the MVA, and these expenses should be paid by the Insurer. As a result of the Insurer’s alleged unreasonable withholding of payment of these benefits, the Applicant was claiming entitlement to a special award.

It is the Insurer’s position that the benefits in dispute for this Arbitration have been properly denied and therefore the benefits in dispute are not payable and the Applicant is not entitled to a special award as Aviva has not unreasonably withheld or delayed payment of the benefits in dispute for this Arbitration.

Examination-in-Chief of Mr. Weaver

Mr. Weaver is currently 55 years old. At the time of the MVA, he was self-employed and was operating a family business, which involved global exporting of dairy cattle. Mr. Weaver stated the only physical limitation he had prior to the MVA was low back pain, for which he saw a chiropractor. Mr. Weaver had an opiate and cocaine addiction in 2001, for which he received treatment at a clinic. He is no longer addicted to those narcotics. Mr. Weaver stated he currently takes prescribed opiates to manage his pain since the MVA. Mr. Weaver said that there were no surgeries available for the injuries which he sustained as a result of the MVA.

Three days following the MVA, Mr. Weaver was released from Sunnybrook Hospital, and he remained catheterized for nearly three weeks. He stated he was living alone on a one-floor home. Mr. Weaver testified that at that point, he was unable to provide his own hygiene, dress himself, transfer himself out of bed, do his own laundry, or cook his own meals. Mr. Weaver stated he was very vulnerable and did not feel safe. Mr. Weaver stated he had short-term memory loss following the MVA, and was taking prescription pain medication, and sometimes more than prescribed in an attempt to relieve his pain.

Mr. Weaver testified that Mr. McLeod, a long-time friend, had recently returned from western Canada to spend some time with his brother, who was in a hospice dying of cancer. His brother then passed away shortly thereafter. Mr. McLeod arrived at Mr. Weaver’s home shortly after Mr. Weaver’s release from hospital, and he agreed to help Mr. Weaver with his attendant care. Mr. Weaver testified that he offered to pay Mr. McLeod for his services. An initial Assessment of Attendant Care Needs (“Form 1”) was done by an Occupational Therapist (“O.T.”), Ms. Louise Wall (“Ms. Wall”), through Healthnet Assessments (“Healthnet”) on October 30, 2013. The assessment was arranged by Aviva. Mr. Weaver stated he and Ms. Wall sat together for approximately 90 minutes and he answered and provided information she sought. Mr. Weaver testified he was not asked by Ms. Wall to demonstrate that he could perform any of the activities which she was assessing. A Form 1 was generated by Ms. Wall, along with her attendant care assessment report dated October 31, 2013 (“October report”). The Form 1 stated Mr. Weaver qualified to receive attendant care services in the amount of $1,483.94 per month.³ Mr. Weaver stated that he asked Ms. Wall how much he could pay Mr. McLeod for the attendant care which he was providing, and Ms. Wall told him he could pay him up to $100.00 per day. Mr. Weaver stated he had not retained legal counsel at the time this initial attendant care assessment was done, and further stated he was not advised by Aviva he could obtain his own assessment of attendant care needs, or prepare a rebuttal to the initial attendant care assessment.

During his testimony, Mr. Weaver stated that from October - December 2013 Mr. McLeod drove Mr. Weaver to his physiotherapy appointments 3 times per week, helped him with picking up groceries, cooking and cleaning. He further stated that after the MVA he would anger easily due to the pain and frustration he experienced, and Mr. McLeod assisted him with managing his outbursts of anger. Mr. Weaver stated that to date, he has paid Mr. McLeod $4,500.00 for the attendant care services which he provided from October 14 - November 30, 2013, as noted on the Expenses Claim Form dated December 3, 2013 (“OCF-6”) provided to Aviva on December 11, 2013.⁴ Mr. Weaver stated the OCF-6 form claimed ACBs for the period from October 14 - November 30, 2013 but only noted an amount of $3,000.00 because this was the maximum amount his prior legal counsel stated he could claim. Mr. Weaver said this OCF-6 was completed by his prior legal representative’s office, and that he had signed the form without reviewing it.

There was a second attendant care assessment (Form 1) done by Ms. Wall on December 16, 2013 (“December report”). Mr. Weaver stated Ms. Wall spent less time conducting this assessment compared to the October 2013 assessment. Mr. Weaver stated he was feeling better and his injuries had improved at the time the second assessment was completed. He stated he was ambulating with a walker, and that he was still receiving some assistance from Mr. McLeod with lifting heavy items. Mr. Weaver stated when he ran out of money he told Mr. McLeod he promised to pay him for the ongoing attendant care when he received payment from Aviva. Mr. Weaver stated he continued to receive attendant care from Mr. McLeod until January 9, 2014. Mr. Weaver disagreed with the conclusion of the second assessment done by Ms. Wall in December 2013, which found his attendant care needs were $0. Mr. Weaver confirmed there was no testing done by Ms. Wall during either of the assessment visits in October and December 2013 to assess how Mr. Weaver managed with cooking, meal-preparation, toiletry, and mobility. Prior to Mr. McLeod leaving in January 2014, Mr. McLeod accompanied Mr. Weaver in a vehicle to drive to Ottawa to pick up a puppy. Mr. Weaver stated that from the MVA until January 9, 2014, Mr. McLeod provided him with psychological and physical support. Mr. McLeod stopped providing any attendant care services after January 9, 2014, as he took a job with Total Refrigeration.

The Applicant’s counsel, Mr. Genova submitted a copy of the correspondence from Mr. Weaver’s prior legal counsel to Aviva dated April 21, 2016,⁵ which enclosed a copy of a letter from Total Refrigeration dated March 7, 2016, which confirmed employment had been available for Mr. McLeod commencing in mid-October 2013, but Mr. McLeod was unavailable to start then as he was providing care for Mr. Weaver. Mr. Genova also provided a copy of an e-mail sent by Mr. Weaver’ prior legal counsel to Aviva dated June 13, 2016⁶ requesting follow-up from Aviva and inquiring when Mr. Weaver would be paid for the attendant care services, so he could pay Mr. McLeod. Mr. Weaver stated Aviva has not paid him any money for attendant care to date.

Mr. Weaver stated that his prescription sunglasses were not recovered in the MVA, and he had to undergo an eye examination costing $80.00⁷ before he could purchase a replacement pair of prescription sunglasses. He purchased new prescription sunglasses in the amount of $400.00.⁸ These are the sunglasses in dispute for this arbitration. Mr. Weaver stated his jeans were cut off of him at the time of the MVA, and his t-shirt was damaged. He stated he did not have the money at the time to replace them, but if he would have received the money for attendant care from Aviva, he likely would have replaced these items.

Cross-examination of Mr. Weaver

The Insurer’s counsel, Mr. Keating asked Mr. Weaver why the OCF-6 had noted Mr. McLeod assisted Mr. Weaver with hygiene and dressing for only one week. Mr. Weaver responded he needed attendant care for more than one week. Mr. Keating stated an amount of $3,000.00 was claimed for attendant care representing the period from October 14 - November 30, 2013, which was more than one month. Mr. Weaver responded he was unsure why his prior legal representative’s office filled in $3,000.00 for that period. Mr. Weaver agreed he was provided an opportunity to review the OCF-6 form completed by his prior legal counsel before he signed it. Mr. Keating asked Mr. Weaver why a second OCF-6 had never been submitted to Aviva for ACBs; Mr. Weaver responded that he did not know why, but further stated Aviva had not paid anything for attendant care when expenses were previously submitted.

Mr. Weaver testified that in December 2013, Mr. McLeod was doing the meal preparation, making the beds, doing the laundry, assisting with the grocery shopping, and accompanying him to doctor’s appointments. The meal preparation continued to be done with Mr. McLeod’s assistance until he left in January 2014. Mr. Weaver stated he also stopped using a walker in January 2014.

When Mr. Keating put to Mr. Weaver that Ms. Wall’s December report⁹ noted he was independent with bed mobility and transfer, and day-to-day cleaning, Mr. Weaver stated he had no reason to believe this was incorrect.

Peter McLeod - Attendant Care Service Provider

Mr. McLeod testified that shortly after the MVA, Mr. Weaver could not ambulate by himself, prepare meals, go to the bathroom unassisted, run a bath, clean, or make the beds. Mr. McLeod stated he assisted Mr. Weaver with all of those activities, and further assisted Mr. Weaver with catheter cleaning, emptying of the catheter bag, and dressing. Mr. McLeod stated if Mr. Weaver were to fall down, he would not be able to get up on his own, and required 24-hour supervision in the months immediately following the MVA. Mr. McLeod described Mr. Weaver as miserable, depressed, and angry following the MVA, and said that Mr. Weaver was reliant on pain medication to manage his pain. It was Mr. McLeod’s testimony that he provided 24-hour care and supervision for Mr. Weaver from October 16, 2013 to the first week in January 2014.

Mr. McLeod testified that he was present during the first attendant care assessment on October 30, 2013, and sat in for approximately 30 minutes of it. Mr. McLeod denied that the O.T. asked Mr. Weaver during the assessment to demonstrate any activities in the house. Mr. McLeod stated that Mr. Weaver advised the O.T. that Mr. McLeod was assisting him with his care. Mr. McLeod stated the O.T. had said he was entitled to be paid $100.00 per day for providing assistance and care to Mr. Weaver, and testified that he was paid by Mr. Weaver $100.00 per day up to 6 weeks for attendant care. Mr. McLeod testified that he did not sit in for the second O.T. assessment in December 2013.

Initially, Mr. McLeod testified that he was offered employment with a company called Total Refrigeration in mid-November 2013. However, upon reviewing the letter from Total Refrigeration dated March 7, 2016,¹⁰ Mr. McLeod further testified that what the letter stated was correct, and he confirmed work was available for him there in mid-October 2013.

Testimony of Ms. Louise Wall – Occupational Therapist

Ms. Wall was qualified as an expert witness in Occupational Therapy. She issued a report dated October 31, 2013 following her initial attendant care assessment of Mr. Weaver.¹¹ Ms. Wall testified that this assessment was done at Aviva’s request through Healthnet, but she had no correspondence with Aviva; she only corresponded directly with Healthnet. Ms. Wall further stated that following an assessment, a report would be sent to Healthnet and it would forward her report to Aviva. Ms. Wall testified that the October 30, 2013 assessment she performed with Mr. Weaver included a musculoskeletal assessment. Ms. Wall stated she was predominantly dealing with Mr. Weaver’s physical injuries. Ms. Wall testified that Mr. Weaver answered the door when she arrived to do the assessment and was using a walker. It was noted within her October report that initially following the MVA, Mr. Weaver was unable to dress himself, clip his toe nails, prepare his own meals, and get out of bed unassisted, but at the time of the assessment he could perform these activities independently.¹² Ms. Wall testified that at the time of this initial assessment, which was approximately 3 weeks after the MVA, Mr. Weaver told Ms. Wall he was able to do all of those things, but not initially following the accident. Ms. Wall testified that she conducted both informal functional testing (which involved an inquiry about Mr. Weaver’s level of functioning prior to the MVA, regarding what he could and could not do), and formal “show me” functional testing, which involved Mr. Weaver taking Ms. Wall through the house to show her things he was able/unable to do. Ms. Wall stated she observed Mr. Weaver experiencing pain with over-head reaching.

Ms. Wall testified that she conducted a second attendant care needs assessment on December 16, 2013¹³ to follow-up on how Mr. Weaver was doing. Ms. Wall stated that this assessment involved formal and informal functional testing. Ms. Wall testified that Mr. Weaver was no longer using a walker at the time of the second assessment, and walked her through the house. The Form 1 issued following the December 2013 assessment noted Mr. Weaver’s attendant care needs at $0.00 per month.¹⁴ Ms. Wall stated that she did not tell Mr. Weaver who he could or could not use as an attendant care provider, and that she did not provide an amount to Mr. Weaver regarding how much he could pay an attendant care service provider.

During cross-examination, Mr. Genova put to Ms. Wall that she had testified Mr. Weaver was using a walker when he answered the door for the October 30, 2013 assessment, but this was not noted within her report, to which Ms. Wall agreed on both points. Ms. Wall denied having a conversation with the attendant care service provider when she was performing the October 30, 2013 assessment. Ms. Wall confirmed she had no documentation to review prior to the assessment.¹⁵ Ms. Wall agreed that she did not make requests to obtain Mr. Weaver’s medical records, to speak with Mr. Weaver’s family or his family doctor regarding the prescribing of opiates and his prior addiction thereto, or information about how long Mr. Weaver required 24-hour care. Ms. Wall said she had observed Mr. Weaver transfer in and out of bed, and she had no concern regarding Mr. Weaver’s ability to do so. Ms. Wall stated that Mr. Weaver showed her around his home. Mr. Genova asked Ms. Wall if she had recommended to Aviva that a retroactive Form 1 be completed, as it was almost three weeks following the MVA when she performed the initial attendant care assessment of Mr. Weaver. Ms. Wall stated that she had not recommended so, but was available to do one if required. Ms. Wall stated she could not comment on what the Form 1 would have looked like right after the MVA.

Ms. Wall stated she did not ask Mr. Weaver how many Percocet tablets he had taken prior to her arriving for the initial assessment in October 2013. Ms. Wall testified that she stopped the functional testing during the initial October 2013 assessment because Mr. Weaver was experiencing pain.

Ms. Wall stated the only time she would email an insurer following an assessment is if an insured required immediate care or assistance in advance of the issuance of her report, if it was to the benefit of the insured. Mr. Genova put to Ms. Wall a copy of her e-mail dated December 20, 2013 to the Insurer’s adjuster, relating to Mr. Weaver’s second attendant care assessment on December 16, 2013. A portion of that e-mail stated:¹⁶ “Hello! I just sent the report and Form 1 in to the office to be processed and sent out to you [sic]. However, I thought I’d give you the heads up He [sic] no longer needs Attendant Care so the F1 is zero.”

Closing Submissions of the Applicant

Mr. Weaver required and received 24-hour care during a three-month period following the MVA. Aviva did not send out anyone to perform an assessment of attendant care needs until nearly three weeks following the MVA. Ms. Wall admitted that Mr. Weaver initially required 24-hour care and that a retroactive Form 1 could have been completed, but the “Insurer ignored instructing her to do so.” This denied Mr. Weaver the proper assessment of his needs. During both of her assessments, Ms. Wall failed to inquire how many Percocet tablets Mr. Weaver took prior to either assessment, or report on the effect they may have had on his performance during the assessments.

The Applicant submitted that inconsistencies in Ms. Wall’s testimony included stating she toured Mr. Weaver’s home, but her report noted the lay-out of the home as “Reported by Client.”¹⁷ Ms. Wall stated she had no direct contact with the Insurer, but an e-mail was provided that she communicated with the Insurer directly to notify of a favourable outcome following the follow-up assessment, which demonstrated a clear bias. Ms. Wall could not complete formal testing on Mr. Weaver during the October 2013 assessment due to his experiencing right side abdominal discomfort, but Ms. Wall testified Mr. Weaver was functional in his lower extremity movement.

The Applicant’s and Mr. McLeod’s uncontested testimony was that Mr. McLeod was paid $100.00 per day for 45 days for the attendant care services, until the Applicant could no longer afford to pay him. Mr. McLeod continued to provide attendant care services, based upon Mr. Weaver’s promise to pay following his receipt of compensation from the Insurer.

Upon Aviva’s receipt of an OCF-6 in December 2013, Aviva refused to reimburse the Applicant for the attendant care services he had paid and provided no further explanation. The Applicant relies on Thangarajah and State Farm,¹⁸ in which Arbitrator Schnapp found that an insurer has an obligation to provide reasons when deciding that an applicant failed to prove an economic loss. Mr. Weaver testified that the OCF-6 had been completed by his prior legal counsel, and the $3,000.00 amount claimed on that Form 1 for ACBs was the maximum amount he was advised he could claim.

On April 21, 2016, Aviva was provided correspondence from the prior legal counsel who enclosed a letter from Total Refrigeration dated March 7, 2016, stating Mr. McLeod had work available to him in mid-October 2013, but delayed commencing it until January 2014 as he was providing attendant care services for Mr. Weaver. The letter from Total Refrigeration was evidence that Mr. McLeod sustained an economic loss. To date, no ACB has been paid.

The Applicant relies on ss. 15(1)(a) and 24 of the Schedule, and his unchallenged testimony, that the Insurer should reimburse the Applicant for: $80.00 for an eye exam, $400.00 for sunglasses, $75.00 for jeans, $37.00 for a t-shirt, $150.00 for a jacket, and $120.00 for a pair of shoes, further to an OCF-6 submitted to the Insurer on December 11, 2013 which attached receipts. The Applicant relies on Keeping which stated “it is well established that insurance coverage provisions are to be interpreted broadly” (emphasis Applicant’s).¹⁹ The Applicant further submitted that a “…narrow interpretation of section 24 of the Schedule for prescription eyewear and clothing would be contrary to the principle detailed in Keeping.”

The Applicant sought a special award on the basis that the Insurer unreasonably withheld payment of the ACB, as well as the expenses noted above. Further, the Applicant submitted that the Insurer unreasonably delayed (until the day before the arbitration) payment of $1,779.40 for a medical/rehabilitation benefit, $299.98 for prescription eyewear, and $42.96 for prescription medication.

Closing Submissions of Insurer

Mr. Weaver submitted an OCF-1 dated October 29, 2013 to Aviva, and an Assessment of Attendant Care Needs was conducted by Ms. Wall the next day. Her Form 1 dated October 30, 2013 was generated in the amount of $1,483.94 per month. Mr. Weaver testified he was given an opportunity to review his OCF-6 before signing it, but he did not review the document before signing it. Aviva submitted that by signing the form, Mr. Weaver certified that the information provided was true and correct.

On or about December 17, 2013, Aviva sent Mr. Weaver and his prior legal counsel a letter²⁰ that ACBs were not payable, as the definition of incurred had not been met per s. 3.7(e) of the Schedule, and a copy of this provision was included with the letter.

The Insurer submitted that subject to legislated limits, the maximum amount of a monthly attendant care benefit is determined in accordance with an “Assessment of Attendant Care Needs” Form 1, per s. 19(2) of the Schedule and Motor Vehicle Accident Claims Fund v. Veley.²¹ Therefore in accordance with Ms. Wall’s Form 1s, the maximum quantum of ACBs payable to Mr. Weaver was $1,483.94 per month from October 30 to December 16, 2013, and $0 per month thereafter.

In order for ACBs to be payable, expenses relating to attendant care services must be incurred, per s. 19(1) of the Schedule. Further, economic loss must be shown by Mr. McLeod for each month during which ACBs are being claimed, as noted in Keeping and Aviva Canada Inc.²² Mr. McLeod’s testimony was that he was not looking for a job and was not offered a job from Total Refrigeration until the middle of November 2013, and so no economic loss was sustained until the middle of November 2013.

As per Ungaro v. Aviva Canada Inc.,²³ the Form 1 defines the attendant care needs of the Applicant, but the OCF-6 is what triggers payment, and no amounts are payable beyond what is submitted by an OCF-6. The Insurer submitted that the maximum ACB payable for incurred expenses, in accordance with the Form 1, was in the amount of $1,483.94 per month, and the OCF-6 claiming expenses up until November 30, 2013 ought to have been $684.90, assuming a timeframe of two weeks. The Insurer submitted Mr. McLeod stated he did not commence work with Total Refrigeration until mid-November 2013, but no exact start date was provided by him.

The Insurer submitted that the Schedule does not provide an allowance for an examination fee. Therefore, the $80.00 claimed by the Applicant for an eye examination was not payable, and payment to replace prescription eyewear does not include an allowance for associated eye examinations. With regards to the $400.00 claimed by the Applicant to replace his sunglasses, s. 24(2) of the Schedule only permits payment for lost/damaged prescription eyewear. Aviva submitted that Mr. Weaver did not provide any evidence that the sunglasses were prescription eyewear. Mr. Weaver also claimed reimbursement for jeans, a jacket, shoes, and a t-shirt which were damaged in the MVA. The Insurer submitted that s. 24 of the Schedule permits payment for reasonable expenses incurred for clothing worn by the insured person at the time of the MVA and damaged therein. The Insurer submitted that its letter dated December 17, 2013²⁴ advised the Applicant that receipts were required for clothing replacement items, but to date no replacement receipts were provided, nor any evidence provided that these items had been replaced or to confirm what their replacement cost was.

Regarding the claim for the special award, it was Aviva’s position that Mr. Weaver did not provide clear particulars regarding how it’s withholding or delaying payment of benefits could be considered unreasonable, and failed to substantiate this claim. The Insurer submitted that the letter from March 7, 2016 letter from Total Refrigeration could not constitute economic loss as it contradicted the sworn testimony by Mr. McLeod in which he initially testified that work was available from Total Refrigeration commencing mid-November 2013 but that he was not available to start this work as he was caring for Mr. Weaver. The Insurer submitted the testimony of Mr. McLeod constituted evidence of an economic loss, but this information was not provided until the Hearing, and thus the delay rested with Mr. Weaver and not Aviva. The Insurer submitted that attendant care needs were assessed the day after the OCF-1 was received. The Insurer submitted that the Schedule “does not require an insurer to retroactively assess benefits. Mr. Weaver was free, at any point, to submit a report quantifying his attendant care needs. He opted not to.”

The Insurer lastly submitted that its adjuster’s non-response to the e-mail of June 13, 2016 from Mr. Weaver’s prior legal counsel should not lead to an adverse inference. Aviva had retained legal counsel at that point, which counsel was aware of, so the e-mail directly to the adjuster was inappropriate.

ANALYSIS AND DECISION:

1. Is Mr. Weaver entitled to attendant care benefits in the amount of $3,000.00 per month from October 11, 2013 to January 9, 2014, for services provided by Mr. Peter McLeod?

I find that Mr. Weaver is entitled to ACBs in the amount of $1,483.94 per month from October 16, 2013 to November 30, 2013. This was the amount noted on the Form 1 dated October 30, 2013.²⁵ The only other Form 1 completed was for $0, dated December 16, 2013. Both Form 1s were completed on behalf of Aviva. Aviva submitted that s. 19(2) of the Schedule and Motor Vehicle Accident Claims Fund v. Veley establish that the maximum amount payable for a monthly ACB is established by the Form 1. As there are no other Form 1s at all regarding Mr. Weaver, not even a retroactive one, I consider the amount of $1,483.94 to be the maximum monthly amount payable for the ACB. Other than immediately following the MVA, Mr. Weaver has been represented by various legal counsel throughout.

It has been confirmed that Mr. Weaver sustained the following injuries as a result of the MVA of October 11, 2013: broken ribs, pelvis, a torn urethra, and lacerations to his wrists and elbows. Mr. Weaver testified that he lived alone and required an extensive amount of attendant care and supervision from mid-October to January 9, 2014. I found Mr. Weaver to be a straight-forward and credible witness. He testified that his attendant care needs exceeded amounts shown on the Form 1 of October 30, 2013. Although his attendant care needs would most likely have been higher in the weeks immediately following the MVA, there was no retroactive Form 1 provided to assess what Mr. Weaver’s attendant care needs would have been.

The OCF-6 completed by Mr. Weaver’s prior legal counsel, dated December 3, 2013,²⁶ claimed ACBs at the rate of $3,000.00 per month from October 14 - November 30, 2013. This was the only OCF-6 submitted to Aviva claiming payment for the ACB. As this exceeded the October 30, 2013 Form 1 rate, I do not find that $3,000.00 per month is payable. I found Mr. McLeod’s testimony very credible. As Mr. McLeod testified that he started providing attendant care to Mr. Weaver as of October 16, 2013, I find this is the date Mr. Weaver started receiving the attendant care, and not as noted in the OCF-6, and Mr. Weaver further testified that he was released from hospital three days following the MVA. I rely on Ungaro that it is the OCF-6 which triggers payment as per the Form 1, and no amount is payable beyond what has been submitted in the OCF-6.

I find Mr. Weaver incurred expenses for attendant care, as defined within s. 19(1) of the Schedule. Mr. McLeod testified that he had work available to him with Total Refrigeration in mid-October 2013, but did not accept a position working for them until January 9, 2014, as he was providing attendant care to Mr. Weaver. Total Refrigeration’s letter dated March 7, 2016 supports this. Even though it did not specify an exact date when work was available for Mr. McLeod in October 2013, I accept that the October 16, 2013 date provided by Mr. McLeod coincides with the letter. I find that Mr. McLeod has sustained an economic loss as defined by s. 3(7)(e) of the Schedule.

2. Is Mr. Weaver entitled to a medical benefit in the amount of $80.00 for an eye examination fee, expense submitted to Aviva on December 3, 2013?

Mr. Weaver testified that his sunglasses which had prescription lenses were lost in the MVA. He has testified that he needed to get an $80.00 eye exam so he could obtain a prescription to replace them, and provided a receipt dated October 29, 2013 in the amount of $80.00.²⁷ I find that per s. 15(1) of the Schedule, this benefit is payable. It was a reasonable and necessary expense incurred by Mr. Weaver.

3. Is Mr. Weaver entitled to payments for damage to clothing, glasses, hearing aids etc. in the amounts as follows for the following expenses submitted to Aviva on December 3, 2013: $400.00 for sunglasses, $75.00 for a pair of jeans, $37.00 for one Harley Davidson t-shirt, $150.00 for a jacket, and $120.00 for a pair of shoes?

I find that the sunglasses Mr. Weaver lost in the MVA constitute prescription eyewear. He testified he had to undergo an eye exam to replace them. He provided a receipt from Crown Opticians dated November 5, 2013 for $400.00,²⁸ which itemized the cost for the frame as $100.00, and the lenses were $300.00. I find this receipt satisfactory that the replacement sunglasses were prescription eyewear. Per s. 24(2) of the Schedule, they are payable.

Regarding the remaining items ($75.00 for a pair of jeans, $37.00 for a Harley Davidson t-shirt, $150.00 for a jacket, and $120.00 for shoes), I do not find these items payable. The wording in s. 24 of the Schedule is clear, and states:

The Insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing the following:

Clothing worn by the insured person at the time of the accident that was lost or damaged as a result of the accident.

I agree with Aviva that no receipts have been provided for these clothing items. There is no way to know what the replacement costs for these items are, and there was no proof the expenses to replace them were incurred. Mr. Weaver testified he had not replaced them.

4. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Weaver?

The Applicant’s counsel stated at the outset of the Hearing that the particulars of the special award claim would be provided through testimony and evidence, and the Insurer raised no objection. I do not agree with the Insurer’s position as submitted through its closing submissions that the Applicant did not provide clear particulars regarding how the Insurer’s withholding or delaying payment of benefits could be considered unreasonable, and failed to substantiate this claim. I find that the evidence and testimony provided at the Hearing supported the Applicant’s claim for a special award.

Pursuant to s. 282(10) of the Insurance Act,²⁹ I find that Aviva has unreasonably withheld or delayed payments to Mr. Weaver for attendant care, a medical benefit, and payments for damage to clothing, glasses, hearing aids, etc. I am therefore awarding a special award of 50% of the total amount of the benefits owing. Therefore the amounts Aviva shall pay to Mr. Weaver as a lump sum amount for the special award is as follows:

$1,137.69 total for ACBs, plus applicable interest thereon from May 1, 2016 which is 10 days following the April 21, 2016 e-mail sent to Aviva enclosing the March 7, 2016 letter from Total Refrigeration.
$40.00 for the eye exam and $200.00 for the sunglasses, plus applicable interest thereon from December 17, 2013, the date of Aviva’s letter denying these benefits.

Receipts were provided to Aviva for the eye exam and the sunglasses, and I found these benefits payable. Aviva’s denial letter dated December 17, 2013³⁰ noted eye examinations are not covered, which contradicts s. 15(1) of the Schedule. The December 17, 2013 letter further noted the sunglasses were not covered, as “only items that you were wearing at the time of the accident are covered.” However, s. 24(2) of the Schedule covers “prescription eyewear, dentures, hearing aids, prostheses and other medical or dental devices that were lost or damaged as a result of the accident.” I accept Mr. Weaver’s testimony that his sunglasses were not recovered in the MVA and that they were prescription eyewear as evidenced by the receipts and OCF-6 provided to Aviva on December 11, 2013. The Schedule defined the coverage of these benefits. I find the denial of these benefits was unreasonable as Aviva’s denial of these benefits was contrary to what has been stipulated by the Schedule and as a result, Aviva unreasonably withheld payment of those benefits to Mr. Weaver.

Regarding the ACB, on October 30, 2013 Aviva sent an O.T. to perform an Assessment of Attendant Care Needs and complete a Form 1, which was a day after the OCF-1 was dated. I accept this was a reasonable response time.

Although the Schedule does not require the insurer to do a retroactive Form 1, I note the mechanism of injury—being Mr. Weaver was ejected from a pick-up truck, and it then rolled on top of him, causing him to be pinned underneath it for 45 minutes. As a result, he sustained serious injuries that warranted attendant care from the date he was released from the hospital. This was clearly the acute phase of his injuries. Mr. Weaver was also unrepresented at this time.

Lastly, there was Ms. Wall’s e-mail of December 20, 2013 directly to Aviva’s adjuster advising that the Form 1 would now be $0. Ms. Wall had just provided testimony immediately prior to its introduction that she does not correspond with the insurance company directly unless it was to provide information that the insured person required immediate services, and it would be a benefit to provide that information to the insurer prior to waiting for her report to be issued. I fail to see how an e-mail advising that Mr. Weaver’s ACBs are $0 is a benefit to the Applicant. The only party who may have benefited from the December 20, 2013 e-mail would have been Aviva. This e-mail suggests that Ms. Wall demonstrated behaviour which clearly favored the Insurer. The only conclusion I can draw is that it was intended to alert Aviva that it could stop Mr. Weaver’s ACB as soon as possible.

Lastly, the letter from Total Refrigeration was provided by cover letter from Mr. Weaver’s prior counsel dated April 21, 2016, and a date stamp at the top of the letter indicates it was sent to Aviva by fax that day. The letter provided Aviva with proof that the service provider, Mr. McLeod, had sustained an economic loss. I recognize that Aviva had retained legal counsel at this time and this letter should have been sent to legal counsel and not the adjuster. However, Aviva had a duty to continuously adjust Mr. Weaver’s file, and this correspondence ought to have been forwarded to its legal counsel to respond. An e-mail of June 13, 2016 was sent by Mr. Weaver’s prior legal counsel to follow up on the payment of ACBs, but to date no ACBs have been paid to Mr. Weaver. In its closing submissions, Aviva submitted that it was not until at the Hearing that it was provided evidence of an economic loss through Mr. McLeod’s testimony. I disagree with that submission. The letter from Total Refrigeration sent to Aviva by e-mail on April 21, 2016 noted Mr. McLeod sustained an economic loss as a result of providing attendant care to Mr. Weaver. Aviva should have followed up on this information with either Mr. Weaver’s legal counsel and/or Mr. McLeod to confirm this, but it failed to contact either of them. Therefore I find the letter from Total Refrigeration along with the testimony provided by Mr. Weaver and Mr. McLeod confirms that Mr. McLeod sustained an economic loss as result of providing attendant care to Mr. Weaver.

For the above reasons, I find that payment of the ACB was unreasonably withheld from Mr. Weaver.

5. Is Mr. Weaver entitled to interest for the overdue payments of benefits?

Mr. Weaver is entitled is entitled to interest for any overdue amounts, in accordance with the Schedule with respect to the benefits I found to be payable.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me within 30 days of the date of this Order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 13, 2017

Kimberly Parish Arbitrator

Date

Financial Services Commission of Ontario