LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: December 16, 2016 Tribunal File Number: 16-000308/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

V. L. Applicant

and

TD Meloche Monnex Respondent

DECISION

Adjudicator: Nicole Treksler

Appearances

Applicant: V. L. Counsel for the Applicant: Fabio Longo Representative of the Respondent: Denise Hughes Counsel for the Respondent: Stuart J.D. Norris and Fergal Murphy Court Reporter: Beverly Kowbel Interpreter: Irene Corey

Held by Teleconference: October 6, 2016

I. Introduction

1. The Applicant, V. L., was injured in an automobile accident on January 21, 2014, and sought caregiver and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2. The Respondent denied the Applicant caregiver benefits because it alleges the Applicant did not and does not reside with his parents to whom he was allegedly providing care and did not provide proof of incurred expenses for caregiver services.

3. The Respondent also denied the Applicant’s rehabilitation benefit for an electric assist motor bicycle in a treatment plan dated May 17, 2016, for the following reasons:

   • The proposed goods would not address the Applicant’s complaints as they relate to his alleged inability to ride a bicycle; and
   • The proposed goods are unreasonably expensive, and there are far more economical options available that would be of greater benefit to the Applicant.

4. The onus is on the Applicant, on a balance of probabilities, to show that he resided with his parents at the time of the accident, has adequate proof of incurred expenses and that the electrical assist motor bike is a reasonable and necessary expense for his rehabilitation.

5. I am of the view that the Applicant is entitled to caregiver benefits and a rehabilitation benefit for an electric assist motor bicycle.

II. Benefits in Dispute:

1. Is the Applicant entitled to receive a weekly caregiver benefit in the amount of $300 from January 1, 2014 to December 31, 2014?

2. Is the Applicant entitled to receive a rehabilitation benefit in the amount of $3,333.50 as set out in a treatment plan (OCF-18) completed by Polyclinic Rehabilitation Institute Inc., dated May 17, 2016?

3. Is the Applicant entitled to interest on the overdue payment of benefits?

III. Result:

1. The Applicant is entitled to receive a weekly caregiver benefit in the amount of $300 per week from February 1, 2014 to November 1, 2014.

2. The Applicant is entitled to receive a rehabilitation benefit in the amount of $3,333.50 as set as set out in a treatment plan (OCF-18) completed by Polyclinic Rehabilitation Institute Inc., dated May 17, 2016.

3. The Applicant is entitled to all applicable interest on the benefits.

IV. Background

a) Is the Applicant entitled to caregiver benefits?

1. On January 21, 2014, the Applicant was in a motor vehicle accident and sustained physical and psychological injuries which prevented him from providing care to his elderly parents. As such, he hired a caregiver, I. M., to look after his parents.

2. For 5 years prior to the accident, the Applicant provided caregiver services to his parents on an ongoing, consistent and regular basis. The Applicant purchased caregiver benefits as an optional benefit, to specifically ensure that he was covered, in the event he was unable to provide care to his parents. The Applicant does not have any other dependents as his children are adults.

3. The Applicant always sought to live close to his parents. He initially lived 350 meters from his parent’s condominium. As his family grew, he moved to a home 900 metres walking distance from door to door, but a 3 km drive.

4. The Applicant indicates that he lived with his parents and his parents lived with him from time to time, including at the time of the accident.

5. The test for caregiving benefits is set out in Section 13(1) of the Schedule which states that:

The Insurer shall pay a caregiver a benefit to or for an insured person who sustains a catastrophic impairment as a result of an accident if, as a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she was engaged at the time of the accident and if, at the time of the accident,

a) The insured person was residing with a person in need of care; and

b) The insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

6. The first issue is whether the Applicant resided with his parents at the time of the accident.

7. The second issue is whether the Applicant provided adequate proof of expenses.

8. The Respondent did not challenge that the Applicant was the primary caregiver and has not provided any evidence to the contrary. As such, I am of the view that the Respondent accepts that the Applicant is the primary caregiver in this matter.

b) Is the Applicant entitled to a rehabilitation benefit for an electric assist motor bicycle?

9. Prior to the accident, the Applicant regularly commuted to work on his bicycle and since the accident, he has not been able to do so due to intensified pain in his neck, lower back and arms.

10. The Applicant’s treating chiropractor, Dr. Grossman, indicated that an electric assist motor bicycle would permit the Applicant to cycle to work again by alleviating strain on his back and arms when the Applicant pedalled up hills.

11. Section 16(1) of the Schedule states that rehabilitation benefits shall pay for reasonable and necessary expenses incurred for measures and activities undertaken by the insured that would reduce or eliminate the effects of any disability resulting from the impairment.

12. The Applicant must show that electric assist motor bicycle is a reasonable and necessary expense for him to return to his pre-accident status.

V. Analysis

a) Did the Applicant “reside with” his parents at the time of the accident?

13. The Respondent submits that that the term “reside with,” in the common or ordinary sense of the words, means that there is an intention to remain in the same residence, whether that is an apartment, condo, detached home, townhome or trailer.

14. The Respondent further asserts that in order for the term to have meaning, there must be some limit. In this case, the Applicant lives 900 metres walking distance from door to door, which is a 3 km circuitous drive from his parents’ home. The two locations are separate residences, on different streets, with different mailing addresses and different postal codes. To conclude that “resides with” is capable of extending over several kilometers would render the term meaningless and create significant uncertainty.

15. The Respondent submits that the following decision, Rampersaud v. TD General Insurance Co., [2013] O.F.S.C.D No. 22 paras 24-28 (Rampersaud), which the Applicant relies on is not relevant based on four grounds: Proximity, Level of Care, Intent and Available Space.

• In terms of proximity, in Rampersaud, the Applicant lived in the same building as her parents, only separated by two floors. Whereas, the Applicant in this matter lived at an entirely different address, 900 metres away walking distance, approximately 3 km drive apart.

• The Respondent states that the level of care was constant in the Rampersaud matter; whereas, the needs of the Applicants’ parents varied, not requiring full time care.

• The Respondent submitted that, in this matter, the Applicant lived close to his parents before the need for care arose. In Rampersaud, the Applicant moved into her parents’ condo with the express intent of providing care.

• The last factor that the Respondent submitted which distinguished the Rampersaud case from this matter is that there was room for the Applicant’s parents to live in the Applicant’s home, but they chose not to. In contrast, in the Rampersaud case, the applicant’s mother lived in a small apartment with her husband and children that was not large enough accommodate the applicant and her family.

16. I disagree with the Respondent’s position. Firstly, the term “reside with” is not defined in the Schedule. Neither party presented any evidence to determine what the Legislature intended regarding the residency requirement for caregiver benefits. The legislature could have narrowly defined “reside with,” by adding the word “permanently reside with,” but that was not contemplated. As such, in my view, the term “reside with” must be interpreted on a case by case basis to reflect different family arrangement and dynamics. I have considered the following aspects in my analysis of whether the Applicant was residing with his parents at the time of the accident:

• “Reside with” is a question of fact, in the context of time, object, intention and continuity [Rampersaud v. TD General Insurance Co., [2013] O.F.S.C.D No. 22 paras 24-28 (Rampersaud)];
• “Reside with” has different meanings in different contexts Thomson v. Canada (Minister of National Revenue-M.N.R.) (Thomson);and
• “Reside with” must interpreted to reflect the purpose of the legislation.

“Reside with” is a question of fact, in the context of time, object, intention and continuity

17. In the Rampersaud decision, Arbitrator Wilson determined that residing with a person in need of care at the time of the accident is a question of fact, which may be determined in the context of time, object, intention, and continuity. While I am not bound by a FSCO decision, I find that this analysis is useful framework to determine residency requirement under section 13(1) of the Schedule.

18. Arbitrator Wilson found that the applicant resided with her parents even though they were not living in the same condominium unit. For that reason, I believe that Rampersaud is relevant because there is a similar fact pattern. The applicant in that decision lived in the same building as her aging parents, provided care to her mother before and after work and on weekends and assisted her father in caring for her mother.

19. The question of whether or not the Applicant was residing with his parents at the time of the accident is a question of fact, to be determined by considering factors such as intention, object, frequency, continuity and time. In the present case, the Applicant was the primary caregiver to his parents and intentionally lived within a short distance in order to take care of them. He also purchased optional caregiver services with the foresight that if he were to get into an accident, they would receive caregiver services. The Applicant provided caregiver services for an indeterminate amount of time, on a continuous, habitual basis for a period of five years and ongoing and lived with his parents intermittently and his parents lived with him.

20. In particular, I focus on the Applicant’s family arrangements. The Applicant indicated, when the need arose, that his parents lived with him or he lived with them. In the Applicant’s affidavit, in or about May of 2012, the Applicant’s parents moved in with the Applicant for a period of four months. Subsequently, in or about June 2013, the Applicant moved in with his parents for a period of three months. Further, the Applicant has a key and a room at his parents’ home and his parents’ have a key and a room to the Applicant’s home. Their family dynamic was that they were residing in two homes.

21. In this analysis, I am satisfied that the Applicant was “residing with” his parents at the time of the accident.

22. Further, I am not persuaded with the Respondent’s arguments that the Rampersaud case was not relevant based on four grounds: Proximity, Level of Care, Intent and Available Space.

23. In my view, proximity is not the determining factor when deciding whether a person meets the residency requirement for caregiver benefits in the Schedule. The Applicant must live within a reasonable distance to provide regular and ongoing care. What is considered reasonable will have to be determined on case by case basis. In this matter, the Applicant lived close enough, by foot and by car, to assist his parents on a daily basis to provide care.

24. I reject that the level of care is a requirement in the Schedule to determine residency. The Schedule does not specify the level of care that the Applicant is required to provide, whether it is constant or varied. Given that the Applicant’s parents only required part-time care, most of the time, the Respondent argues it allowed the Applicant’s parents to maintain separate residences. The Applicant’s parents, who are both in their eighties, suffer from multiple chronic medical issues. The Applicant asserts that they are both disabled and require constant care. The Applicant’s father suffers from:

• severe atherosclerotic heart disease with angina pictoris and a history of numerous angioplasty
• left renal neoplasm with cystostomy;
• type II insulin dependent with all complication associated with his disease- neuropathy, retinopathy; and
• history of cardio-vascular accident affecting cerebellum with moderate degree of ataxia.

The Applicant’s mother suffers from:

• severe atherosclerotic heart disease with angina pectoris requiring angioplasty;
• retinal haemorrhaging that caused blindness
• severe degenerative disc disease with chronic mechanical back pain; and
• osteoarthritis affecting the knees.

Given the nature of the Applicant’s parents’ ailments, I am of the view that the level of care that the Applicant provided was consistent and regular. The Applicant’s parents could not have possibly lived independently without their son’s daily assistance. In my view, the Applicant provided a comparable level care as the applicant in the Rampersaud decision. Irrespective of the level of care that the Applicant provided, it is not a determining factor in deciding whether the Applicant met the residency requirement.

25. In terms of intent, I am persuaded that the Applicant intended to live close to his parents in order to provide care for when they would require it—it was part of his culture to do so. In the Applicant’s testimony, he indicated that he had lived about 350 metres away, but his family grew so he had to find another home. The Applicant testified that he would have lived closer, but the only available home, he could afford, was 900 meters walking distance away. I am of the view that the Applicant had the intention to live close to his parents to provide care and lived close enough to provide such care on a daily basis.

26. In terms of available space, my position is that the Applicant’s family dynamic was that he and his family were residing in two homes and spent more or less equal time in each other’s home. Further, I am satisfied with the Applicant’s testimony that he maintained separate homes for two reasons: First, to maintain the dignity of his parents and second, in order to maintain peaceful family relationships, the Applicant’s parents and the Applicant’s immediate family preferred to live in separate homes.

“Reside with” has different meanings in different contexts

27. The Respondent’s position is that the term “reside” must be interpreted according to its plain and ordinary meaning. The Respondent referred to the Black’s Law Dictionary for the term “reside” which is defined as “live, dwell, abide, sojourn, stay, remain, lodge.” The Applicant points out words such as “sojourn” and “lodge” indicate a temporary stay.

28. In my view, the term “reside with” can encompass a number of different scenarios. For example, in Thomson v. Canada (Minister of National Revenue-M.N.R.), 1946 CanLII 1 (SCC), [1946] S.C.R. 209 (Thomson), Rand J. discussed the definition of the term residing and stated that “it is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter.”

29. Given that the term “reside with” was not defined in the Schedule, I am persuaded that the term must be interpreted in a broad and flexible way that reflects the purpose of the legislation. Arbitrator Wilson referenced the tax case, S.R. v. Canada [2003] T.C.J. No. 489, which noted that “reside with” should be construed in a way that reflects the purpose of the legislation.

Purpose of the legislation

30. The primary purpose of the legislation is consumer protection designed to give applicants timely access to benefits. As such, I find that the term “reside with” in the Schedule must be interpreted broadly and liberally to reflect the varied living arrangement of families while taking into account the ability of caregivers to provide regular and continuous care.

31. In this matter, the Applicant intended to live close to his parents in order to provide regular and daily care over a long period of time. Residency should not be determined necessarily or solely on how far the Applicant lived from his parents, but rather it should be focused on the Applicant’s intention and ability to provide continuity of care to his parents. The Applicant lives 900 metres walking distance from door to door from his parents, which is a reasonable distance to provide the type of daily care his parents required. Further, I am of the view that the Applicant was residing in two homes at the time of the accident--- the Applicant lived with his parents and his parents lived with him.

32. In examination of the Applicant’s particular family living arrangements, the Applicant was “residing with” his parents at the time of the accident.

b) Was there adequate proof of incurred expenses?

33. The Respondent submits that the Applicant has not provided any documentary evidence, such as receipts, withdrawals from a bank account, etc. that he had paid for caregiving services.

34. In addition, the Respondent argued that under subsection 8(e) iii of the Schedule, I. M. did not provide the services in the course of the employment that she would have ordinarily engaged, but for the accident.

35. The Applicant provided a notarized confirmation of caregiving services signed by I. M. which provided the following information:

• Length of service: February 1, 2014 - November 1, 2014
• To whom the services were provided to: the applicant’s parents
• Type of services provided: safety and supervision, providing company, dressing them, bathing them, food preparation, running errands, taking them to the park, driving them to their appointments, etc.
• Hours per week: 20
• Hourly rate: $20

36. The Respondent submits that this documentation was not adequate as it did not leave a paper trail for it to follow and investigate the claim. As such, this type of documentation prejudices the Respondent.

37. The Applicant indicates that there is no paper trail because he paid I. M. in cash. I have found nothing in the Schedule which states the form in which incurred expenses must be provided to the Insurer. I accept the Applicant’s documentary evidence.

38. Firstly, the Respondent agrees that the Applicant was not able to physically provide caregiver services to his parents, as he had done prior to the accident. Secondly, I am satisfied that the Applicant’s parents required caregiver services and that someone provided those services. On a balance of probabilities, I am of the view that I. M. provided those services. The Applicant’s parents and I. M. testified that she provided care to the Applicant’s parents. Given that the Respondent has not provided any evidence to the contrary, I accept the testimony of both I.M. and the parents.

39. Regarding the Respondent’s second point, I am of the view that I. M. provided care in the course of her employment. The Applicant indicated that I. M. had worked for 8 years previously as a nanny for his children. I. M. testified that she ordinarily cleans offices.

40. I. M. has worked at various jobs, one of which was providing caregiving services to the Applicant’s parents. Given that I. M. had taken care of the Applicant’s children and that she speaks Russian, I conclude that the Applicant trusted I. M. with the care of his parents, as he had trusted her with the care of his children.

41. I find that the Applicant provided adequate proof of incurred expenses for caregiver services.

c) Is the Applicant entitled to rehabilitation benefit for an electric assist motor bicycle?

42. Prior to the accident, the Applicant regularly commuted to work on his bicycle, his preferred mode of commuting. Since the accident, he had not been able to do so. The Applicant provided affidavits from two staff members indicating that the Applicant used to come to work by bike and no longer does so.

43. The Applicant submits that the he can no longer commute to work on his bike as the pain in his neck, lower back and arms have intensified.

44. The Applicant relied on section 16 of the Schedule which states that rehabilitation benefits shall pay for reasonable and necessary expenses for the “purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.”

45. Dr. Grossman, Chiropractor, submitted two treatment and assessment plans, dated May 17, 2016 and June 1, 2016, recommending, amongst other things, an electrical assist bicycle will help the Applicant return to his pre-accident lifestyle with little or minimal impact on his neck, lower back and arm injuries. The parties agreed that the Tribunal will only consider the treatment plan dated May 17, 2016, as the other treatment plan was not listed in the Applicant’s application nor was it one of the issues at the case conference.

46. The Respondent’s position is that the proposed electric motor was not reasonable and necessary based on Dr. Julie Millard’s physiatrist report. Dr. Millard indicated that the motor would not alleviate the strain placed on the Applicant’s wrists and back by cycling. In her report, she indicated that the Applicant stated that his pain is exacerbated by sustained postures, which are required by cycling. Dr. Millard explains that the Applicant’s wrist pain would be exacerbated by supporting his body with his wrists using the handlebars. She suggested a stationary recumbent bicycle, which would alleviate the need to sustain a hunched posture and eliminate the need to support his own body weight with his wrists and arms.

47. The Respondent submits that there is no medical information to indicate that the Applicant is unable to pedal a bike. The Respondent argues that there is no correlation between the Applicant’s ability to pedal and the Applicant’s neck, lower back and arm injuries. Further, the Respondent argues that there are cheaper options available that the Applicant can use to retrofit his bike.

48. In response to Dr. Millard’s report, Dr. Grossman indicated that the Applicant’s bike was fitted to provide him with a vertical seat position to eliminate any forward lean onto his hands and wrists. Dr. Grossman also advised the Applicant to use a lumbar support belt while riding and also had a shock absorbing seat installed to minimize lower back compressive forces. Further, Dr. Grossman indicated that the bicycle would provide a significant amount of cardiovascular exercise, as the Applicant would only use the motor to provide assistance when he went up hills.

49. The Applicant indicated that the other cheaper options were not appropriate to retrofit his bike. In fact, the Applicant attempted to retrofit his bike, but it did not work. As a result, he bought a new bike that was purchased much more than the treatment plan. The Applicant is content to receive the amount that is indicated in the treatment plan.

50. I am of the view that the treatment plan is reasonable and necessary in order for the Applicant to return to his pre-accident status.

51. The Applicant used to cycle to work which provided cardiovascular exercise. I am persuaded that a retrofit bike would assist the Applicant to get some exercise while minimizing the impact of the exercise on his neck, back and arms. Dr. Millard’s report did not convince me that a stationary bicycle would provide the same strength and cardiovascular conditioning as a motorized bike. Further, Dr. Millard was not available to be cross-examined, which did not give the opportunity for the Applicant to question her findings. As such, the parties consented that less weight would be given to Dr. Millard’s report, but that I would refer to the findings in her report.

52. I do not agree with the Respondent’s position that there was no correlation between the Applicant’s ability to pedal and his sustained injuries. The Applicant provided a reasonable explanation that he cannot pedal without impacting the pain level of other parts of the body. In particular, when the Applicant is cycling up a hill on his non-motorized bike, he may have to sit up from his bike and lean into the handle bars, which would exert pressure on his wrists, arms and back.

53. Further, the Respondent indicated that there were cheaper options of motors than the Applicant proposed. While there were cheaper options, the Respondent was not knowledgeable about which products could be retrofitted on the Applicant’s bicycle. In fact, the Applicant attempted to retrofit his bike with the more expensive product and the installation was not successful. As such, he bought a motorized bike. The Respondent did not persuade me that a cheaper option would fit the Applicant’s bicycle.

54. I am of the view that the treatment plan was reasonable because it provided strength and cardiovascular condition to the Applicant and helped him to return to his pre-accident activities by minimizing the impact of the exercise on his neck, back and arms.

VI. Order

I order the following:

• The Applicant is entitled to receive a weekly caregiver benefit in the amount of $300 from February 1, 2014 to November 1, 2014 as indicated on the notarized confirmation of caregiving services
• The Applicant is entitled to receive a rehabilitation benefit in the amount of $3,333.50 as set as set out in a treatment plan (OCF-18) completed by Polyclinic Rehabilitation Institute Inc., dated May 17, 2016.
• The Applicant is entitled to all applicable interest on the benefits.

Released: December 16, 2016

Nicole Treksler, Adjudicator