Safety, Licensing Appeals and

Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits

Service

Mailing Address: 77 Wellesley St. W.,

Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W.,

Suite 530, Toronto ON M5G 2C2

Tel.: 416-314-4260

1-800-255-2214

TTY: 416-916-0548

1-844-403-5906

Fax: 416-325-1060

1-844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest,

Boîte n^o 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2

Tél. : 416 314-4260

1 800 255-2214

ATS : 416 916-0548

1 844 403-5906

Téléc. : 416 325-1060

1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

Date: 2017-02-24

Tribunal File Number: 16-000372/AABS

Case Name: 16-000372 v Unica Insurance Inc.

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

Between:

T. K.

Applicant

and

Unica Insurance Inc.

Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Jeffrey Shapiro

Heard: In Writing on September 22, 2016

Appearances:

For the Applicant: Nour Adil Salman, Licensed Paralegal

For the Respondent: Angela Comella, Counsel

REASONS FOR DECISION AND ORDER

Overview

1. The applicant was injured in a motor vehicle accident on December 14, 2014. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”) including various medical and Income Replacement Benefits (“IRBs”), which are not in dispute before me.

2. This is an Application by the applicant to the Licence Appeal Tribunal (the “Tribunal”) solely with respect to the resolution of the applicant’s entitlement to an Attendant Care Benefit (“AC” or “ACB”) from December 14, 2014 to December 14, 2016, i.e. two years beginning on the date of the accident. The Insurer denied the ACB contending that the need for the ACB was due to a subsequent and unrelated accident, and even if the need for the ACB was related to this accident, various additional procedural and factual grounds exist as to why the benefit is not payable or should be reduced. After consideration of the submissions of the parties on those topics, I conclude that the applicant is not entitled to the ACB.

Issue

3. Is the applicant entitled to Attendant Care Benefits (ACB) in the amount of $3,480.38 per month from December 14, 2104 to the two year mark?

Decision

4. The applicant is not entitled to the Attendant Care Benefits in the amount of $3,480.38 per month from December 14, 2104 to date, in whole or part.

Facts

5. The history of this matter is complicated by the fact that the 24-year-old applicant was involved in a series of accidents involving her knee – both before and after this December 14, 2014 motor vehicle accident (the “2014 MVA”).

6. Prior to the 2014 MVA, when the applicant was 15-years-old, she “broke her knee in two spots”.¹ Then on October 31, 2011, she was involved in a MVA (“2011 MVA”), and again on November 14, 2013 (“2013 MVA”), followed by this 2014 MVA. After the 2014 MVA, on July 6, 2015 (“2015 Fall”), she fell and injured her knee requiring surgery and AC. A central factual issue in this matter is whether the 2015 Fall was related to the 2014 MVA. Both parties provided timelines that are useful in understanding this matter:

• October 31, 2011 – Previous MVA

• November 14, 2013 – Previous MVA

• May 14, 2014 – Form-1 Assessment: $1,805.88 per month (2013 MVA)

• October 16, 2014 – Applicant diagnosed with chronic knee pain

• December 14, 2014 – This “2014 MVA” LAT file 16-000372/AABS

• July 6, 2015 – Knee Injury via the 2015 Fall – discussed below

• October 9, 2015 – Knee surgery

• November 9, 2015 – Form-1 Assessment: $3,480.38/month (Varun Madan, OT)

• March 1, 2016 – Madan’s Form-1 Assessment received by the Respondent

• March 14, 2016 – IE Assessment – Applicant says independent in self-care

• April 6, 2016 – Dr. Baker – Psychological Report with Diagnoses

• April 18, 2016 – Form-1 IE Assessment: $0.00/month (Harish Sharma, OT)

• April 29, 2016 – Request for an Examination Under Oath (EUO)

7. As noted, on May 14, 2014 – seven months prior to this 2014 MVA, the applicant had a “Form-1” completed which recommended $1,805.88 a month in ACB, largely due to impairments to the applicant’s knee.² It appears, but is unclear, that she was receiving the ACB at the time of the accident. Neither party referenced a subsequent Form-1 related to the 2013 MVA or the disposition of that ACB claim, and the applicant did not address the Respondent’s submission that the applicant was in fact receiving an ACB.

8. On October 16, 2014 – two months prior the 2014 MVA, Dr. Zizzo, the applicant’s doctor, noted the applicant’s knee was “acting up” and diagnosed her with chronic left knee pain. He noted that a prior MRI – apparently December 16, 2011 – showed meniscal damage and that surgery had been recommended.

9. On December 14, 2014, this 2014 MVA occurred. Per an OCF-3 signed by Dr. Albuquerque, the applicant sustained the following injuries: WAD II; L4/L5 Facet syndrome, Abdominal Contusion, Knee Contusion, Cervocothoracic and Lumbosacral Spine Spasm, Psychological condition.³ The applicant claimed and received medical and IRB benefits. No ACB was claimed. At some point, the applicant returned to work.

10. During the period from the 2014 MVA until the July 6, 2015 Fall, the Respondent submits there are no notes in the applicant’s materials that the applicant ever complained of knee weakness or instability from the 2014 MVA. The applicant asserts without affidavit or citation to the record that “following the accident her pre-existing injuries worsened causing the applicant to undergo surgery” and (1) the January 30, 2015 records of Dr. Albuquerque, the treating chiropractor, show the applicant complained of left side/leg pain and that she is seeing an orthopaedic surgeon the following week regarding her knee, and (2) a February 2015 note shows ongoing knee pain.⁴

11. In March 2015, the applicant was unable to continue employment, and the IRB was reinstated. Again, however, ACB was not claimed.

12. On July 6, 2015 – seven months after the 2014 MVA, the applicant injured her knee in the 2015 Fall. The parties disagree whether the fall was related to the 2014 MVA. The applicant submits “the Applicant reports that her knee gave way and she fell”; she “never had an episode where she fell while doing something that any mother of a 6 year old would do on a regular basis”; and there is no evidence that she slipped or tripped and fell.⁵ This account is not supported by affidavit, although she cites the history she provided to Mr. Madan, OT, for her November 9, 2015 In-Home Assessment Report for Attendant Care Needs and Form-1 (“Form-1”). Mr. Madan records her account as her “knee gave out while walking.” Mr. Madan’s report implies but does not clearly opine her knee gave out due to the 2014 MVA.⁶

13. In contrast, the Respondent contends the applicant injured her knee when chasing her daughter, and thus is a separate and unrelated injury to the 2014 MVA. The July 16, 2015 hand-written notes of Dr. Denkers, the treating orthopaedist, states “chasing daughter…” and his “Consultation Report” states, “The patient was chasing her daughter, on July 8, 2015, subsequently fell, felt her knee flexed and twisted underneath [her]…with significant pain being unable to weight bear immediately thereafter.”⁷

14. Following a September 22, 2015 MRI that showed evidence of an imminent tear in the medial meniscus, arthroscopic surgery was performed on October 9, 2015.

15. On October 6, 2015, the applicant submitted a Treatment Plan requesting an assessment of AC, post-surgery. The Respondent approved it on October 26, 2015.

16. On November 9, 2015, Mr. Madan, in turn, assessed the applicant, issued a Form-1 recommending AC at $3,408.38 a month. However, the Form-1 was not submitted to the respondent until March 1, 2016 – almost 4 months later.

17. The Form-1 is predicated on the fact that the applicant recently had knee surgery and therefore required assistance – noting the applicant used crutches to move about and had been advised to avoid weight-bearing. It does not appear to address AC based on any other impairment, nor comment or value any needs prior to November 9, 2015.⁸

18. The Form-1 recommended 9.5 hours of housekeeping and 25 hours of caregiving assistance, with a total need of 61½ hours per week, and a reassessment in 8 to 10 weeks. Personal care was advised at both level I and level II, including activities such as cleaning bathroom and bedroom, help in laundry, etc.

19. The history notes “her left knee gave out while walking.” Prior to the 2014 MVA, “client was reportedly partially independent with her personal care tasks,” but yet enjoyed an “active lifestyle.” According to the history, since the accident, she has also been unable to perform the majority of her pre-accident personal care, and is currently off work due to her recent surgery.

20. The Respondent raises several concerns with the Form-1, including (1) much of the assistance is actually for housekeeping and caregiving benefits, (2) assistance is sought for extra laundry due to incontinence and spillage, yet there is nothing in the records to suggest the Applicant suffered incontinence or spillage related to the 2014 MVA, and (3) maintenance of specialized medical equipment, despite it being “unclear…why the Applicant would need [105] minutes per week to monitor [such equipment].”

21. On March 1, 2016, the Respondent first received the November 9, 2015 Form-1, and on March 4, 2016, the applicant submitted an OCF-6 seeking reimbursement in the amount of $17,401.90 for the ACB provided. The ACB claimed is addressed below.

22. On March 14, 2016, Dr. Kopyto, a general physician, performed an IE Assessment. His March 29, 2016 Report described the left knee as normal, and thus the Respondent denied the applicant funding of an assessment by an orthopaedic surgeon of her choice. The applicant contends, unsupported by affidavit, that Dr. Kopyto did not utilize many of the appropriate specialized tests to diagnose soft tissue injuries inside her knee, thus “failing to examine the one part of her body that she complained about and had documented medical evidence.” Dr. Kopyto’s report notes the following:

• “On July 8, 2015 she was chasing her daughter and twisted her left knee.”

• “She did not provide a rationale as to why she was not able to participate at all [in housekeeping or home maintenance activities].”

• “In terms of self-care, she reported that she is independent, and denied any impairment.” “She stated that she continues to drive.”

• She was observed to dress and undress without demonstrated difficulty.

• Requested further records such as the ER report, ambulance report, MRI and CNRs of treating physicians.

23. On April 6, 2016, psychologist Dr. Bruce Baker completed a report making psychological diagnoses of Post-traumatic Stress Disorder, Social Anxiety Disorder and Adjustment Disorder with Depressed Mood, and recommending treatment to address same. On April 20, 2016, the Respondent approved that treatment.

24. By letter dated April 12, 2016, the applicant enclosed the log notes of Ms. Brenda Williams, the ACB service provider, and her credentials.

25. On April 18, 2016 Harish Sharma, an OT, conducted an IE assessment. His April 22, 2016 Form-1, with Assessment Report finalized on May 1, 2016,⁹ did not recommend any ACB regarding the 2014 MVA, noting the Applicant demonstrated the functional ability to perform her self-care tasks, self-reported that she was able to do so, and advised she was not working due to complications with her pregnancy. The Respondent takes the position that regardless of causation issues, at least as of this Report, there was no need for ACB. The Report relied in part on Dr. Kopyto’s IE assessment.

26. The applicant advised Mr. Sharma that she has not received any assistive devices, and “was also not quite certain” whether ACB services were recommended regarding the 2013 or 2014 MVA. She received PSW services since the 2014 MVA,¹⁰ which in October 2015 increased to four times a week, and then reduced to two times a week for 2 to 3 hours per visit. The PSW does housekeeping, laundry, etc., but not personal care.

27. April 22, 2016, the Respondent denied the applicant’s request for ACB.

28. On April 29, 2016, the Respondent requested an Examination Under Oath (“EUO”). There is no dispute that the applicant has not attended the EUO. While the record is limited regarding the non-attendance at the EUO, and neither an affidavit or supporting documents are provided, the Applicant, however, submits that she has a “high risk pregnancy,” lost one twin at nine weeks, and further considering her psychological impairments, she did not want to put her unborn child at risk, yet she agrees to attend the EUO following the birth of her child. The record does not evidence that agreement was communicated to the Respondent.

29. On July 8, 2016, the ACB was further denied based on the OT report by Harish Sharma.

Analysis

30. S. 19 (1) of the Schedule provides that “attendant care benefits shall pay for all reasonable and necessary expenses, (a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or…”

Are the Applicant’s AC needs “as a result of” the 2014 MVA?

31. The applicant submits that her knee “gave way” as result of the 2014 MVA. Based on the record before me, however, I cannot conclude that the applicant has established that the ACB claimed is “as a result of” the 2014 MVA. Whether on a “but for” or “material contribution” basis, it is not clear that (1) her knee spontaneously “gave way,” or, (2) if so, that the weakness was caused by this accident.

32. First, I prefer the applicant’s treating physician records taken immediately after the incident that indicate that she was “chasing” her daughter when she fell, over statements given to her AC assessor many months later or submissions that are unsupported by affidavit. Thus, without a clear medical opinion linking the 2015 Fall to the 2014 MVA, the fall while “chasing” her daughter appears to be an intervening and unrelated cause of injury.

33. Second, the applicant had long-standing issues with her knee including a diagnosis of chronic knee pain two months prior this the 2014 MVA, and yet did not seek or require AC related to the 2014 MVA, for at least 8 months. Thus, without a clear medical opinion, it is difficult to conclude that even if her knee spontaneously gave way on July 8, 2015, that the spontaneous buckle was related to the 2014 MVA over the pre-existing chronic condition.

34. Finally, the applicant submitted a Form-1 with regard to her 2013 MVA immediately prior to this 2014 MVA, and appears to have advised various assessors that she was receiving AC from the 2013 MVA after this 2014 MVA, thus further clouding her evidence to establish what AC now claimed relates specifically to the 2014 accident.¹¹

In the alternative, if the 2015 fall is related to the 2014 MVA, would the Applicant be entitled to “Retroactive” ACB for the period prior to its submission of the Form-1 to the Respondent – i.e. from December 14, 2014 on March 1, 2016?

35. S. 42 of the Schedule details the procedures for claiming ACB, including the form to be used and timing of its submission. At issue herein is s. 42 (5) which states:

“An insurer may, but is not required to, pay an expense incurred before an assessment of attendant care needs that complies with this section is submitted to the Insurer.”

36. Based on the facts in this case, the applicant is not entitled to “retroactive” ACB prior to the Form-1’s submission. The applicant relies on Kelly and Guarantee Company of North America (FSCO A12-006633, May 21, 2014) issued by the Financial Services Commission of Ontario (“FSCO”), for the principle that despite the language in s. 42(5) (then s. 39(3)), retroactive Form-1s are permitted. I accept the reasoning in Kelly, but I agree with the Respondent that Kelly is distinguishable from the facts in this matter.

37. Ms. Kelly sustained life-threatening catastrophic injuries, requiring her air transport to a hospital where she arrived unconscious and then stayed for over two months, while displaying cognitive deficiencies. During this “critical time” she was neither physically or legally capable of instituting the Form-1 process, yet in the hospital and for some time afterwards she required and received “reasonable and necessary” extensive 24-hour-a-day one-on-on assistance, without which she might have had “fatal consequences.”

38. Several years later, Ms. Kelly was able to secure a credible and thorough Form-1 based on a review of incurred services and the extensive records. Noting the Schedule’s purpose is to provide timely assistance to those in need, and the benefit in the context of the entire scheme, the Arbitrator found “Ms. Kelly’s case demonstrates the folly of…requiring an injured person in every circumstance to complete all the paper work including a Form 1 before incurring any attendant care expenses.” (Emphasis added.)

39. Thus the Kelly decision allowed a retroactive Form-1 in a specific situation – i.e. where urgency and impracticability prevented compliance with s. 42(5). To have held otherwise would have produced an absurd result: a person most in need of immediate care, but unable to request it because of that same need, would be denied the benefit. However, to allow all retroactive claims would render s. 42 meaningless.

40. In application to this case, the factors in Kelly (or any other factors or arguments) are not present to allow a retroactive Form-1 over the language in s. 42(5). First, the Form-1 does not establish a retroactive need for AC prior to the 2015 fall or surgery, thus, the period meaningfully in dispute is after the October 2015 surgery.¹²

41. Second, there was no urgency or impossibility or impracticability of compliance with s. 42(5). In fact, the Form-1 process was started prior to the surgery, and the Fom-1 completed in November 2015, yet not submitted until March 1, 2016. No reason was provided for the delay. While the applicant was diagnosed with various psychological impairments and had a high risk pregnancy, there is no evidence that she was incapacitated, had a prolonged hospitalization or that anything prevented her from submitting the Form-1 months earlier. Third, the applicant was already receiving ACB at the time of the accident due to a prior accident, making it difficult to conclude the applicant did not know of the requirement following the accident, prior to the surgery or after the surgery.

Is the Applicant entitled to ACB for the period following the submission of the Form-1 to the Insurer – i.e. from March 1, 2016 to December 29, 2016? And if so, what amount of ACB would the Applicant be entitled to?

42. The Respondent raised a number of issues that relate to this period of time, including (1) the applicant made a number of statements to various assessors about how she doesn’t need ACB, (2) the ACB claimed is really just a housekeeping and caregiving benefit in disguise and/or for the benefit of the applicant’s daughter, (3) the benefit claimed does not match the PSW’s claim forms/records, including that the forms show a decrease in the amount of the benefit used, and (4) some concerns with who actually preformed the services.

43. The applicant states, in part, that (1) even if various family members helped during relevant periods, the OCF-6 forms of Brenda Williams show the services in fact performed by Brenda Williams, and (2) Dr. Kopyto’s IE opinion that the applicant’s knee was normal, and Mr. Sharma’s OT Report which relies on Dr. Kopyto’s IE, should be given little weight as Dr. Kopyto is not an orthopaedic knee specialist.

44. I give some weight to the applicant’s criticism of Dr. Kopyto’s March 14, 2016 IE assessment. Specifically, given the applicant’s long history of trauma and impairment to her knee including a recent surgery by an orthopedic surgeon, it is unclear why she was not examined by an orthopedic surgeon. Thus, I give less weight to Dr. Kopyto’s conclusion that as of his March 14, 2016 assessment, the knee was “normal.”¹³

45. However, more importantly, the applicant herself reported to Dr. Kopyto that she was independent in her self-care and denied any impairment, also noting that she continues to drive. Likewise, Mr. Sharma’s Report from his April 18, 2016 assessment noted that the applicant advised that the personal support worker’s hours (PSW) had been reduced to 2 times a week, for 2-3 hours per visit, and that the services included all housekeeping tasks, laundry for her and her daughter, and walking or driving her daughter to school. Thus, of the 4-6 hours per week, much of that time is for services related to the applicant’s daughter.

46. Thus, even if the surgery was related to the accident which I found it is not, then the applicant’s claim would be limited to 8 to 12 hours for some attendant care from March 1, 2016 to March 14, 2016. Of those 8 -12 hours, the applicant would be limited to hours that are related to AC, not housekeeping or caregiving tasks.

47. While the actual form of the mandated Form-1 lists a section for apparently housekeeping activities, leaving an area of overlap and confusion with the Housekeeping Benefits in some cases, I do not need to address that issue in this matter. The applicant herself has stated that at least some of the PSW’s benefits are specifically with regard to the applicant’s daughter, including taking her to school. A review of PSW’s records in and around March 2016 does not delineate that time, and the only apparently “self-care” task listed is helping with the applicant’s hair, the rest of the activities appear to be housekeeping in nature. The schedule of 2-3 hour visits 2 times a week (3 times per the PSW’s records) further appears to me, in context, to be consistent with housekeeping visits, not ACB. Based on the records provided, the applicant has not established that the PSW’s services of March 2015 were Attendant Care in nature, regardless of the accident to which they relate.

Is the Respondent liable to pay the ACB given the Applicant’s failure to attend the EUO?

48. S. 33(6) of the Schedule provides that “the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with [a request for an EUO]”. S. 33(7) provides the non-liability does not apply if the insurer fails to provide proper notices and s. 33(8) provides that if the applicant subsequently attends the EUO and “provides a reasonable explanation for the delay complying with the subsection” then the amounts withheld shall be paid.

49. In this case, the applicant acknowledged that an EUO was requested and does not allege any procedural non-compliance by the Respondent, but does claim a “reasonable explanation for the delay in complying”. Under the plain language of s. 33, the Respondent is not liable to pay the benefit as the Applicant is in noncompliance. However, as the applicant advises she is willing to attend, but will only do so after her pregnancy, the conditions set forth in s. 33(8) dealing with subsequent compliance have not yet been met, and is thus premature. Thus, while s. 33(6) appears to be triggered based on the record before me, I make no finding on whether the applicant has a reasonable excuse but leave open the possibility that she does.

Conclusion

50. While I accept that the applicant did need Attendant Care for a period of time following her October 2015 surgery, she has not met her onus in establishing her claim for a number of reasons.

51. I find that the ACB claimed is only related to the October 9, 2015 knee surgery, not before. However, the applicant has not established that the July 8, 2015 Fall and the related October 9, 2015 knee surgery are causally related to the 2014 MVA, and thus she is not entitled to the ACB claimed. Even if I was to find it causally related, most of the applicant’s claim is also barred because it relates to services utilized prior to the submission of a timely Form-1. By the time it was submitted on May 1, 2016, based on her own statements, the applicant appears to have been functionally recovered (or at least recovered to the levels she was at immediately prior to this accident 2014 MVA).

52. Again, even if I were to accept some need from May 1, 2016 to Dr. Kopyto’s IE assessment on May 14, 2016, the evidence has not been established that the services during that period are actually ACB services, but rather appear to be housekeeping and caregiving services. Finally, the Respondent raised additional issues, which are moot in light of the rulings above.

Order

53. Pursuant to the authority vested in this Tribunal under the provisions of the Act, the Tribunal directs that the applicant is not entitled to the Attendant Care Benefit claimed for the reasons set forth above.

Released: February 24, 2017

Jeffrey Shapiro, Adjudicator

Footnotes

1. 1See October 16, 2014 note of Dr. Steven Zizzo. Applicant’s Submission Exhibit 4.
2. 2Respondent’s Tab F.
3. 3Applicant’s Exhibit 6.
4. 4Applicant's Reply Submission at page 3 of 4. However, no citation or documents are provided.
5. 5Applicant's Submission at paragraph 11.
6. 6Applicant’s Exhibit 7, page 2 in “Assessment Summary.”
7. 7Respondent Submission at pages 1–2, citing TAB C, Dr. Denker's records (Exhibit 9 of the Applicant's Submission). The Report states “….underneath tear with….,” which I understand to mean “…underneath her with…”
8. 8Respondent’s Submission at page 1 section heading “Causation and Knee cap injury", citing TAB A, Mr. Madan’s OT report, Exhibit 7 in the Applicant's Submissions. The Applicant’s Reply inherently agrees noting that the Respondent funded the assessment “that clearly deals with the attendant care need post-surgery…”
9. 9Exhibit 14 to the Applicant’s Submission and Tab E to the Respondent’s Submissions. I note that the cover letter dated April 22, 2016 precedes the Report which was “Finalized” on May 1, 2016.
10. 10Exhibit 14 to the Applicant’s Submission and Tab E to the Respondent’s Submissions. I note that the ACB since the accident appears to be from the Form-1 issued in respect of the 2013 MVA.
11. 11Although the ruling in this issue resolves the dispute in favor of the Respondent, I will, nevertheless, address the remaining issues raised in this matter.
12. 12A related issue is that the existence of the prior Form-1 makes allowing retroactive Form-1 for periods prior to the surgery even more difficult, as the retroactive Form-1 would need to – but does not – clearly navigate when and why the first Form-1 ends and the now retroactive Form-1 begins.
13. 13Applicant's Submission at paragraph 15.