Tribunal File Number: 16-001348/AABS
Case Name: 16-001348 v The Guarantee Company of North America
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:
Applicant
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances:
Applicant: P.K.
Counsel for the Applicant: Michael Wade
Counsel for the Insurance Company: Hermina Nuric
In-Person Hearing: December 19, 2016
I. Overview:
The applicant, was injured in an automobile accident on July 12, 2004, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 (the ''Schedule'').
As a result of the accident, the applicant sustained a moderate traumatic brain injury and met the criteria for a catastrophic designation.
Prior to the accident, the applicant owned his own business and worked 60-70 hour weeks as an insurance broker and consultant to many firms. At the time of the accident, he was married with two young children.
According to the applicant, following the accident, the applicant continued to work at a reduced capacity, but due to his cognitive deficits he was not able to meet work demands. He sold the business in 2015 and as part of the sale agreement; the applicant was to provide consultation services for a period of two years. He is currently working as a consultant for his previously owned company and this arrangement will end in 2017.
In 2015, the applicant moved with his wife and two children to Scotland, but he returns to Canada every other month in order to provide consulting services his previously owned company. While in Canada, the applicant lives alone in an apartment owned by his sister in Mississauga, Ontario.
On February 9, 2015, the applicant submitted medical benefits claims, specifically, a desk for $355.94; a high back office chair for $1,005.70 and a mattress for $1,078.23.
On November 17, 2015, the applicant submitted a claim, completed by Corry Kreindler, Occupational Therapist, for attendant care benefits (ACBs) in the monthly amount of $1,117.74. The respondent agreed to pay ACBs for $1,117.74 starting November 17, 2015 up until the respondent received an insurer examination reports. The applicant was receiving attendant care services from a personal support worker from Bayshore Health in Mississauga.
The applicant underwent an insurer attendant care assessment with Mr. Johnathan Kaine, Occupational Therapist, on February 20, 2016. Mr. Kaine reported that the applicant suffered from a minor cognitive impairment that required attendant care assistance for $135.84 per month. As a result of this assessment, the respondent stopped paying ACBs for $1,117.74 on April 2, 2016.
The respondent submitted that the reduced ACBs benefits were also in addition to the assistance that the applicant was already receiving from Mr. Peter Vandenburg, rehabilitation support worker, three days a week, and housekeeping and home maintenance assistance that he was receiving from a housekeeping service while in Mississauga.
The respondent partially denied ACBs because the applicant has not established that these benefits are required as a result of the July 4, 2004 accident. Causation is an issue. The respondent also submitted that the applicant’s needs, for what is largely housekeeping assistance, have arisen due to the changes in his living circumstances and not as a result of the accident.
Regarding the cost of the chair, desk and mattress, the respondent submits that these items are not reasonable and necessary. The furniture is for the applicant’s apartment in Mississauga and he would have had to purchase these items even if the accident had not occurred.
I find that the applicant’s need for ACBs arose as a result of the accident and he is entitled to ACBs in the monthly amount of $666.23, but not for the period claimed, April 2, 2016 to December 19, 2016. I also find that the medical benefits, chair, desk and mattress, are reasonable and necessary because the need for these items are result of the accident.
II. Issues:
Is the applicant entitled to attendant care benefits in the amount of $1,117.74 per month for the period starting on April 2, 2016 to December 19, 2016?
Is the applicant entitled to a medical benefit for $355.94, for an office desk recommend by Corry Kreindler in a treatment plan dated February 9, 2016, denied on February 23, 2016?
Is the applicant entitled to a medical benefits for $1,005.70 for a high back office chair recommended by Corry Kreindler in a treatment plan dated February 9, 2016, denied on February 23, 2016
Is the applicant entitled to a medical benefit for $1,078.23, for a mattress recommended by Corry Kreindler in a treatment plan dated February 9, 2016, denied on February 23, 2016?
Is the applicant entitled to the interest on any overdue payment of benefits?
III. Result:
I find that the appropriate amount for the ACBs to be in the amount of $666.23. However, since the applicant was not receiving and/or paying for those services from April 2, 2016 to December 19, 2016, the respondent is not required to pay ACBs for that time period.
The applicant is entitled to all claimed medical and rehabilitation benefits.
The applicant is entitled to the interest on overdue payment of benefits.
IV. Analysis:
a) Is the applicant entitled to ACBs in the amount of $1,117.74 per month for the period starting on April 2, 2016 to December 19, 2016?
Under section 16 of the applicable Schedule, the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.
The applicant asserts that he requires an aide or attendant to assist him in his personal care needs, such as cueing/prompting for refilling his medication, scheduling, attending medical appointments, grocery shopping, meal preparation, laundry and other activities of daily living.
This claim is supported by a Form 1 and reports completed by Ms. Kreindler.
The respondent submits that the appropriate amount of attendant care needs is $134.84 per month in accordance with the Form 1 completed by Mr. Kaine on February 20, 2016.
The respondent submits that the applicant has not met the burden of proof to establish, on the balance of probabilities, that he has required and received attendant care needs in the monthly amount of $1,117.74 since April 2, 2016 as a result of the July 12, 2004 accident.
The respondent’s position is that this arrangement, and the associated need for assistance, would have existed even if the accident had not occurred. The respondent is of the view that this assistance is more appropriately claimed as housekeeping and home maintenance benefit rather than an attendant care benefit. Further, the respondent asserts that the applicant’s need for what is largely housekeeping assistance has arisen due to a change in living situation because of his move to Scotland and not a result of the accident.
Findings
- First, I need to determine whether the applicant’s need for ACBs is as a result of the accident. Second, if his need for ACBs is as a result of the accident, are the benefits reasonable and necessary?
a) Is the applicant entitled to ACBs as a result of the accident?
The applicant’s attendant care needs were first assessed after the accident on September 27, 2005 by Ms. Kay Sellars, occupational therapist, on September 27, 2005. Ms. Sellars assessed the applicant’s monthly attendant care needs to be $0 at that time. The respondent argues that the applicant’s health has not deteriorated since 2005 and, further, the applicant indicates in his examination under oath on October 4, 2016 that his health has remained the same.
I am of the view that the applicant’s health has not deteriorated since 2005, and he has always required assistance in his completing his daily tasks. However, what has changed since that time, are the applicant’s available support systems and living circumstances.
In Ms. Sellars’ report dated September 27, 2005, she indicated that the applicant had difficulty organizing his work throughout the day and experienced short term memory difficulty, but he used compensatory strategies, such as a to-do-list, with varying degrees of success. The applicant regularly used his assistant and/or family to cue him to ensure he completed tasks. Ms. Sellars also reported that the applicant worked better in the morning, when he was less fatigued.
Many of the issues regarding fatigue, short term memory and organization are issues that the applicant continues to struggle with as reported by Dr. Emilie Newell, Physiatrist, Dr. Bonnie H. McDonald, Psychologist, and Ms. Kreindler, Occupational Therapist. The respondent does not deny that the applicant experiences these challenges in his daily living.
In my opinion, the applicant’s health has not changed, but his support system has changed since 2005. At the time of the 2005 assessment, the applicant had support from his family and office staff regarding organizing his daily activities.
I find that the applicant’s needs are a result of the accident. His needs have not changed since 2005, but the applicant had more daily support helping to complete his daily tasks. In 2015, the applicant moved his family to Scotland and he comes to Canada every other month for business. When the applicant is in Canada, he does not have a support system for managing his daily activities, other than Mr. Vandenberg, rehabilitation support worker. As such, his need for assistance has become more evident.
The respondent argues that the applicant’s move to Scotland is unrelated to the accident. The respondent asserts that the applicant’s need is largely housekeeping and the applicant’s current living circumstances, while living in Mississauga, and the associated need for assistance would have existed even if the accident had not occurred. The respondent also submits that the applicant has been in other motor vehicle accidents, although minor, that may have contributed to his current impairments.
I find it irrelevant whether the applicant moved and the reason for that move. His move is not a factor to determine his eligibility to ACBs. Irrespective of where the applicant resides, the issue is whether his impairments prevent him from completing the activities of his daily life. The respondent has also provided some theories regarding whether the applicant’s current injuries are result of another accident. They have not provided any evidence to prove that those accidents are the cause of his current impairment. I am satisfied that the applicant has sufficiently met the burden of proof and I find that the applicant’s current attendant care needs are a result of the accident.
b) Are the ACBs reasonable and necessary?
Ms. Kreindler is a qualified occupational therapist with 18 years of clinical experience. She has been working in the area of personal injury since 2007. Presently, she is employed as a community-based Occupational Therapist with FunctionAbility Rehabilitation services. Her current case load consists of individuals suffering from orthopaedic injuries and traumatic brain injury.
On October 23, 2015, Ms. Kreindler filled out an assessment of attendant care needs (Form 1). In that assessment, Ms. Kreindler indicated that the applicant required assistance in the areas of feeding, hygiene, exercise, medication management and coordination of attendant care in the monthly amount of $1,117.74. In Ms. Kreindler’s testimony, Ms. Kreinder indicated that her assessment did not take into account what services that the applicant is receiving. Her position is that the Form 1 only outlines what the applicant’s needs are.
The respondent had the applicant reassessed regarding Ms. Kreindler’s findings by Mr. Kaine. Mr. Kaine is an occupational therapist with several years of experience working with patients with acute traumatic brain injury. He also works within the auto sector performing independent occupational therapy functional assessment including, attendant care assessments, in-person examinations, job site assessments and file reviews.
On February 20, 2016, Mr. Kaine filled out a Form 1 for the applicant. Mr. Kaine found that the applicant presented with “cognitive challenges such as reduced initiation, distractibility, decreased organization, and short-term memory difficulties necessitating three hours per week of cueing assistance with food preparation for a total monthly benefit of $135.84.” Mr. Kaine indicated that this monthly amount was on top of the assistance that Mr. Vandenberg was providing.
I find that both Ms. Kreindler and Ms. Kaine are experts in their field of practice. The respondent indicated that Mr. Kaine has more experience filling out Form 1 assessments. Irrespective of this experience, I am of the view that Ms. Kreindler is sufficiently qualified to fill out these forms and I will not be placing more weight on Mr. Kaine’s assessment on that basis.
I acknowledge that Mr. Kaine assessed the applicant on one occasion for a two to three hour period and did a two hour review. He reviewed approximately 10 documents out of approximately 99 documents. In contrast, Ms. Kreindler assessed the applicant on three occasions for a two to three hour period and did a much more extensive file review than Mr. Kaine. It is not disputed that the Ms. Kriendler’s review was more extensive.
For those reasons, I have placed more weight on Ms. Kreindler’s assessment.
I will now evaluate whether the ACBs are reasonable and necessary.
Regarding feeding, Ms. Kreindler indicated that the applicant requires 75 minutes of assistance, seven times per week. In contrast, Mr. Kaine indicated that he required 60 minutes of assistance three times per week. The rationale for Mr. Kaine’s assessment is that the applicant often goes out for lunch and dinner with clients. As such, he does not need more assistance than what he had allotted.
According to Ms. Kreindler and Mr. Vanderberg, the applicant often forgets to eat and requires regular cueing to do so. In the applicant’s affidavit, he indicated that he normally forgets to eat or lacks the initiative to eat, and, as such, he finds himself eating junk food in place of a proper meal. The applicant also indicated that when he cooks, he often forgets to turn off the element and does not feel comfortable cooking. When the applicant does cook, he is restricted to cooking one item at a time, because he is unable to multi-task the preparation of various components of a meal. I do acknowledge that the applicant does eat out sometimes for business lunch and dinners; however, this practice should not prevent him from getting regular assistance for meal preparation. I find that the applicant requires daily assistance in the preparation for lunch, dinner and healthy snacks. As such, I accept Ms. Kreindler’s allotted time for feeding is reasonable and necessary.
Regarding hygiene, I accept Ms. Kreindler’s assessment that due to the applicant’s fatigue, low motivation and initiation, he requires assistance with respect to hygiene (i.e. cleaning the bathroom, changing sheets and hanging and laundering clothes). At the time of the assessment, the applicant’s bedroom was disorganized and he had his clean clothing in his suitcase and laundry on the floor. In Mr. Vandenberg’s notes, he also indicated that the applicant required motivation and cueing in these areas. The respondent argues that these hygiene issues are covered under housekeeping. I am of the view that housekeeping is a weekly service. The applicant requires daily assistance in this area. As such, I find that that those services should be recoverable under attendant care benefits.
However, I am not persuaded that the applicant requires additional assistance regarding “comfort, safety and security” for his hygiene practices given that he gets supports from Mr. Vandenberg. Ms. Kreindler indicates that the applicant requires ongoing emotional support to cope with his functional changes. I am of the view that Mr. Vandenberg provides sufficient support in this area. As such, I do not find that this service to be reasonable and necessary.
Based on the evidence, I am of the view that the applicant requires additional assistance, beyond the assistance that Mr. Vandenburg provides in the areas of exercise and medication intake. Additional assistance is required in order to carry out the applicant’s exercise routine in a structured manner and provide reminders to take his medication. Regarding the exercise, the respondent submits that applicant indicated that he prefers clinic based exercise and that he would not perform exercises at home, even if prompted by a service provider. First, even if the applicant prefers clinic based exercises that would not preclude him from receiving assistance in this area. Second, Mr. Vandenburg has been regularly assisting the applicant with exercises at home. I accept Ms. Kreindler’s assessment in this regard.
Given that I have approved services regarding feeding, hygiene, exercise and medication intake, I find that Ms. Kreindler’s assessment of the applicant’s need for co-ordination of attendant care to be reasonable.
I have recalculated the attendant care costs. Part 1 and Part 3 remain at $396.19 and $240.45, respectively. Part 2 has changed from $481.10 to $29.59.
| Total Minutes Per Week | Total Hours Per Week | Total Monthly Hours | Hourly rate | Monthly care benefit |
|---|---|---|---|---|
| 59 | /60= 0.983 | X 4.3 4.23 | x 7.00 | 29.59 |
- I find that the total monthly amount of attendant care benefits is $666.23
c) Are these benefits payable under a medical rehabilitation benefit?
The respondent submits that subsection 16(2) of the Schedule does not apply to expenses for which payment may be obtained under the medical and rehabilitation benefits under section 14 and 15 of the Schedule, in accordance with section 16(3) of the Schedule.
I find that this is not the correct interpretation of subsection 16(3). This section only applies to payment regarding transportation costs under medical and rehabilitation benefits and costs of examinations. As such, the applicant is only required to show that the ACBs are reasonable and necessary. There is no requirement to determine whether these benefits should be paid under a medical and rehabilitation benefit.
d) Have the benefits been incurred?
In order to determine whether the benefits have been incurred, first, I must establish what does incurred mean under section 16 of the Schedule. Second, I must also establish what kind of information the respondent may require in order to pay an attendant care benefit under section 16 of the Schedule.
My plain reading of section 16 of the Schedule is that there must be a need and the provision of services in order for the benefit to have been incurred. The applicant has only provided a Form 1 to show his entitlement to the ACBs. In the applicant’s submissions, he indicated that after April 2, 2016, he put the services for the personal support worker on hold, as the respondent reduced payment of his ACBs from $1117.74 to $135.84. As such, there is no dispute that the applicant was not receiving or paying for attendant care services between April 2, 2016 and December 19, 2016.
The respondent’s position is that a Form 1 submission is a required step in the application process, but it is not sufficient to warrant payment.
Although I am not bound by FSCO case law; I found the following preliminary issue decision helpful in order to determine whether the benefits have been incurred. In McNight and Guarantee Company of North America (FSCO A02-00299, October 28, 2003), Arbitrator Skinner determined the following:
There must be a both a need for services and the provision of services in order for an expense to have been incurred within the meaning of section 16 of the Schedule.
A Form 1 identifies attendant care needs, but does not constitute evidence that expenses have been incurred.
The documentation reasonably required will depend to a large degree on the circumstances of each case.
Following the above interpretation, while the applicant has provided a Form 1, he would also need to provide me an invoice from a service provider, or some similar document, to establish that the expenses have been incurred between April 2, 2016-December 19, 2016. I did not receive any such documentation at the time of the hearing from the applicant.
As such, I find that the applicant is entitled to ACBs in the amount of $666.23 a month, but there is no evidence before me that this was incurred from April 2, 2016 to December 19, 2016, date of the hearing.
e) Is the applicant entitled to medical benefits for a chair, desk and mattress?
Ms. Kreindler had been working with the applicant for several months. According to Ms. Kreindler’s report dated February 3, 2016, she indicated that the applicant suffers from fatigue, distractibility and poor attention which negatively impact his mood and his ability to carry out his activities of normal living.
In the applicant’s apartment in Mississauga, Ms. Kreindler noted that the applicant was sleeping on an old single mattress causing disruptive sleep. In addition, the applicant did not have dedicated office space. As such, he was working while seated on a low sofa and supporting his laptop on a coffee table. The applicant’s paperwork was disorganized and the printer/scanner was on the floor in the living room.
In order to address the applicant’s sleep and organization issues, Ms. Kreindler recommended a mattress, high backed office chair, and office desk and a filing cabinet.
The applicant submits that the mattress is necessary and reasonable because it would help with his fatigue and productivity. Ms. Kreindler indicated that research has found that sleep is associated with improvement in energy levels, pain levels, mood and concentration. Chronic sleep deprivation can lead to mood disorders, heart disease, obesity and diabetes.
Regarding the desk and chair, the applicant asserts that these items are reasonable and necessary in order to address his organization problems and to prevent further aggravation of his physical injuries from the accident.
In the applicant’s affidavit, he indicated that he works many hours in front of a laptop which is placed on a coffee table. As a result of this setup, the applicant leans forward while sitting on a couch, causing considerable back pain and aggravation of his upper back pain. He has had to go to physiotherapy to address his lower back pain.
The respondent approved the purchase of a filing cabinet to assist the applicant to improve his organization.
The respondent partially approved the treatment plan dated January 29, 2016. The respondent’s position is based on Mr. Kaine’s report dated March 14, 2016. Mr. Kaine indicated that the applicant “presents with and endorses signs of cognitive impairment with organization, which would necessitate a filing cabinet to assist with storing client files for his job as well as organizing other paperwork.”
Mr. Kaine found that the other recommended office equipment, including a desk, and office chair and a mattress were not reasonable and necessary as the applicant did not show signs of impairment and none of the medical documents that he reviewed demonstrated any impairments.
I have considered the evidence provided by both parties and I find that the medical benefits are reasonable and necessary.
There is sufficient evidence to support that the applicant suffers from fatigue and disorganization. In a consultation note dated December 20, 2005, Dr. Emilie Newell, Physiatrist, indicated that the applicant “is having a really tough time with fatigue and with all the demands of planning, organizing and using all of his various strategies. In Dr. Newell’s consultation note dated February 4, 2010, she indicated that the applicant reported still having difficulties organizing himself and takes him a lot longer to do tasks. In Dr. Bonnie H. MacDonald’s psychological report dated March 3, 2016, she indicated that the applicant, as a result of the accident, suffers from “depressive disorder with psychological impairment of diminished energy fatigue, loss of interest, in an addition to problems with adaptive functioning and low stress tolerance.”
From a physical perspective, the applicant indicated in Dr. MacDonald’s report that he lives relatively pain free since the accident. The applicant did not bring to my attention any physical impairment necessitating these medical benefits. To my knowledge, there is no evidence that the applicant’s back pain is related to the accident, but rather the pain can be attributed to the applicant sitting on an uncomfortable sofa and lying on an old bed.
However, I am satisfied that the applicant suffers from fatigue and disorganization as result of the accident. In Dr. Kaine’s report, he acknowledged that the applicant lacks the cognitive ability to organize himself and approved the purchase of a filing cabinet. In my view, the use of a dedicated work space is also an organizational tool. If the applicant continues to work on the coffee table, his paperwork will be scattered facilitating continued disorganization. A dedicated work surface such as a desk will assist the applicant in becoming more organized. A desk is not useful unless there is a chair to accompany it.
The same rationale that Dr. Kaine used to approve the filing cabinet is applicable to the desk and chair.
Regarding the mattress, the applicant suffers from fatigue as a result of the accident. I am of the view that a more comfortable mattress will help the applicant get a better night’s sleep and reduce the impact of his daily fatigue.
The respondent argues that the applicant would have had to purchase a desk a chair, and a mattress irrespective of the accident. However, the applicant has shown that his needs for these medical benefits are directly related to the subject accident.
As such, I approve the purchase of the desk, chair and mattress as they are reasonable and necessary for the applicant to address his fatigue and disorganization.
V. Order:
I order the following:
The applicant is not entitled to attendant care benefits in the amount of $666.23 per month for the period claimed from April 2, 2016 to December 19, 2016, as there is no evidence that the benefits have been incurred.
The applicant is entitled to a medical benefit, for $355.95, for an office desk.
The applicant is entitled to a medical benefit, for $1005.70, for a high back office chair.
The applicant is entitled to a medical benefit, for $1,078.23, for a mattress.
The applicant is entitled to the interest on overdue payment of benefits.
Released: March 15, 2017
Nicole Treksler,
Adjudicator