Tribunal File Number: 16-000552/AABS
Case Name: 16-000552 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:
Y. Y.
Applicant
and
Unica Insurance Inc.
Respondent
ADJUDICATOR: Jeanie Theoharis
APPEARANCES:
Applicant: YueHong Yang
Legal representative for the applicant: Wei Guo
Counsel for the respondent: Olga Zemlinsky
Representative for the respondent: Anna Marie Rabaya
Court Reporter: Megan Tay
Mandarin Interpreter: Chang Zhang
HEARD at the Licence Appeal Tribunal on November 17, 2016 and December 14, 2016
REASONS FOR DECISION AND ORDER
OVERVIEW
The applicant was injured in an automobile accident on January 12, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ‘Schedule’).
The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the ‘Tribunal’). The parties participated in settlement discussions at the case conference but were unable to resolve the issues in dispute.
A hearing was held at the Licence Appeal Tribunal on November 17, 2016 and December 14, 2016.
PRELIMINARY ISSUES:
The applicant requested to add the following two issues to their application:
Is the applicant entitled to interest on the overdue payment of benefits?
Is the applicant entitled to receive a special award?
The applicant’s request to add the two issues noted above was denied. The applicant made no effort to inform the respondent prior to the hearing that she wanted to add the issues. The respondent submitted that it would be unfair to add the issues at this stage because this is the first instance that it is aware of them, and it is not able to properly address them today at the hearing.
I find that it would not be fair to add the issues at this stage of the proceedings because the respondent was not provided notice of the issues, nor is it in a position to respond to the issues. The issues the applicant seeks to add at the hearing were not raised at the case conference and are being raised for the first time at the hearing. The prejudice to the respondent in not being aware of the issues, and not having an opportunity to respond and defend its position on these two issues outweighs the applicant’s interest to address the issues within the framework of this application. The applicant’s request to add the two issues is denied.
The respondent raised a preliminary issue requesting the applicant’s daughter’s affidavit evidence be excluded because the applicant’s daughter is not available to be cross-examined on her affidavit. I was advised that the applicant’s daughter just had a baby and was unable to attend to be cross-examined.
The applicant agreed to withdraw her daughter’s affidavit evidence. The affidavit was not considered.
ISSUE
The issue in dispute was identified and agreed to as follows:
- Whether the applicant received attendant care services by a personal support worker between January 12, 2016 and March 4, 2016?
RESULT
The applicant’s claim for attendant care benefits for services provided by a personal support worker during the period January 12, 2016, to March 4, 2016, is dismissed.
FACTS
The applicant was in a motor vehicle accident on January 12, 2016, and sustained injuries as a result. The applicant was at Sunnybrook Hospital from January 12 - 18, 2016, at Scarborough General Hospital from January 18 - February 4, 2016, and thereafter transferred to Providence Rehabilitation Centre where she remained until March 4, 2016. The applicant was released from the hospital/care facility on March 4, 2016. Since that time she has been receiving attendant care services from a personal support worker who attends at her home.
The applicant asserts that from January 12, 2016, to March 4, 2016, the applicant’s daughter and a personal support worker provided attendant care services to the applicant. In this application the applicant is claiming attendant care benefits only with respect to the attendant care provided by the personal support worker for the period from January 12, 2016, to March 4, 2016. It is not disputed in this application that after the applicant’s release on March 4, 2016, the personal support worker has provided attendant care services to the applicant.
From January 12, 2016 to March 4, 2016, the applicant’s daughter stopped working at her job so that she could provide attendant care services to her mother. Pursuant to the provisions of the Schedule, the respondent paid $3,128.48 to the applicant’s daughter for the economic loss sustained while she was providing attendant care services to her mother for the period from January 12, 2016 to March 4, 2016.
Kelly Radley, occupational therapist, completed an Assessment of Attendant Care Needs (Form 1) Report on March 2, 2016, and concluded that the applicant would require 24 hour supervisory attendant care, payable at $8,702.56 per month. The respondent received the completed Form 1 on or about March 2, 2016. While the Form 1 amount is $8,702.56 per month, the maximum benefit payable under the Schedule is $3,000.00 per month.
It is agreed between the parties that there has not been a determination that the applicant sustained a catastrophic impairment as that term is defined in the Schedule, and the applicant did not purchase optional benefits.
It is not contested that the respondent paid the applicant’s daughter $3,128.48 for the attendant care services she provided to the applicant from January 12, 2016 to March 4, 2016.
At issue here is the attendant care benefit at $3,000.00 per month, less the amounts the respondent already paid for attendant care services to the applicant’s daughter, $3,128.48, for the period from January 12, 2016, to March 4, 2016.
THE LAW
The applicant has the burden to establish a right to recover the attendant care benefits. Pursuant to section 19 of the Schedule, an insurer is required to pay for all reasonable and necessary expenses that are incurred by an insured person as a result of the accident for services provided by a personal support worker. The amount of a monthly attendant care benefit is determined in accordance with the Assessment of Attendant Care Needs (Form 1). In the present case, since optional benefits have not been purchased, and there has not been a determination that the applicant sustained a catastrophic impairment, the amount of the attendant care benefit shall not exceed $3,000.00 per month.
Moreover, the attendant care benefits have to be incurred in accordance with section 3(7)(e) of the Schedule. Section 3(7)(e) states that an expense related to attendant care services is not incurred by an insured person unless, (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, did so in the course of his or her regular occupation or profession.
APPLICATION OF LAW TO FACTS
It is the applicant’s position that the personal support worker provided the applicant attendant care services from January 12, 2016, to March 4, 2016; and that the personal support worker worked Monday to Friday, for 8 hours each day for a total of 39 days during this period of time. The applicant seeks the attendant care benefits in the amount of $3,000.00 per month, less the attendant care benefit already paid to the applicant’s daughter for the attendant care services she provided to the applicant during the same time period.
The respondent submits that the personal support worker did not provide attendant care services to the applicant from January 12, 2016, to March 4, 2016, or in other words that the applicant did not receive the goods and services to which the expense relates.
For the reasons that follow, I find that the applicant has not satisfied the onus to prove that the personal support worker provided attendant care services to the applicant from January 12, 2016, to March 4, 2016. The applicant has not established that the attendant care services claimed to have been provided by the personal support worker were incurred for the period from January 12, 2016 to March 4, 2016.
Applicant’s Evidence
The applicant clearly articulated that her daughter was unable to provide attendant care services without assistance. However, the applicant was vague in regard to when the personal support worker provided services and what services the personal support worker provided during January 12 to March 4, 2016. She testified that her family organized her attendant care needs while she was in the hospital or rehabilitation clinic. Although she testified that the personal support worker provided services on a daily basis for 8 hours per weekday from January 12, 2016, to March 4, 2016, she was not convincing when she was questioned about this on cross-examination.
For instance, she testified that to her knowledge her counsel arranged for the personal support worker to provide services as of January 12, 2016. However, a hospital note indicates that as of January 15, 2016, the applicant did not have counsel yet.
Also, the applicant’s assertion is contradicted by her sworn statutory declaration dated February 28, 2016. The applicant’s declaration indicates that since the accident her daughter has been providing attendant care services. The applicant testified that her legal representative prepared the statutory declaration. The statutory declaration does not indicate that the applicant received attendant care services from the personal support worker from January 12, to March 4, 2016.
Thirdly, two occupational therapy reports indicated that a personal support worker would begin or began after the applicant was discharged from the rehabilitation centre on March 4, 2016. The applicant indicated that she was always truthful when speaking with her assessors.
The Assessment of Attendant Care Needs (Form 1) Report authored by Kellie Radley on March 2, 2016, indicates that she would assist with discharge planning, including assessment of the applicant’s attendant care needs. On March 1, 2016, she met with the applicant and the applicant’s daughter to complete the assessment for attendant care needs as required for discharge upon the applicant’s return home. The therapist, in completing the attendant care assessment, also had input from the applicant’s treating occupational therapist, Eva Wong, and the applicant’s treating physiotherapist, Kim Garland. The report indicates that on March 2, 2016, the therapist made initial contact with Essentially You to determine if the company had Mandarin speaking Personal Support Workers (PSW) in the applicant’s area to assist with the applicant’s attendant care needs upon discharge. Moreover, Ms. Radley, in an email dated March 2, 2016, emailed the respondent to discuss her findings after meeting with the applicant. The March 2, 2016, email from Kellie Radley to the respondent indicates that for the applicant’s discharge scheduled for March 4, 2016, the applicant requires a Mandarin speaking personal support worker and that she made some initial contacts with various personal support worker companies to assist in this regard. Kellie Radley noted that the Mandarin speaking personal support worker she intends to hire would start on Monday, March 7, 2016, because the applicant’s “family asked for family time together this weekend following discharge.”
Moreover, Elsa Poon, an occupational therapist, met with the applicant and her daughter on October 1, 2016. Ms. Poon authored an Occupational Therapy Functional Assessment Report dated October 11, 2016. The report indicates that the assessment was conducted in Mandarin. Ms. Poon noted in her report that the applicant receives assistance from her husband and daughter, and since being discharged is also receiving private personal support worker assistance on almost daily basis.
The applicant did not provide a reasonable explanation why she, her daughter, or her health practitioners did not indicate to Ms. Radley in March 2016 that she already had a Mandarin speaking personal support worker; why her statutory declaration dated February 28, 2016, did not mention that she was receiving attendant care services from a personal support worker during January 12, to March 4, 2016; or why Ms. Poon’s report dated October 2016, indicates that the applicant, upon discharge, received private personal support worker assistance.
When questioned about the discrepancies noted above, the applicant merely indicated that it may be in error and that the assessors probably did not ask her directly if she had a Mandarin speaking personal support worker from January 12 to March 4, 2016. I find it unlikely that, if the applicant had the services of a Mandarin speaking personal support worker from January 12, 2016, as she alleges, she would make such contradictory statements to Ms. Radley, Ms. Poon and in her statutory declaration.
Applicant’s Son’s Evidence
The applicant’s son also testified to support the applicant’s position. The applicant’s son provided a sworn affidavit dated November 4, 2016. He indicated that the applicant’s legal representative typed the affidavit after having spoken with him, and he signed the affidavit after the contents of the affidavit had been explained to him. I find the applicant’s son’s evidence does not support the applicant’s position that a personal support worker provided her assistance from January 12 to March 4, 2016. The son’s statutory declaration indicates that the personal support worker provided the attendant care services to the applicant while she was at the hospital. However, there is no indication how he knew what services his mother was receiving and from whom, because he only visited his mother on the weekends. The evidence presented at the hearing is that the personal support worker only worked with the applicant Monday to Friday. The applicant’s son testified that he would visit his mother on the weekends only, because he worked Monday to Friday. I do not find his evidence on this matter of assistance because he did not have direct knowledge of who was providing services to his mother, and what services were being provided to his mother.
Personal Support Worker’s Evidence
The personal support worker testified that she has been a personal support worker for approximately 10 years and started her own business in 2014. She testified that she provided attendant care services to the applicant from January 12, 2016 to March 4, 2016, at least 8 hours a day Monday to Friday, and that she would start at approximately 11:00 a.m. to noon, and work till 5:00-6:00 p.m. Monday to Friday. She would add approximately 1-2 hours of travel time daily, and that is how she reached her 8 hour work day.
I find that the personal support worker’s evidence was unreliable. In particular, there were many discrepancies in her evidence regarding her employment as claimed.
The personal support worker provided the respondent with invoices for attendant care services in April 2016. Two sets of invoices were delivered to the respondent; one on April 4, 2016, and another on April 15, 2016.
The April 4, 2016 invoice package listed the attendant care services provided to the applicant for January and February 2016 while at the hospital. The personal support worker’s statutory declaration signed September 21, 2016, also listed the services provided to the applicant, including details about how often the task was performed, the time spent on the task, and where the services was provided. For instance, if a service was provided at both the hospital and at home, the personal support worker noted hospital/home.
In comparing the two lists of services provided for January and February 2016, I note the following discrepancies between the April 4, 2016 list and the statutory declaration list. In particular, the April 4, 2016 list indicates that the personal support worker assisted in helping the applicant get in and out of her wheelchair, to and from the bed, shower and washroom for the months of January and February 2016. However, on the applicant’s statutory declaration, the personal support worker noted that this service was provided to the applicant on a daily basis for approximately 30 minutes per day at the home only. There is no mention that this service was provided to the applicant while at one of the health facilities.
Also, the statutory declaration notes the personal support worker would conduct the following services on a daily basis at the hospital: (i) assist to flip the applicant’s body which took 2 hours per day; (ii) assist with oxygen supply on a daily basis for 10 minutes per day; and (iii) assist with bed pan use for 2 hours per day. However, when challenged that the applicant’s chart indicated that while at Providence Healthcare she was no longer in need of body flipping, not on oxygen and not using a bed pan, the personal support worker offered no clear explanation and indicated that she could not recall clearly because it was a long time ago.
Lastly, the personal support worker testified that she attended at Providence Healthcare Centre from about 11:00 a.m. to noon and would stay till about 5:00 – 6:00 p.m. She indicated that she and the applicant’s daughter shared a parking pass, and that when the daughter left for the day, the daughter would meet with her and give her the parking pass so that she could park her car. The personal support worker indicated that while she worked at Providence, the applicant’s daughter and she would not overlap their stay with the applicant. The personal support worker testified that most often she was there from noon to the late afternoon, and the daughter would attend in the mornings and leave when the personal support worker arrived.
The personal support worker was referred to entries in the Providence Healthcare clinical notes and records which indicate dates and times when the health professionals noted the daughter present with the applicant. There were over a dozen instances in February and March wherein the daughter was observed at the applicant’s bedside and/or in assisting with the applicant’s personal care in the afternoon hours.
The personal support worker acknowledged that this would contradict her testimony that she and the daughter did not overlap their stay at Providence, and that the daughter was there in the morning and the personal support worker was at Providence in the afternoons. The personal support worker initially could not recall the particular days in question, but testified that regardless of the entries, she did provide attendant care services for the applicant on each of those days. She initially explained that the health professionals may have mistaken her for the applicant’s daughter and asserted that the health professionals mistakenly omitted that both she and the applicant’s daughter were providing attendant care needs. She testified in cross-examination that she was born in 1964, and the applicant’s daughter was born in 1985.
I find the personal support worker’s suggestion that the health practitioner’s may have mistaken her for the applicant’s daughter is not reasonable. There is approximately a 20 year age difference between the personal support worker and the applicant’s daughter, and it is unlikely that the two would have been mistaken for each other. I do not find a mistaken identity to be a reasonable explanation as to why the personal support worker is not noted anywhere on the applicant’s clinical notes and records.
On the personal support worker’s evidence as a whole, where her evidence contradicted the hospital records, I accept the hospital records. She could not clarify the discrepancy in the health records that the daughter was providing attendant care services to the applicant; that certain assistance the personal support worker claimed to have done on a daily basis would not have been required because the applicant was no longer on oxygen, using a bed pan or in need of having her body flipped. I consider the health records to be more reliable as they were written at the time of the particular event by disinterested parties. The personal support worker’s documents detailing her recollection of events from January 12 to March 4, 2016, were drafted in April and September 2016, and have been shown to be inconsistent and unreliable.
RESULT
Based upon the analysis above, I find the evidence presented by the applicant, the personal support worker, and the applicant’s son do not support a finding that a personal support worker was providing attendant care services from January 12 to March 4, 2016.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders:
- The application before the Tribunal is dismissed.
Released: March 23, 2017
Jeanie Theoharis,
Adjudicator