Licence Appeal Tribunal
Tribunal File Number: 16-002023/AABS
Case Name: 16-002023 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:
K. B.
Applicant
And
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the Applicant: Adam A. Moras
Counsel for the Respondent: Modupe Egunjobi
HEARD by written hearing: February 13, 2017
Overview
1The applicant was injured in a motor vehicle accident on January 26, 2016. He applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”), including an attendant care benefit.
2Unica Insurance Inc. (“Unica”) and the applicant agree that the applicant is entitled to an attendant care benefit. The issue in this hearing is quantum, which is calculated by determining the economic loss suffered by the attendant care provider. The applicant received attendant care from his mother and, therefore, his entitlement to payment is limited to the economic loss incurred by his mother in providing the care.
Issue:
3What is the quantum of the attendant care benefit to which the applicant is entitled for the period from January 26, 2016 to date, less amounts paid?1 The applicant submits that the rate of payment is $534.79. Unica submits that the rate of payment is less.
Result:
4The applicant has failed to prove that his mother suffered an economic loss within the meaning of section 3(7)(e)(iii)(b) of the Schedule. While he is entitled to an attendant care benefit generally, he is not entitled to a rate of payment of $534.79 for the period from January 26, 2016 to date. My decision does not affect the quantum of payment for an attendant care benefit in the future provided that the applicant incurs an attendant care expense within the meaning of section 3(7)(e) of the Schedule.
Facts:
5The applicant and his mother have the same last name. To distinguish between them, the applicant will be referred to as “the applicant” and his mother as “N”.
6The applicant was severely injured in a motor vehicle accident on January 26, 2016. He was 19 years old at the time of the accident. The accident occurred when the applicant was struck by a motor vehicle while riding his bicycle. N provided attendant care service to the applicant following the accident.
7The applicant seeks payment for the economic loss N suffered while providing her son attendant care services. Specifically, he seeks payment for the economic loss suffered by his mother’s inability to seek employment during the time spent caring for the applicant. N was employed in an administrative capacity at an office for over a year prior to the motor vehicle accident. She was let go from that job on May 7, 2015. N was not employed at the time of the accident. She received employment insurance until March 2016, three months after the accident. During the time period immediately preceding the accident, N was looking for employment. According to her affidavit, she had to stop looking for employment to care for her son.
8N’s psychological condition was adversely impacted by the stress of her son’s accident. On August 10, 2016, N applied for an income replacement benefit from Unica because she developed anxiety and depression. According to her family doctor, Dr. Leventis, N suffers from panic attacks and depression. This requires her to take medication. Dr. Leventis opined that N suffered a psychological impairment which rendered her substantially unable to engage in essential tasks of her employment; additionally, she is substantially unable to engage in the caregiving activities that she was engaged in at the time of the accident. Unica has been paying N an income replacement benefit since her application.
9According to N’s affidavit, she had to forego her search for employment as a result of providing attendant care service for her son.
10Unica has paid the applicant an attendant care benefit at a rate of $315 per week. The applicant submits that the rate should reflect the wage N was earning in her office job prior to being let go. The assertion is that if N was able to search for a job, she would have secured a job of the same level of skill and pay as her previous employment. To this end, the applicant seeks an attendant care benefit at a rate of $534.79, less the amount already paid by Unica.
Discussion:
11The parties agree that the applicant is entitled to an attendant care benefit and the discussion of quantum is limited to s. 3(7)(e)(iii)(b) of the Schedule. That provision provides that an attendant care benefit is incurred only if an economic loss is sustained by the attendant care provider. Section 19(3)(4) of the Schedule limits the amount payable for this benefit the economic loss suffered by the attendant care provider.
12How much economic loss was suffered by N as a result of providing her service to the applicant? The applicant submits that the loss is $534.79. This is what N would have been paid if she was able to look for employment instead of providing attendant care service, and if she found a job that was similar in skill and pay to her last employment experience. In support of this position the applicant cites Henry v. Gore Mutual Insurance Company, 2013 ONCA 480. In that decision, the Court of Appeal for Ontario directed that the term “incurred” should receive a narrow scope to the extent that it restricts coverage to an insured person.
13I agree with the applicant in principle. An attendant care provider can suffer an economic loss within the meaning of s. 3(7)(e)(iii)(b) if they forego the opportunity to search for employment in order to provide care to an insured person.
14In order to apply this principle, several questions:
- Would N have been able to find employment during the time in which she was providing an attendant care service to her son?
- Would N have been able to work at the job given her psychological impairment, which currently renders her substantially unable to perform the essential tasks of her previous employment?
- What would N’s rate of pay have been?
15Looking at all of the evidence, there is no basis upon which I can conclude that any of the questions have a probable answer in the applicant’s favour. For example, I am unable to conclude that N would probably have found employment during the time in which she was providing attendant care service to the applicant. The evidence on this issue is N’s affidavit. Even if taken at its highest, the affidavit demonstrates only that N is confident she would have found a job of the same skill and pay as her previous employment that if she continued her job search after the accident. With great respect, N’s confidence in her ability is not proof of her ability. More is needed: for example, proof of N’s search efforts before the accident and corresponding materials showing the search’s success or progress. Without this evidence, in the specific factual circumstances of this case, I cannot make the findings necessary to decide in the applicant’s favour. I am left to speculate on things that the applicant needs to prove.
16Similarly, I am unable to conclude that N would have probably been able to work at a job if she found employment given her psychological impairment, or that she would have earned anything more per week than what the applicant already receives for his attendant care benefit. Again, proof is needed.
17The applicant’s claim for an increased quantum of payment is dismissed on this ground. He has failed to prove that N suffered an economic loss within the meaning of s. 3(7)(e)(iii)(b) of the Schedule.
18The applicant provided other submissions that do not directly address the legal test for an attendant care benefit. I am not convinced by the submissions. I will discuss them for completeness.
Waiver
19The applicant submits that Unica has waived its right to dispute N’s economic loss. On February 29, 2016, an adjuster, Keneisha Smith, wrote to the applicant on Unica’s behalf advising of examples of economic loss. Of the examples, Ms. Smith included “employment insurance”. In addition, in a letter dated September 26, 2016, Unica advised the applicant that it was paying him an attendant care benefit at a rate “based on the information we have to date”. The applicant submits that Unica’s correspondence implies an acceptance of N’s economic loss claim. In the applicant’s view, Unica has implicitly waived its right to contest N’s claim and cannot do so at this hearing.
20This submission is unconvincing. A plain reading of the evidentiary record in general, and the two letters in particular, makes clear that Unica was providing the attendant care benefit to the applicant in good faith while it awaited further information about N’s economic loss. In the letter dated September 26, 2016, Unica advised that the attendant care benefit rate was “based on the information we have to date.”
21The applicant’s waiver argument is also rejected on policy grounds. The Schedule is designed to facilitate the quick conveyance of benefits to an insured person during their time of need and vulnerability. This extends to attendant care benefits. Accepting the applicant’s submission would create a disincentive for insurers to pay benefits in full in good faith until the applicant provides them with all relevant information.
Unica’s use of information relating to N’s income replacement benefit
22The applicant submits that Unica is prohibited from using information relating to N’s income replacement benefit. The hearing concerns the applicant’s entitlement to an attendant care benefit. In the applicant’s view, Unica should not be allowed to bring in the medical and private information about N’s income replacement benefit. In the alternative, the applicant submits that the information is irrelevant.
23I do not need to dive too deeply into this issue. Assuming without deciding that Unica ought to be prohibited from relying on this information, my decision on the issue in dispute remains the same. I have only relied on the information to the extent that it advises of N’s psychological impairment rendering her substantially unable to perform the essential tasks of her past employment. If I disregarded this information, the applicant remains unable to prove his case.
Conclusion:
24The applicant has failed to prove that N suffered an economic loss within the meaning of s. 3(7)(e)(iii)(b) of the Schedule. He is not entitled to a rate of payment of $534.79 for his attendant care benefit between the period from January 26, 2016 to date.
25This decision addresses the quantum of payment for the attendant care benefit from January 26, 2016 to date. The decision does not address the applicant’s entitlement to an attendant care benefit generally, nor does it preclude or limit the applicant’s ability to seek a higher quantum of payment in the future if he incurs an expense within the meaning of s. 3(7)(e).
Released: April 25, 2017
___________________________
Chris Sewrattan, Adjudicator
Footnotes
- The Order for this hearing framed the issue as whether the applicant is “entitled to attendant care benefits in the amount of $3,000.00 per month for the period from January 26, 2016 to date less amounts paid”. The parties’ submissions make clear that the only issue in dispute is the quantum of attendant care benefit to which the applicant is entitled during this time period. The applicant’s entitlement to an attendant care benefit generally is not in dispute. In addition, prior to the hearing the applicant withdrew a second issue in dispute: his entitlement to payments for damage to clothing, glasses, hearing aids, etc. in the amount of $519.97 for a cell phone, submitted on February 2, 2016, denied by the respondent on March 23, 2016.