A.H. v. Belair Direct Insurance Company, 2017 CanLII 56675

Date: 2017-08-08

Tribunal File Number: 16-001063/AABS

Case Name: 16-001063 v Belair Direct Insurance Company

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:

A. H.

Applicant

and

Belair Direct Insurance Company

Respondent

DECISION

Adjudicator: Lori Marzinotto

Appearances:

Applicant: A.H.

Counsel for the Applicant: Robert Besunder and Aftab Alam

Counsel for the Insurance Company: Janet Young

HEARD In Person: December 1 – 2, 2016 HEARD In Writing: January 4, 2017

BACKGROUND

1. The applicant, A.H., was injured in a motor vehicle accident on June 19, 2014. As a result of the accident the applicant sought and received benefits from his insurer, Belair Direct Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) ¹.

2. The applicant was deemed catastrophically impaired on March 16, 2015. He suffered a significant injury to his left arm and specifically his left elbow which he described as “totally smashed”. He required several surgeries. He also required bone grafts, a total elbow arthroplasty and metal plates. His left arm is now four (4) centimetres shorter and he is unable to straighten his arm and has no elbow pronation and supination. The applicant is right handed

3. At the time of the accident he was a sales supervisor and described his work environment as a call centre. He returned to work in August 2014.

4. In addition to several medical benefits and assessment costs, the applicant sought entitlement to attendant care benefits (“ACB”). The respondent partially approved several treatment plans, denied others and paid ACB in the amount of $33,034.66 from July 2014 until December 18, 2015.

5. The applicant submitted an application to the Licence Appeal Tribunal – Accident Automobile Benefits Service (the “Tribunal”) seeking payment of the denied and/or partially approved treatment plans and as well as additional ACB.

6. An in person hearing took place on December 1 and 2, 2016 regarding ACB benefits and a written hearing including submissions and evidence took place on January 4, 2017 regarding the remaining medical benefits.

ISSUES IN DISPUTE:

7. The issues in dispute are as follows:

Is the applicant entitled to the following attendant care benefits:

Issue #1(i) $3,000 per month from June 2014 to March 2015?

Issue #1(ii) $6,000 per month from March 2015 and ongoing?

Is the applicant entitled to the following medical benefits/treatment plans:

Issue #2 a partially approved physiotherapy treatment plan submitted February

25, 2015 in the amount of $2,450 less $1,870.47?

Issue #3 a partially approved physiotherapy treatment plan submitted March 27,

2015 in the amount of $4,200.00 less $2,533.76?

Issue #4 in a partially approved physiotherapy treatment plan submitted June 23,

2015 in the amount of $4,200.00 less $2,165.95?

Issue #5 a partially approved physiotherapy treatment plan submitted June 23 in

the amount of $4,200.00 less $2,165.94?

Issue #6 a partially approved physiotherapy treatment plan submitted August 5,

2015 in the amount of $2,700.00 less $1,987.44?

Issue #7 a physiotherapy treatment plan submitted August 10, 2015 in the

amount of $4,200.00?

Issue #8 a partially approved physiotherapy treatment plan submitted September

9, 2015 in the amount of $4,934.00 less $3,040.00?

Issue #9 a physiotherapy treatment plan submitted January 20, 2015 in the

amount of $4,700.00?

Issue #10 a physiotherapy treatment plan submitted January 27, 2016 in the

amount of $4,700.00?

Issue #11 Is the Applicant entitled to a medical benefit outlined in a partially approved physiotherapy treatment plan submitted June 02, 2016 in the amount of $3,527.80 less $2,469.92?

Issue #12 a partially approved physiotherapy treatment plan submitted February

03, 2016 in the amount of $3,450.00 less $2,200.00?

Is the applicant entitled to the following medical benefits/cost of Examinations:

Issue #13 an occupational therapy assessment outlined in a treatment plan

submitted January 25, 2015 in the amount of $2,200.00?

Issue #14 an impairment assessment outlined in a treatment plan submitted

November 04, 2015 in the amount of$1,988.64?

Issue #15 a physiatry assessment outlined in a treatment plan submitted

December 04, 2015 in the amount of $2,000.00?

Issue #16 an assessment outlined in a partially approved treatment plan

submitted October 30, 2014 in the amount $2,203.72 less $1,703.72?

Issue #17 the cost of a functional abilities evaluation outlined in a treatment plan

submitted September 23, 2014 in the amount of$1,345.95?

Issue #18 an attendant care assessment outlined in a treatment plan submitted

June 12, 2015 in the amount of $902.23?

Issue #19 an attendant care assessment outlined in a partially approved

Interest

Issue #20 Is the Applicant entitled to interest on any overdue payments?

RESULT:

8. Of the issues in dispute listed above I find that the applicant is only entitled to ACB from February 1, 2016 to date and on-going, in part.

9. I find that the applicant is not entitled to the following:

i) additional ACB from June 2014 – March 2015.

ii) additional ACB from March 2015 to January 31, 2016.

iii) payment of the balance of treatment plans listed as issues #2, 3, 4, 5, 6, 8, 11, 12, 16 and 19.

iv) payment of the treatment plans listed as issues #7, 9, 14, 15 and 18.

v) payment of the treatment plan listed as issue #10.

vi) the treatment plan listed as issue #13 is not properly before the Tribunal.

vii) the treatment plan listed as issue #17 has been paid and therefore not an issue in dispute.

ANALYSIS

10. I will deal with the medical benefits (issues #2-19) first and then move to the issue of attendant care (issues #1(i) & 1 (ii)).

Medical Benefits

11. The applicant is seeking payment for a number of treatment plans and assessments. However, there is a general insufficiency of evidence that does not allow me to find for the applicant.

12. In order for treatment plans to be payable by the insurer, they must be reasonable and necessary according to section 18 of the Schedule.

13. The applicant did not individually address each treatment plan in dispute in the written submissions.

14. The applicant submitted that based on medical evidence and several recommendations from medical practitioners in medical reports, that the recommended treatments in the Treatment and Assessment Plans (“OCF-18s”) are necessary. However, I have not been provided with any of the OCF-18s that are in dispute. Therefore, I am unable to evaluate the recommended treatment with any treatment plans in order to assess whether they are reasonable and necessary and decline to order that they be paid.

15. I decline to order any of the treatment plans be paid for the additional following reasons:

Issues #2, 3, 4, 5, 6, 8, 11, 12 & 19 (Partially Approved Treatment Plans)

16. The applicant is seeking full payment of the partially approved treatment plans listed as issues #2, 3, 4, 5, 6, 8, 11, 12 & 19.

17. The respondent submits that the fees in the treatment plan fees are in excess of the Financial Services Commission of Ontario’s (“FSCO”) Professional Services Guidelines and in one instance, included a fee for mileage (issue #19).

18. The applicant did not provide submissions responding to the fees being in excess of the FSCO’s Professional Services Guidelines but only that the medical evidence supports the treatments.

19. The applicant has the burden to prove that the treatment plans are reasonable and necessary and has not done so. I decline to order that they be paid.

Issue #18

13The respondent submits that the cost of an attendant care assessment is not reasonable and necessary. The basis for its submission is a paper review conducted by Dr. Khaled which determined that the request was essentially an in-home assessment. Dr. Khaled determined it was not reasonable and necessary because a previous in-home assessment was approved by the respondent and had been completed less than three weeks earlier. Therefore, the respondent submits that an additional one was not warranted nor was it reasonable or necessary. I agree.

14The applicant did not provide any responding submissions to this argument to demonstrate that the treatment plan was reasonable and necessary. Therefore I only have the respondent’s evidence and submissions on this point. I decline to order that this treatment plan be paid.

Issue #16

15The cost of the treatment plan in issue #16 was partially approved.

16A paper review assessment of the “Documentation, support activity” (the balance of the treatment plan that was not approved) was conducted by an occupational therapist, Mr. Chan, who determined that it was not reasonable and necessary.

17Significantly, the applicant did not provide responding submissions on this issue. As a result, it is not payable.

Issue #10

18The treatment plan in issue #10 states that it is for physiotherapy.

19The respondent submits that it requested the applicant attend an insurer’s examination on February 26, 2016 to determine whether the treatment plan was reasonable and necessary. The respondent submits that the applicant did not attend the assessment.

20The applicant did not provide responding submissions on this point. Therefore I do not have any evidence to the contrary and therefore I find that the treatment plan is not payable.

Issue #13

21The respondent submits that this treatment plan was never submitted. The respondent has been unable to locate the treatment plan in their records or in the Health Claims for Auto Insurance electronic system (“HCAI”).

22The applicant did not provide responding submissions on this point. Therefore I do not have any evidence to the contrary. As there was no evidence of submission of the treatment plan or denial, this issue is not properly before the tribunal and I cannot order that it be paid.

Issue #17

23The respondent submits that this treatment plan was approved on October 10, 2014 and has been paid.

24The applicant did not provide responding submissions on this point. Therefore I do not have any evidence to the contrary. Accordingly, I find that this treatment plan was paid by the respondent and not an issue in dispute.

Attendant Care Benefits

25Section 19 of the Schedule outlines the test for ACB. It requires an insurer to pay for all reasonable and necessary expenses that are incurred by an insured as a result of the accident for services provided by an attendant.

26The issue is whether the applicant incurred ACB and if so, what amount is reasonable and necessary and for what period.

27Incurred has a particular meaning in the Schedule. Section 3(7)(e) states that the expense, in this case ACB, is not incurred by an insured unless: (i) the insured has received the goods and services to which the expense relates;

(ii) the insured has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and; (iii) (A) the person who provided the goods or services, did so in the course of his or her employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured.

Issue #1(i) - Is the applicant entitled to ACB at the rate of $3,000 per month from June 2014 to March 2015?

28I find that the applicant has been paid ACB from July 2014 to March 2015 in the amount of $3,000 per month and no further amounts are owing for this period.

29This issue in dispute has been resolved. The respondent provided affidavit evidence that the applicant was paid $3,000 per month from July 2014 to March 2015.

30There was no evidence before me of additional and incurred ACB for the period of June 19, 2014 (the date of the accident) to July 2014 and therefore no further amount is payable for this time period.

Issue #1(ii) ACB of $6,000 Per Month from March 2015 and Ongoing

31The applicant is seeking ACB at the rate of $6,000 per month from March 2015 and ongoing.

32The applicant had been receiving attendant care benefits and has been paid the following amounts for the indicated time periods:

March 2015 – August 2015

$1,197.81 / month

September 2015

$745.24

October 2015 – December 18, 2015

$551.28 / month

33The evidence was that ACB were paid to Bikkai Health Service for the applicant’s care up to December 18, 2015 when the personal support worker (“PSW”) at Bikkai Health Service that was providing the care got a job elsewhere.

34Seven Assessment of Attendant Care Needs (Form 1) submitted by the applicant or respondent were entered into evidence by way of the respondent’s affidavit sworn by Janet Knibbs on December 22, 2016 as follows:

From	Date	Provider	Amount / month
Applicant	July 5, 2014	Yeganeh Behnaz Pearson Medical Assessment Centre Inc.	$5,351.89
Applicant	Jan 14, 2015	Yeganeh Behnaz Pearson Medical Assessment Centre Inc.	$4,241.00
Respondent	Feb 5, 2015	Colin Chan Focus Assessments Inc.	$1,197.81
Applicant (Exhibit #1)	May 1, 2015	Janice Kim Oshawa Physiotherapy and Rehabilitation Centre	$8,474.01
Respondent	May 25, 2015	Colin Chan Focus Assessments Inc.	$1,197.81
Applicant	June 18, 2015	Yeganeh Behnaz Pearson Medical Assessment Centre Inc.	$4,751.25
Respondent (Exhibit #4)	Sept 17, 2015	Colin Chan Focus Assessments Inc.	$551.28

35No further Form 1s were received after the respondent submitted the Form 1 from Colin Chan dated Sept 17, 2015 (“Chan Ex#4”).

36There was no evidence presented to prove that the insured had received ACB related services over and above the amount already paid by the insurer from March 2015 to December 18, 2015.

37I was not provided with any invoices over and above the amounts that were already paid from March 2015 to December 18, 2015. In addition, I was not presented with any evidence indicating that there were any outstanding amounts owed to the attendant care provider and therefore no additional amounts are owed from March 2015 to December 18, 2015.

ACB from December 18, 2015 to January 31, 2016

38The respondent’s evidence was that it paid for attendant care services provided and invoiced by Bikkai Health Service up until December 18, 2015. After that date, the respondent no longer received invoices from that attendant care provider.

39There was insufficient evidence that the applicant had received attendant care services for this time period that satisfies the incurred definition outlined in the Schedule. The applicant did not submit invoices for ACB for the period of December 18, 2015 to January 31, 2016.

40Although the applicant testified that his wife had been helping him during the period of December 18, 2015 – January 31, 2016 and that he had promised to pay her, he did not establish that she suffered an economic loss.

41In accordance with section 3(7)(iii)(B) of the Schedule, in order for ACB to be paid to the applicant’s wife for this period, the applicant must demonstrate that his wife suffered an economic loss. As there was no such evidence presented to support an economic loss by the applicant’s wife no amount is owed for this time period.

ACB from February 1, 2016 ongoing

42It was the applicant’s evidence that he has been receiving attendant care services from Nazma Ramnauth (“Ramnauth”) starting in February 2016.

43The respondent submits that there is a serious issue as to whether attendant care has been incurred and if in fact it was incurred, there is no proof of economic loss.

44With respect to ACB from February 2016 to date and ongoing, I find that the applicant is entitled to ACB, in part. He is not entitled to the $6,000/month he is seeking nor is he entitled to the full amount of Ramnauth’s invoices. The evidence did not support the amount of care indicated in Ramnauth’s invoices. Ramnauth’s invoices lack the proper breakdown of the level of care that was provided to the applicant. In addition, Ramnauth’s hourly rate was over and above the allowable Attendant Care Hourly Rate Guideline (“FSCO ACB Guideline”).²

45In providing reasons for my decision, I will firstly deal with whether the attendant care for this period was incurred and secondly deal with the issue of quantum.

Has Attendant Care Been Incurred from February 1, 2016 to July 30, 2016

46The respondent submits that based on the documentation submitted by Ramnauth to date, the applicant has failed to prove economic loss.

47I find that Ramauth is not required to prove economic loss. I find that she satisfies s.3(7)(iii)(A) in that she provided attendant care in the course of her employment, occupation or profession in which she would ordinarily have been engaged but for the accident.

48The following evidence supports that Ramnauth was providing attendant care in the course of her employment, occupation or profession:

i) She has been and continues to be employed at Community Living Mississauga (“CLM”) for 7 years, and provides services for people with disabilities including personal care;

ii) Although she is considered a part-time employee at CLM, she can work up to 40 hours per week (i.e. she can work full time hours even though she is part time) and is allowed to take on additional jobs;

iii) She provides her own availability to CLM and is scheduled by them according to her availability;

iv) She could be accepting additional work from CLM during the morning hours but is not doing so because she is working for the applicant;

v) In addition to working for CLM, she has provided attendant care services to the applicant as a sole proprietor; and

vi) The applicant testified that he did not previously know Ramnauth. The applicant hired Ramnauth in February 2016 as his attendant care provider.

49Ramnauth testified that she uses the designation SSW or Social Service Worker from the College of Social Workers and Social Service Workers. Ramnauth testified that an SSW provides services of a PSW in addition to being trained in counselling.

50Ramnauth provided a fax cover letter with attached paystubs from CLM. The fax cover letter indicates that the number of hours Ramnauth worked for CLM between September 2015 to January 2016 was 804.5 hours and between February 2016 to June 2016 was 556 hours.

51She had been working more hours in the months before providing care to the applicant. The decrease in hours worked for CLM supports Ramnauth’s evidence that she could take additional work from CLM.

Section 3(7)(e)(ii) – Paid the Expense, Has Promised to Pay

52Ramnauth has not been paid for the services she has provided to the applicant and admits that this is difficult for her.

53Ramnauth testified that she raised the issue of payment for her services with the applicant. The applicant has asked Ramnauth to be patient and that he has a lawyer helping him and promised that she will eventually get paid.

54Ramnauth also testified that she felt that the applicant is a man of his word, is an honest and trustworthy man and therefore continues to provide care.

55The respondent submits that the applicant did not promise payment to Ramnauth himself, but told her that the respondent would pay her.

56I do not find this to be a convincing argument. Ramnauth testified that the applicant told her that she will eventually get paid. I have no evidence from which to conclude that Ramnauth is providing the care for free. The applicant testified to services being provided and promising payment, therefore arguably creating a legal obligation.

57Therefore, I find that the applicant has satisfied this part of incurred under the Schedule.

Section 3(7)(e)(i) – Received the Goods or Services

58Ramnauth’s invoices outline the services she states she provided. The respondent disputes the applicant requires the level of care, the quantum being sought as well as the hourly rate being charged.

59Ramnauth’s monthly invoices for attendant care range from $2,751.25 to $2,999.75.

60Ramnauth’s invoices for the months of February 2016 through to and including July 2016 contain essentially the same daily descriptions.

61The invoices indicate that Ramnauth provides care from Monday through to and including Saturday. The invoices indicate that each day Ramnauth provides the following care for 3 hours:

Daily supports, supervisory care and hygiene included grooming, cleaned

bathtub and washroom after bathing, clothing preparation and layout, meal preparation and serving, made bed and bedding care, tidied bedroom, vacuumed kitchen, disposed garbage.

62There are additional charges when manicures and pedicures are provided. The additional weekly charge for manicures is 30 minutes and the additional monthly charge for pedicures is 30 minutes.

63Ramnauth does not provide the level of detail for each care item as is normally indicated on Form 1s. Instead, Ramnauth only indicates the number of hours for each day, total per month and produced a monthly invoice. Ramnauth charged an hourly rate of $35.50.

64Ramnauth did not provide a proper breakdown of the levels of care provided and invoiced over and above the FSCO ACB Guideline.

65Having found that the applicant is entitled to ACB in part, I am to determine the amount of monthly ACB. I acknowledge that the Form 1s and the invoices of Ramnauth are vastly different. However, I am still able to determine the quantum of ACB services the applicant is entitled to based on the evidence provided.

66Having reviewed Ramnauth’s invoices, considering the evidence at the hearing and taking into consideration the last Form 1s submitted into evidence at the hearing by the parties, mainly Kim Ex #1, and Chan Ex #4, and breaking down the hourly rate for the different levels of care provided by Ramnauth, I find that the applicant is entitled to $1,030.67 per month in attendant care from February 1, 2016.

67Calculating the amount of ACB the applicant is entitled to requires me to assess the level of care and the amount of time the care was provided by Ramnauth as well as calculating the hourly rates for her services.

68The breakdown of this amount of monthly ACB is as follows.

Hourly Rate and Levels of Care

69I agree with the respondent that the hourly rate invoiced by Ramnauth is above the FSCO ACB Guideline.

70The FSCO ACB Guideline provides a range from $11.40 per hour to $21.11 per hour depending on the category of services. The three categories of services are as follows:

• Level 1 care for routine personal care,

• Level 2 care for basic supervisory functions and

• Level 3 care for complex health/care and hygiene functions.

71I have chosen to apply the rates in the FSCO Revised Attendant Care Rate “Revised AC Rate”), effective October 1, 2016³:

Attendant Care Costs	Maximum Hourly Rate Effective October 1, 2015	Maximum Hourly Rate Effective October 1, 2016
Part 1: Level 1 Attendant Care	$13.19	$14.90
Part 2: Level 2 Attendant Care	$11.25	$11.40
Part 3: Level 3 Attendant Care	$19.35	$21.11

72Ramnauth failed to provide a breakdown of the level of service provided or the amount of time spent for each service compounding the difficulty in assessing the ACB.

73Ramnauth indicates on her invoices that she provides attendant care six (6) days per week (Monday through to Saturday).

74The applicant was clear in his evidence that Ramnauth provides attendant care five (5) days per week. The applicant indicated that his wife helps him on the weekends.

75I accept the applicant’s evidence regarding the number of days per week Ramnauth provided attendant care and base my calculations on 5 days per week.

76Although both the applicant and the respondent submitted the Yeganeh Form 1 in their written submission, neither party placed much emphasis on it. Yeganeh did not testify at the hearing and therefore I did not place much weight on that Form 1. I did hear evidence from both Kim and Chan, other Form 1 assessors, and therefore allot their Form 1s more weight in my analysis.

77The applicant was assessed on April 17, 2015 by Kim in order for Ex #1, dated May 1, 2015, to be prepared. This is significant because on April 6, 2015, the applicant underwent a further surgery on his left arm.

78The evidence of Kim was that when she assessed the applicant, he was unable to use his left arm for anything because it was in a sling. A peripherally inserted central catheter (“PICC line”) was inserted in the applicant’s right arm which affected its use. Once the PICC line was removed, Kim would expect his right arm movement to improve.

79On cross-examination, Kim admitted that a lot of her recommendations in Ex #1 were as a result of the applicant’s recent surgery.

80Ramnauth’s invoices cover a period of February 2016 (10 months post April surgery) through to and including July 2016. As of May 2015 (1 month post April surgery) the applicant had returned to work on modified duties.

81Attached at Appendix “A” I have charted out the Part 1 (Level 1) Attendant Care that Kim and Chan disagree on and have provided my decision taking into account Ramnauth’s invoices and evidence at the hearing.⁴

82As set out in Appendix “A”, I find that the applicant is entitled to 487.50 minutes per week of Part 1 (Level 1) Attendant Care at an hourly rate of $13.19 which is in accordance with the Revised AC Rate and the hourly rate both Kim and Chan agreed upon in their Form 1s.

83Below is the monthly calculation of Level 1 ACB as prescribed in Form 1:

Part 1	Total Mins/Wk	÷ 60	Total Weekly Hours	x 4.3	Total Monthly Hours	x	Hourly Rate	Monthly ACB
Benefit up to Oct 1, 2015	487.50	÷ 60	8.13	x 4.3	34.96	x	$13.19	$461.12
Benefit After Oct 1, 2016	487.50	÷ 60	8.13	x 4.3	34.96	x	$14.90	$520.90

84Attached as Appendix “B”, I have charted out the Part 2 (Level 2) Attendant Care that Kim and Chan disagree on and have provided my decision also taking into account Ramnauth’s invoices and evidence at the hearing.

85As set out in Appendix “B”, I find that the applicant is entitled to 250 minutes per week of Part 2 (Level 2) Attendant Care at an hourly rate of $11.25 as stated on the Revised AC Rate.

86Below is the monthly calculation of Level 2 ACB as prescribed in Form 1:

Part 2	Total Mins/Wk	÷ 60	Total Weekly Hours	x 4.3	Total Monthly Hours	x	Hourly Rate	Monthly ACB
Benefit up to Oct 1, 2015	250	÷ 60	4.17	x 4.3	17.93	x	$11.25	$201.71
Benefit After Oct 1, 2016	250	÷ 60	4.17	x 4.3	17.93	x	$11.40	$204.40

87Attached as Appendix “C”, I have charted out the Part 3 (Level 3) Attendant Care that Kim and Chan disagree on and have provided my decision also taking into account Ramnauth’s invoices and evidence at the hearing.

88As set out in Appendix “C”, I find that the applicant is entitled to 265 minutes per week of Part 3 (Level 3) Attendant Care at an hourly rate of $19.35 which is in accordance with the Revised AC Rate and the hourly rate both Kim and Chan agreed upon in their Form 1s.

89Below is the monthly calculation of Level 3 ACB as prescribed in Form 1:

Part 3	Total Mins/Wk	÷ 60	Total Weekly Hours	x 4.3	Total Monthly Hours	x	Hourly Rate	Monthly Care Benefit up to October 1, 2015
Benefit up to Oct 1, 2015	265	÷ 60	4.42	x 4.3	19.01	x	$19.35	$367.84
Benefit After Oct 1, 2016	265	÷ 60	4.42	x 4.3	19.01	x	21.11	$401.30

90Taking into account my calculations for Part 1, Part 2 and Part 3 Attendant Care, I find that the applicant is entitled to $1,030.67 of attendant care benefits per month based on the Revised AC Rate from February 1, 2016 and each subsequent month he continued to receive care. If the applicant continued to receive attendant care after October 1, 2016, the applicant is entitled to ACB per month from October 1, 2016 in the amount of $1,126.60 in accordance with the maximum hourly rate effective October 1, 2016 on the Revised AC Rate. ⁵

91Given that I have found that the applicant is entitled to ACB in part, the applicant is also entitled to interest on the attendant care.

Bad Faith Costs

92Although not listed as an issue in dispute for the hearing, in his written submissions, the applicant claimed bad faith costs alleging that the respondent acted in bad faith and also breached sections 15, 18 and 32(2) of the Schedule.

93Pursuant to Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”), a party may request costs at any time before a decision or order is released where they believe that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

94Proceeding in Rule 19 means the Tribunal process from the start of an appeal until the matter is resolved. None of the respondent’s conduct the applicant complains of occurred during the proceeding before the Tribunal. Therefore I decline to award bad faith costs.

ORDER

95Pursuant to s.280(2) of the Act, I find that the applicant is entitled to the following:

i) Attendant care benefits in the amount of $1,030.67 per month from February 1, 2016 to July 2016;

ii) Incurred attendant care benefits in the amount of $1,030.67 from July 2016 to October, 2016;

iii) Incurred attendant care benefits in the amount of $1,126.60 from October 1, 2016 and ongoing; and,

iv) Interest on any incurred and overdue attendant care benefits pursuant to the Schedule

Released: August 8^th, 2017

____________________________

Lori Marzinotto,

Adjudicator

Appendix “A” Level 1 Care

Care Type	Kim	Chan	Decision
Upper Body Dress Lower Body Cress	70 mins/wk 70 mins/wk	0 mins/wk 0 mins/wk	50 mins/wk (10 min x 5 days) 50 mins/wk (10 min x 5 days) The applicant and Ramnauth provided evidence on the applicant’s need for assistance with dressing. I accept that the applicant requires assistance but have reduced Kim’s calculation to reflect the number of days the service was provided by Ramnauth.
Undress (upper) Undress (lower)	70 mins/wk 70 mins/wk	0 mins/wk 0 mins/wk	25 mins/wk (5 mins x 5 days) 25 mins/wk (5 mins x 5 days) The applicant and Ramnauth provided evidence on the applicant’s need for assistance with undressing. I accept that the applicant requires assistance but have reduced Kim’s calculation to reflect the number of days the service was provided by Ramnauth. In addition, I have reduced the time allotted in Ex #1 for undress. The applicant’s evidence was that Ramnauth does not help him undress in the evening. The applicant stays in bed until Ramnauth arrived and she helps him take off his shirt. I have reduced the time in Ex#1 from 10 mins to 5 mins for 5 days per week.
Orthotics	105 mins/wk	0 mins/wk	0 mins/wk No evidence was presented that Ramnauth assisted the applicant in this manner
Grooming Face wash, morning & evening Hands, wash Shaving Brushes Shampoo, blow/towel dries Fingernails Toenails	105 mins/wk 105 mins/wk 70 mins/wk 35 mins/wk 70 mins/wk 10 mins/wk 10 mins/wk	0 mins/wk 0 mins/wk 0 mins/wk 0 mins/wk 0 mins/wk 0 mins/wk 0 mins/wk	0 mins/wk 0 mins/wk 0 mins/wk 0 mins/wk 0 mins/wk 30 mins/wk 7.5 mins/wk (30 mins / month) The applicant and Ramnauth provided evidence on the applicant’s need for assistance with the items I have apportioned time. I have apportioned the time in accordance with the applicant’s testimony at the hearing.
Feeding	630 mins/wk	420 mins/wk	300 mins/wk The applicant and Ramnauth provided evidence on the applicant’s need for assistance with preparation of meals. The applicant’s evidence was that he can feed himself and indicated a daily time for food preparation, eating breakfast and preparing his lunch for work is 1 hour (60 mins/day x 5 days/week)
Mobility	70 mins/wk (assists applicant from sitting position) 210 mins/wk (supervises/assists in walking)	0 mins/wk 0 mins/wk	0 mins/wk 0 mins/wk No evidence was presented that Ramnauth assisted the applicant in this manner.
Extra Laundering	15 mins/wk	0 mins/wk	0 mins/wk No evidence was presented that Ramnauth assisted the applicant in this manner. Although Ramnauth invoiced for making the bed and bedding care, this is captured in the Part 2 Level 2 Attendant Care under Hygiene.
Total Level 1			487.50

Appendix “B” Level 2 Care

Care Type	Kim	Chan	Decision
Hygiene	70 mins/wk (cleans tub/shower) 70 mins/wk (changes bedding) 420 mins/wk (ensures comfort,safety) 140 mins/wk (assists in preparing daily apparel) 70 mins/wk (hangs clothings and sorts)	70 mins/wk 105 mins/wk 0 mins/wk 35 mins/wk 0 mins/wk	50 mins/wk (10 mins x 5 days) 50 mins/wk (10 mins x 5 days) 0 mins/wk 100 mins/wk (20 min x 5 days) 50 mins/wk (10 min x 5 days)
Basic Supervisory Care	7098 mins/wk	0 mins / wk	0 mins /wk Kim indicated in the Form 1 that 7098 mins/wk was required because the applicant lacks the ability to independently get in and out of a wheelchair or to be self- sufficient in an emergency. There was no evidence that the applicant required a wheelchair. In addition, Kim testified that if a person is working and driving, Basic Supervisory Care would not be necessary. At the time or Ramnauth’s invoices, the applicant was working and drove on occasion. Ramnauth did not invoice for what is essentially 24 hour supervision.
Co-ordination of Attendant Care	60 mins/wk	0 mins/wk	0 mins/wk No evidence was presented that Ramnauth assisted the applicant in this manner
Total Level 2			250 mins/wk

Appendix “C” Level 3 Care

Care Type	Kim Ex #1	Chan Ex #4	Decision
Exercise	70 mins/wk	0 mins/wk	0 min/wk No evidence was presented that Ramnauth assisted the applicant with exercise. In addition, it was Kim’s evidence that the applicant would not need assistance with exercise once the PICC line was removed. The applicant’s evidence was that the pic line was removed 45 days after his elbow surgery of April 6, 2015.
Skin Care	35 mins/wk (applies creams, lotions, pasts, ointments, powders as prescribed or required)	0 mins/wk	25 mins/wk The applicant and Ramnauth provided evidence on the applicant’s need for this assistance. Ramnauth provided service for 5 days. Accordingly, Kim’s calculation has been reduced to reflect 5 days.
Medication	105 min/wk (administers prescribed medications) 15 mins/wk (maintains medication supply)	0 mins/wk 0 mins/wk	75 mins/wk (15 mins x 5 days) 15 mins/wk The applicant and Ramnauth provided evidence that the applicant required assistance with medications. I accept that the applicant requires assistance but have reduce Kim’s calculation to reflect the number of days the service was provided by Ramnauth
Bathing	105 mins/wk (bathes and dries client) 35 mins/wk (applies creams, lotions, pastes, ointments, powders) 70 mins/wk (Oral Hygiene, brushes & flosses)	0 mins/wk 0 mins/wk 0 mins/wk	75 mins/wk (15 min x 5 days) 25 mins/wk (5 min x 5 days) 50 mins/wk (10 min x 5 days)
Total Level 3			265 mins/wk

Footnotes

1. 1Statutory Accident Benefits Schedule, Ontario Regulation 34/10, as amended.
2. 2Attendant Care Hourly Rate Guideline (Superintendent’s Guideline No. 03/16 (Financial Services Commission of Ontario) promulgated pursuant to s. 268.3 of the Insurance Act, R.S.O. 1990, c. I.8 as referred to in s.19(2) (a) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 O.Reg. 34/10, as amended (Exhibit “R” to the Affidavit of Janet Knibbs, for the respondent).
3. 3Revised Attendant Care Hourly Rate Guideline and Transportation Expense Guideline, FSCO Bulletin No. A-14/16, Effective October 1, 2016
4. 4Appendix “A”, Appendix “B” and Appendix “C” include my reasons for my decision and form an integral part of my decision as a whole.
5. 5In accordance with the Revised AC Rate, the hourly rates increased as of October 1, 2016 and I have provided a calculation based on the increased rates that come into effect on October 1, 2016.