Tribunal File Number: 16-004073/AABS
Case Name: 16-004073 v TD 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:
K. R.
Applicant
and
TD Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Written Hearing: May 25, 2017
Appearances:
Counsel for the Applicant: Alisa Maso
Counsel for the Respondent: Maya Krishnaratne
I. INTRODUCTION
[1.] The applicant, K.R., was injured in an automobile accident on October 3, 2014, and sought attendant care benefits (ACBs), cost of an examination for ACBs and four medical benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
[2.] Initially, the respondent denied all claimed benefits. However, a few weeks before this hearing, in letters dated April 26, 2017 and May 16, 2017, the respondent approved the cost of the examination for ACBs and resolved the issues with the medical benefits, three medical benefits were approved and one was withdrawn.1 The remaining issue to be determined in this hearing is the applicant’s entitlement to ACBs.
[3.] In the applicant’s reply submissions for this hearing, she raised the issue of interest for previously denied and subsequently approved benefits. Regarding the previously denied benefits, I have no evidence before me on the nature of the agreement between the parties, as it relates to interest, that led to the settlement of the issues. In addition, the respondent did not have an opportunity to respond to this issue. As such, I will not address the issue of interest for previously denied benefits. However, I will address the issue of interest for the remaining issue in dispute-entitlement to ACBs.
II. ISSUES
[4.] The issues in this hearing are as follows:
i. Is the applicant entitled to ACBs in the amount of $873.30 per month, for the period of October 4, 2014 to September 30, 2016 ?; and
ii. Is the applicant entitled to interest on ACBs?
III. Result
[5.] The applicant is entitled to the payment of ACBs from July 16, 2015 to September 30, 2016 in the amount of 873.30 per month and interest.
IV. ANALYSIS
Is the applicant entitled to ACBs?
[6.] I find that the applicant is entitled to ACBs from March 15, 2015 to September 30, 2016, the 104 week mark, in the amount of $834 per month for the reasons that follow.
[7.] Section 19 of the Schedule states that the respondent shall pay for all reasonable and necessary expenses for ACBs that are incurred by the applicant, as a result of the accident, provided by an aide or attendant or by a long-term care facility.
[8.] The onus is on the applicant to show that she is entitled to these benefits and I find that that the applicant has met her onus based on the evidence she provided.
[9.] The applicant submitted a Form 1 dated March 15, 2015 completed by Michael Sabayle, Occupational Therapist. Mr. Sabayle recommended that the applicant receive $834 per month in ACBs.
[10.] The applicant also refers to her family doctor, Dr. Miroslaw Dutczak’s, clinical notes and records (CNRs) and medical letters from Dr. Inese Robertus, Pain consultant, to support her entitlement to ACBs.
[11.] Dr. Dutczak documented in his CNRs on September 22, 2015 that the applicant suffers from neck and back pain with paresthesia in her fingers. Her pain ranges from 7 to 9 out of 10. Dr. Dutczak noted that the pain interferes with the applicant’s daily activities. Dr. Dutczak did not specify what those daily activities were; however, in the applicant’s submissions she indicated that prior to the accident she was independent with her personal care. She did all household duties, including cleaning, grocery shopping, meal preparation and laundry. Regarding recreational activities, the applicant would attend social gatherings, liked to write, went to the gym and cooked. I note that the applicant did not provide an affidavit or personal statement to corroborate the information contained in her written submissions. Submissions are not evidence. However, I was not provided with any reasons why I should not accept the information in the applicant’s submissions.
[12.] Also included in the CNRs of Dr. Dutczak was a letter dated January 21, 2016 to the applicant’s employer wherein he notes that he has treated her since the October 2014 accident and the applicant suffers from physical and psychological injuries as a result of the accident that affects her daily activities. Dr. Dutczak indicates that the applicant is able to do her daily activities, at a slower pace and requires time to rest, but he did not specify what the applicant’s daily activities were.
[13.] The applicant also submitted letters from Dr. Robertus, Pain Consultant, dated November 16, 2016 and February 1, 2016. In the November 16, 2015 letter, Dr. Robertus indicated that the applicant has chronic upper, mid and lower back pain, bilateral shoulder pain and right hip pain, resulting from the accident. In the letter dated February 1, 2016, Dr. Robertus stated that the applicant has “restrictions in all areas of active daily life such as bathing, dressing, toileting, cooking and doing grocery shopping. All household chores involving bending, lifting, twisting in lower back is severely limited to perform.”
[14.] The applicant asserts that both Dr. Dutczak and Dr. Robertus indicate that she requires assistance with her daily activities. As such, the applicant submits that this evidence in addition to the Form 1 completed by Mr. Sabayle supports her entitlement to ACBs. I agree.
[15.] I was persuaded by the applicant’s medical evidence, specifically Dr. Dutczak’s clinical notes and records (CNRs) and the letters from Dr. Robertus that the applicant suffers from chronic pain which prevented her from adequately completing the tasks of her daily life. This evidence along with the Form 1 submitted by Mr. Sabalye, is sufficient evidence to support the applicant’s entitlement to ACBs.
[16.] The respondent’s position is that the applicant is not entitled to ACBs based on a Form 1 completed by Jeena Abraham, Occupational Therapist, on June 1, 2015. Ms. Abraham recommended $0 for monthly ACBs. However, other than the Form 1 completed by Ms. Abraham, the respondent has not provided any other evidence to challenge the applicant’s eligibility for ACBs. In its submissions, the respondent did not indicate any concerns with Dr. Dutczak’s CNRs or Dr. Robertus’ report. The respondent indicated in its submissions that not all of the applicant’s injuries were a result of the accident, but did not provide any evidence to support that position.
[17.] In the absence of such evidence, I find that the applicant has met her onus based on her Form 1 and supporting medical evidence to justify her entitlement to ACBs.
Were the expenses incurred?
[18.] While I am of the view that the applicant is entitled to ACBs, I must also determine whether the expenses were incurred because under subsection 3(7) (e) of the Schedule, in order for the applicant to receive payment for attendant care benefits, there must be evidence that the expense was incurred.
[19.] An incurred expense requires that the following conditions be met:
i. The applicant received the service to which the expense relates;
ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense;
iii. The person who provided the service did so in the course of her employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or sustained an economic loss as a result of providing the goods or services to the insured person.
[20.] I find that the applicant has met the incurred definition for expenses submitted for the period of March 16, 2015 to August 10, 2015.
[21.] The applicant submitted the following invoices from Attendants With Care Inc., an attendant care service provider:
$873.30 for the period of March 16, 2015 to April 15, 2015;
$873.30 for the period of April 16, 2015 to May 15, 2015;
$873.30 for the period of May 16, 2015 to June 15, 2015;
$873.30 for the period of June 16, 2015 to July 15, 2015; and
$771.75 for the period of July 16, 2015 to August 10, 2015.
[22.] The respondent paid for the period of March 16, 2015 to June 15, 2015, but indicated after June 15, 2015, the applicant was not entitled to ACBs.
[23.] I have determined that the applicant is entitled to ACBs and that she met the incurred definition. As such, I find the respondent is required to pay for the invoices for the period of June 16, 2015 to August 10, 2015.
[22.] The applicant’s position is that she is entitled to ACBs from October 4, 2014 to date and ongoing. However, in the applicant’s submissions, she accepts that her entitlement to ACBs is from October 4, 2014 to September 30, 2016 because September 30, 2016 marks the 104 week mark from the date of the accident. According to the Schedule, the applicant is not entitled to ACBs past that date because she had not been designated as catastrophic.
[23.] I also find that the applicant is only entitled to ACBs from the date that the Form 1 was completed as indicated under section 42 of the Schedule.2 Given that the Form 1 was competed on March 15, 2015, I am of the view that the respondent is not required to pay for benefits prior to that date.
Are the ACBs deemed incurred for the period of August 11, 2015 to September 30, 2016?
[24.] I find that the respondent is required to pay for ACBs from August 11, 2015 to September 30, 2016 under section 3(8) of the Schedule.
[25.] Section 3(8) of the Schedule states that if an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefits, I may deem the expense to have been incurred.
[26.] I note that the applicant did not plainly make an argument that the expenses should be deemed incurred. However, the applicant’s position that she is entitled to ACBs after August 10, 2015 can only be granted if the expenses are deemed incurred because the applicant did not have the money to pay for ACBs after that date. As such, the respondent did not receive any invoices after August 10, 2015 from Care Inc.
[27.] I am of the view that the respondent did not adequately consider Dr. Dutczak’s CNRs and letters from Dr. Robertus. Both Drs. Dutczak and Robertus opine that the applicant has chronic pain which prevents her from taking care of her personal and other daily needs. The respondent does not give any justification, other than its own Form 1, for denying the applicant’s claim for ACBs after June 2015.
[28.] As such, I find that the respondent unreasonably withheld or delayed payment of the benefit. Its reliance on its own Form 1, in light of the evidence that was provided by the applicant, was not sufficient justification to continue to deny the applicant’s entitlement to ACBs.
[29.] The respondent is required to pay for ACBs from July 16, 2015 to September 30, 2016 in the monthly amount of $873.30, including interest, pursuant to the Schedule.
V. ORDER:
[30.] I order the following:
i. The respondent is required to pay the applicant attendant care benefits in the monthly amount of $873.30 from July 16, 2015 to September 30, 2016; and
ii. The applicant is entitled to interest on ACBs, pursuant to the Schedule.
Released: July 25, 2017
Nicole Treksler, Adjudicator
Footnotes
- $1,300 for physiotherapy, denied on January 7; 2015, $2,000 for physiotherapy, denied on August 18, 2015; $1,325 for physiotherapy, denied on December 23, 2014; and $1,929.45 for attendant care assessment, denied on May 8, 2015.
- Section 42 of the Schedule indicates that the applicant must have a Form 1 completed by an occupational therapist or registered nurse to determine the type and the monthly amount of ACBs.