Tribunal File Number: 16-000525/AABS
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:
M. P.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
For the Applicant: Arvin Gupta, counsel for the Applicant
For the Respondent: Sophia Chaudri, counsel for the Respondent
HEARD: Written Hearing: October 12, 2016
Overview
1The applicant, M. P., was injured in a motor vehicle accident on July 8, 2013. He applied for an attendant care benefit under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). Specifically, he claimed compensation for having his wife provide attendant care service for him for two years. Certas Home and Auto Insurance Company ("Certas") denied the claim. The applicant appeals to the License Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") principally on this issue.
Issues in Dispute:
2Three issues are the subject of this appeal:
Is the applicant entitled to attendant care benefits in the amount of 769.15 per month for the period July 8, 2013 to July 7, 2015?
Is the applicant entitled to interest for the overdue payment of benefits?
Is Certas liable for costs under Rule 19 of the License Appeal Tribunal Rules of Practice and Procedure (the "Rules")?
Result:
3The applicant's appeal is denied on all three issues.
Facts:
4The applicant is 70 years old. On July 8, 2013 the vehicle he was driving was T-boned on the passenger's side. As a result of this accident, the applicant has severe knee issues which restrict his mobility. According to the report of the applicant's physiatrist, Dr. Joshua Muhlstock, the applicant has difficulties with any tasks requiring kneeling or squatting, as well as repetitive climbing of stairs or a ladder, or any prolonged walking. In addition, an independent psychiatric evaluation commissioned by Certas diagnosed the applicant with major depression, mixed chronic pain, sleep apnea, and severe stress.
5Michelle Hedges, an Occupational Therapist, assessed the applicant and recommended on December 9, 2014 that he receive 915 minutes of assisted care per week for a total monthly amount of $769.15.
6The Schedule allows for an attendant care benefit if one of two prerequisites are met: s. 3(7)(e)(iii). The person who provides the attendant care must either
(A) do so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident
or
(B) sustain an economic loss as a result of providing the goods or services to the applicant
7The applicant's wife was a Personal Attendant (Health Care Aid) at Seniors For Seniors. She is professionally qualified to provide attendant care service, having received a certification as Personal Attendant Plus 2 from the Mohawk College of Applied Arts and Technology in 2002.
8According to the applicant's wife's affidavit, she provided attendant care service to the applicant after his accident in the following ways:
Perform tasks related to personal hygiene and grooming
Meal preparation
Dress/undressing
Assistance to and from the bathroom
Climbing up and down the stairs
Changing the applicant's bandages after his surgery
Ensuring the applicant takes his medication
Keeping the house tidy to ensure the applicant does not trip
Supervision by calling the applicant from work to ensure that everything is okay
A number of additional care tasks specific to a surgery that the applicant underwent in March 2014
9Between July 8, 2013 and December 2014, the applicant's wife provided care to the applicant for four days per week, five hours each day. During this time period, she spent the other three days of the week working as a live-in personal attendant for a 90-year-old female client on behalf of Seniors For Seniors. This accounted for approximately 72 hours of her time per week. Significantly, she worked this same three-days-a-week schedule prior to the applicant's motor vehicle accident. Beginning in January 2015, the applicant's wife's rate of care for the applicant changed from 5 hours per day for 4 days a week to 5 hours per day for 7 days per week.
10The parties disagree about what the applicant's wife did after December 2014. This factual detail is important. It informs whether the applicant's wife was "ordinarily engaged" as a professional Personal Attendant prior to the applicant's motor vehicle accident. The applicant's entitlement to an attendant care benefit turns on whether his wife was ordinarily engaged in her profession as a Personal Attendant prior to the accident. This will be discussed in full in the next section.
11The Applicant submits that that in January 2015 his wife had to stop providing care to her 90-year-old client because she developed a sciatic problem and could no longer provide total care. The applicant's wife switched to providing care to the applicant seven days a week, including the time when she otherwise would have been working. Her affidavit states that she could not provide the required care to her client "while also assisting my husband at the same time." The applicant asks the Tribunal to infer from this sentence that her sciatic condition would not have developed or worsened to such a degree but for the physical demands of having to care for her husband after the accident. For two reasons, I am not prepared to make this logical leap. First, if there was a causal relationship between the applicant's wife's care for the applicant and her sciatic problem, I would expect her to explicitly say this in her affidavit. Second, if I am to rely on the inference on the basis of the words in the affidavit, I need some medical corroborating medical evidence on her condition. None has been provided. There is insufficient evidence to allow me to conclude that the applicant's wife developed her sciatic condition because of her care duties to her client and husband, and as a result had to stop providing total care as a live-in to her client.
12Certas' submits that the applicant's wife stopped working in December 2014 because there was "no work available" and, therefore, there is no causal connection between the motor vehicle accident and her unemployment. I agree. In a letter from the applicant's lawyer to Certas dated June 30, 2015, the applicant advised that the applicant's wife had been off work from January 2015 until the present (June 30, 2015) because no work was available. He made no mention of her sciatic condition, her inability to provide care to both her client and husband, or a causal connection between her provision of care to her husband and her sciatic condition. The inference that I draw from all of the evidence on this issue is that in January 2015 the applicant's wife was unable to work for health reasons, and this inability was unconnected to the care she provided for the applicant.
Discussion:
Periphery Issues
13There are three issues before the Tribunal. The first issue is whether the Applicant is entitled to an attendant care benefit. The second issue, interest, is only material if the Applicant is entitled to an attendant care benefit. The third issue, costs under Rule 19, was not included in the written submissions of either party and there is no basis in the evidentiary record to grant this exceptional remedy. Furthermore, on the first issue the applicant and Certas provided submissions on whether s. 42(5) of the Schedule prevents the applicant's claim for retroactive attendant care benefits.
14For reasons that will be explained below, I conclude that the applicant is not entitled to an attendant care benefit because he has not proven that he incurred an expense for this benefit. Having made this decision, the appeal on interest must be dismissed and I need not decide whether s. 42(5) prevents the applicant's claim or if the attendant care costs are reasonable and necessary. The application for costs is also dismissed.
1. Is the applicant entitled to an attendant care benefit?
15An applicant is entitled to reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant (s. 19(1)(a) of the Schedule). A prerequisite to entitlement is that the expense is "incurred". Section 3(7)(e)(iii) of the Schedule sets out the definition of incurred that is relevant to this appeal:
3(7)(e) … an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,
(iii) the person who provided the goods or services,
(A) did so in the course of the 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 person
16The Schedule was amended to this version in 2010 after previously not requiring an applicant to show that the attendant care provider sustained an economic loss. In Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687 at para. 7, Justice Ray commented on the effect of this change:
This latest revision was apparently to prevent a member of an insured's family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway - and would have looked after the injured insured without compensation.1
17On my reading of the legislation, s.3(7)(e)(iii) provides for two classes of attendant care providers:
professional providers who are typically, though not necessarily, at arms-length from the applicant; and,
The applicant's family or friends who sustain an economic loss as a result of providing the service
The applicant's wife stands at the intersection of these two classes. She is a family member of the applicant who is also professionally qualified to provide the requisite attendant care services.
18The applicant submits that his wife's service was incurred because she fits into s.3(7)(e)(iii)(A), that is, the class of professional providers. The applicant acknowledges that the Schedule was amended by the Ontario Legislature to prevent family members from receiving a windfall when they would have provided attendant care service to the injured party for free and without economic loss. The applicant distinguishes his case by pointing out that she is both a family member and a qualified professional.
19Certas essentially submits that the applicant's wife's service fits within neither class. For s.3(7)(e)(iii)(A), Certas submits that she did not provide her service in her capacity as a professional, and some of her service was not of the nature that is captured by an attendant care benefit. For s. 3(7)(e)(iii)(B), Certas suggests that there is no evidence the applicant's wife sustained an economic loss.
i. The Professional Class: s. 3(7)(e)(iii)(A)
20I am not convinced that the applicant's wife's service fits within the meaning and intent of s. 3(7)(e)(iii)(A). The provision requires that the service is the product of an employment, occupation, or profession in which the applicant's wife would have ordinarily been engaged even if her husband was not involved in a motor vehicle accident. Furthermore, s. 3(7)(e)(ii) requires that the applicant promised to pay his wife or be legally obligated to pay her. My decision turns on the need for the applicant's wife to "ordinarily have been engaged" in providing her service "but for the accident". The evidentiary record suggests that:
the applicant's wife would not have been engaged in providing her service even if the accident did not occur;
she was not promised compensation by the applicant; and,
her service would have been provided even if she was not compensated by the applicant.
21This is precisely the type of work that the Legislature attempted to disqualify from compensation under s. (7)(e)(iii)(A) when it amended the Schedule in 2010. The fact that the applicant's wife is professionally accredited does not change this disqualification. She is a professional, but her service was not rendered in her professional capacity.
22This factual determination is made after considering all of the evidence. The applicant's wife provided her professional service through Seniors For Seniors. She worked the same hours before and after the accident, for the most part. The Applicant's affidavit states that between July 8, 2013 and December 2014, the applicant's wife provided service to the applicant for four days per week, five hours each day. For the other three days of the week, she provided service to a 90-year-old client as a live-in (72 hours a week) on behalf of Seniors For Seniors. Her affidavit states that prior to the motor vehicle accident, she provided service on behalf of Seniors For Seniors at the same rate – 3 days a week totaling approximately 72 hours. I find as a fact that she provided service to the applicant when she was otherwise not working and able to be home.
23There is insufficient indication that the applicant's wife worked more than three days a week before the accident. The applicant provided his wife's pay stubs from December 2011 to August 2016. There are over 50 pay stubs and there are some gaps in the dates, likely because she did not work during this time. No explanation was provided on how to read the pay stubs, and there is no evidence linking the pay stubs to an inference that the applicant's wife worked more than three days a week before the accident. I have attempted to read the pay stubs to determine if she generally worked more than three days a week before the accident and I am unable to conclude that she does.
24There is insufficient indication that the applicant's wife had to work less after the accident in order to provide professional care to the applicant. The applicant submits that his wife had to stop working in order to care for him. However, for the reasons given earlier I reject that submission. I am aware that she worked on behalf of Seniors For Seniors in August 2015. This does not establish that she had to forgo work in order to care for the applicant. Indeed, there is no such evidence before the Tribunal.
25The applicant's wife's rate of service to the applicant after December 2014 further indicates that her conduct is outside the scope of s.3(7)(e)(iii)(A). After she was unable to service her Seniors For Seniors client in January 2015, there was no work available for her. It was at this time that she increased her rate of service to the applicant from four days per week to seven days per week. In my view this indicates a wife supporting her husband during her free time, and doing so without remuneration. Moreover, if the applicant's wife was providing service to the applicant in her professional capacity one would expect her care toward him to decrease when she returned to work. However, there is no indication that the care decreased in August 2015 when the applicant's wife returned to working on behalf of Seniors For Seniors.
26I have little doubt that the applicant needs attendant care. I imagine that the care provided to him by his wife2 is hard work. While the applicant's wife's service to the applicant is laudable, the Legislature has determined that it is not compensable under s.7(e)(iii)(A).
ii. The Personal Class: s.7(e)(iii)(B)
27The applicant is entitled to an attendant care benefit under this provision if he can show that his wife sustained an economic loss in providing her service. Analytically, I have no difficulty in concluding that the applicant's wife falls within this class. She is a family member who took time to care for her ailing husband – and she happens to have professional qualification for the service she provided. However, s. 3(7)(e)(iii)(B) requires that the applicant show that his wife sustained an economic loss as a result of providing her service. There is insufficient evidence of such economic loss in light of the factual conclusions I have drawn.
Conclusion
28The applicant is not entitled to an attendant care benefit because he has not proven that he incurred the expense for this benefit in the manner required under s.7(e)(iii) of the Schedule. Because of this conclusion, the Applicant is not entitled to interest. The applicant submits for costs. There were no submissions on this issue and I see no evidence of Certas acting unreasonably, frivolously, vexatiously, or in bad faith in the proceeding. The costs claim is dismissed.
29All three of the Applicant's claims are denied.
Released: January 27, 2017
Chris Sewrattan, Adjudicator