Licence Appeal Tribunal
Tribunal File Number: 17-007027/AABS
Case Name: 17-007027 v Aviva General Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
K.T.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Craig Mazerolle
APPEARANCES:
For the Applicant: Louis DelSignore, Counsel
For the Respondent: Geoffrey Keating, Counsel
Held by Written Hearing: May 28, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on or around January 19, 2016. She applied for statutory accident benefits payable under the Statutory Accident Benefits Schedule — Effective September 1, 20101 (the "Schedule"). These benefits included payments for attendant care services.
2The respondent agreed to pay for this benefit from April 25, 2016 to March 17, 2017. After receiving a report from one of its occupational therapists, Mihwa Lee, the respondent terminated the benefit. As such, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute. Specifically, she is asking this Tribunal to deem these services as having been incurred.
RESULT
3After reviewing the parties' submissions and evidence, I am not satisfied that there was a promise to pay for services rendered, nor did the respondent unreasonably withhold or delay payment of the disputed benefit such that it can be deemed incurred. Therefore, I find that the applicant is not entitled to any attendant care benefits, nor is there any interest owing.
ENTITLEMENT TO ATTENDANT CARE BENEFITS
4Entitlement to attendant care benefits is determined under s. 19 of the Schedule. Briefly, insurers are responsible for paying all reasonable and necessary expenses for the attendant care services that an insured person incurs as a result of an accident. If an expense has not been paid for by an insured person—or if there is no promise to pay for services rendered—the Tribunal may still deem an expense to have been incurred if "an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit": see s. 3(8).
5Furthermore, unless an insured person is found to have been catastrophically impaired, an insurer is only required to pay this benefit for 104 weeks post-accident. In this present case, unless the applicant is one day found to have been catastrophically impaired, there can be no ongoing entitlement to attendant care benefits beyond January 16, 2018.
6Since the applicant has admitted that no expenses were incurred past March 17, 2017, I must first determine whether the disputed benefits from March 17, 2017 to January 16, 2018 can be deemed incurred. If so, I will then determine whether the expenses are reasonable and necessary for addressing the applicant's injuries.
ANALYSIS
7The applicant has the onus of demonstrating—on a balance of probabilities—that the respondent has unreasonably withheld or delayed payment of the disputed benefit. The applicant states that she used the attendant care services when the benefit was provided by the respondent, and she only stopped incurring these costs when she "could not afford to pay for [the] services out-of-pocket." The respondent contends that it did not unreasonably withhold or delay payment of the benefit. Rather, as evidenced by the lack of attendant care invoices forwarded to the respondent, the applicant never intended to incur these expenses.
8In determining that the respondent did not act unreasonably in deciding to terminate the benefit, a review of the process used by the respondent in reaching this decision is necessary.
9After paying the benefit from April 25 to December 29, 2016, the respondent requested an updated Assessment of Attendant Care Needs. In response, the applicant's treating occupational therapist provided the respondent with an updated assessment. The applicant's therapist found that she still required attendant care services, though at a lesser amount. Shortly thereafter, the respondent requested that the applicant attend an insurer's examination with Ms. Lee.
10Ms. Lee met with the applicant in her home; interviewed the applicant about her needs and impairments; and then she conducted a series of tests to observe the applicant's physical abilities. While this report found that the applicant was required to perform a number of activity modifications to control her accident-related symptoms, Ms. Lee ultimately concluded that there was no ongoing need for attendant care services. Relying on this report, the respondent stopped paying for attendant care benefits on March 17, 2017.
11In determining whether I can deem the applicant's attendant care benefits as being incurred, the question before me is not, "Would I have reached the same decision as the respondent to withhold this benefit?" Rather, I am being asked to determine if the respondent "unreasonably withheld or delayed payment of a benefit".
12Considering that the respondent initially accepted the applicant's need for attendant care, and only stopped paying this benefit after receiving an assessor's opinion derived from an in-depth meeting with the applicant, I am satisfied that the respondent's decision was not unreasonable. Additionally, I have not been provided with evidence to suggest that a promise was made to pay for services rendered. As such, I do not deem these expenses as having been incurred.
13The applicant asked me to put more weight in her treating occupational therapist's assessment than Ms. Lee's assessment. Beyond having a longer standing relationship with her than Ms. Lee, the applicant also argues that her occupational therapist used the correct test in determining that she still required attendant care services. That is, her occupational therapist looked at whether the proposed services were "reasonable and necessary", while Ms. Lee focused on whether the applicant was "independent in all of her personal care activities".
14While I accept that the applicant's occupational therapist has had a longer professional relationship, upon reviewing Ms. Lee's assessment of the applicant's physical capabilities, I am satisfied that she turned her mind and professional expertise to the appropriate factors when reaching her conclusions. As such, it was not unreasonable for the respondent to rely on this report.
15The applicant also directed my attention to case law that supports an interpretation of the Schedule that protects insured persons: see Coombe v. Constitution Insurance.2 I have considered the importance of upholding this mandate in my decision, but I have still not been provided with sufficient evidence to demonstrate that these expenses should be deemed as incurred.
16Finally, the applicant provided me with a copy of a report from her physiatrist (dated February 23, 2018). In this report, the assessor found that the applicant "would benefit from assistance with her housekeeping and home maintenance." Since this report was produced outside of the 104 week period that she could have received this benefit, it would not have played a role in the respondent's decision to deny the benefit in question. Also, I would again reiterate that the test I am being asked to apply is not whether the respondent correctly determined that the applicant was no longer entitled to this benefit, but whether this determination was unreasonable.
CONCLUSION
17The applicant has not demonstrated her entitlement to the attendant care benefits in dispute. Since there is no amount owing, there can be no interest.
Released: July 19, 2018
___________________________
Craig Mazerolle
Adjudicator
Footnotes
- O. Reg. 34/10.
- (1980) 1980 CanLII 1715 (ON CA), 29 O.R. (2d) 729 (C.A.), at para. 19.