Tribunal File Number: 17-002054/AABS
Case Name: 17-002054 v Wawanesa Mutual 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:
W.E.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
For the Applicant: Ray Di Gregorio, counsel
For the Respondent: Kathleen O'Hara, counsel
HEARD: Written Hearing: September 14, 2017
Overview
1The applicant was involved in a motor vehicle accident on December 30, 2014. Shortly after the accident, the applicant began to develop pain in her lower back and right shoulder. She immediately realized that she could no longer complete the housekeeping and home maintenance tasks that she normally performed before the accident to the standard and frequency that she had done before. The applicant’s sister took a leave of absence from her place of employment and assisted the applicant with her housekeeping and home maintenance tasks for the time period from January 2015 until the end of October 2016. As a result, the applicant sought entitlement to a housekeeping and home maintenance benefit pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The respondent denied the applicant’s entitlement to the housekeeping and home maintenance benefit due to the findings contained in Mr. Jung’s Occupational Therapy Assessment Report dated December 12, 2016. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference but the parties were unable to resolve this dispute. An additional issue was added at the case conference as the applicant claimed that the respondent should reimburse her for the cost of obtaining her employment file.
Issues
3Is the applicant entitled to receive a housekeeping and home maintenance benefit in the amount of $8,800.00 for the time period from December 30, 2014 to December 30, 2016?
4Is the applicant entitled to be reimbursed by the respondent for the cost of obtaining the applicant’s employment file from Joseph Brant Hospital?
5Is the applicant entitled to interest on any overdue payment of benefits?
Result
6I find that the applicant has not met her onus of establishing on a balance of probabilities, that she is entitled to:
I. A housekeeping and home maintenance benefit in the amount of $8,800.00 for the time period from December 30, 2014 to December 30, 2016.
II. Be reimbursed by the respondent for the cost of obtaining the applicant’s employment file from Joseph Brant Hospital
III. Interest as no benefits are payable.
Discussion
7Under the Schedule, housekeeping and home maintenance benefits are restricted to those who have either sustained a catastrophic impairment or have purchased the optional benefit. In this case, the applicant purchased the optional benefit and is therefore entitled to the housekeeping and home maintenance benefit if she meets the statutory requirements laid out in s. 23 of the Schedule.
8The test under s. 23 of the Schedule requires a consideration of the following:
I. The housekeeping and home maintenance services that the applicant normally performed before the accident;
II. Whether the applicant suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident; and
III. If a substantial inability is found, whether the expenses incurred as a result of that substantial inability are reasonable and necessary.
The Housekeeping and Home Maintenance Services the Applicant Normally Performed Before the Accident
9The applicant’s affidavit sets out the housekeeping and home maintenance tasks that the applicant normally performed before the accident. They include: vacuuming, sweeping and mopping, dusting, cleaning the washrooms, doing the laundry, preparing and cooking meals, grocery shopping, snow shoveling, gardening and mowing the lawn.
Did the Applicant Suffer a Substantial Inability?
10The applicant submits that she suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident due to the pain she experienced in her lower back and right shoulder.
11In her affidavit, the applicant explained that these injuries resulted in her being unable to complete tasks that require her to sit for prolonged periods of time, bend down to levels below the waist, lift or move heavy objects requiring both arms, or complete repetitive movements of her right arm/shoulder.
12On February 4, 2015, the applicant went to see her family doctor, Dr. Sabouba, as the pain in her lower back and right shoulder continued. Dr. Sabouba diagnosed the applicant with a lumbar strain and tendonitis of the right shoulder. An ultrasound of the right shoulder, dated February 13, 2015, revealed a rotator cuff tendinopathy without a tear. A subacromial subdeltoid bursitis with bursal impingement was noted.
13Ms. Bennett, physiotherapist at Westmount Physiotherapy, completed a Disability Certificate on April 29, 2015. The Disability Certificate noted that the applicant was suffering from burstis/strain of the shoulder, sprain/strain of the lumbar spine and a WAD I type injury.
14I am satisfied that the applicant suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident due to the pain she experienced in her lower back and right shoulder. The applicant’s affidavit in conjunction with the medical evidence in its entirety has persuaded me that this is the case.
15The respondent’s denial of the applicant’s entitlement to the housekeeping and home maintenance benefit, was based in part, on the findings contained in Mr. Jung’s Occupational Therapy Assessment Report dated December 12, 2016. In that report, Mr. Jung concluded that the applicant does not currently suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. I assign Mr. Jung’s assessment and corresponding report little weight as it only addresses the applicant’s functioning at the time of the assessment which was completed on December 5, 2016. His assessment and report provide me with very little insight into the applicant’s functioning for the majority of the time period in dispute.
16The respondent also directs me to the Disability Certificate completed by Ms. Bennett on April 29, 2015 in support of its denial of the housekeeping and home maintenance benefit. First, the Disability Certificate noted that the applicant was working full time hours and full duties as a registered practical nurse. The respondent submits that this speaks to the applicant’s functional abilities and is evidence of her ability to perform the housekeeping and home maintenance services that she normally performed before the accident.
17I disagree with the respondent’s submission. The applicant, by way of her affidavit, provided details of her work related restrictions and explained that she regularly worked through pain. She further explained that she did not report her restrictions and/or pain to her employer as she was still within the probationary period and wanted to maintain her employment. I find the applicant’s evidence to be compelling in this regard. Her ability to continue working full time hours and full duties as a registered practical nurse within the context that she described does not compel me to conclude that she was able to perform the housekeeping and home maintenance services that she normally performed before the accident.
18Second, the respondent directs me to part 6 of the Disability Certificate wherein Ms. Bennett indicated that the applicant did not suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. The applicant submits that she provided Ms. Bennett with details regarding her struggles to complete her housekeeping and home maintenance task and is unsure why Ms. Bennett “incorrectly” filled out this portion of the Disability Certificate.
19After reviewing the totality of the evidence before me I place little weight on this portion of the Disability Certificate. The applicant applied for accident benefits on April 1, 2015. Under part 7 of the Application for Accident Benefits, the applicant described difficult cooking, cleaning, bathing the kids; unable to shovel snow or do yard work; difficulty at work (need to take more pain meds to get through shifts) and difficulty sleeping due to pain in arm and back.
20The applicant attended physiotherapy at Westmount Physiotherapy from April 10, 2015 to September 20, 2016. The initial intake form noted that the applicant explained that turning the steering wheel, cutting up vegetables, brushing her daughter’s hair and repetitive movements aggravated her symptoms. The applicant also indicated that she had severe difficulty with doing heavy household chores (wash walls/floors), carrying a shopping bag/brief case and was unable to cut food with a knife. Her shoulder pain was rated as being extreme.
21On September 20, 2016, Ms. Bennett completed a subsequent Disability Certificate wherein she noted that the applicant was suffering from a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. She further noted that the applicant continued to work full time hours and full duties despite the pain she was experiencing because she did not want to jeopardize a potential full time job offering. Ms. Bennett went on to explain that the applicant would benefit from some assistance at home and that this was not discussed in detail at the time the first Disability Certificate was submitted.
22I am satisfied, on a balance of probabilities that the objective medical evidence before me, in conjunction with the applicant’s affidavit, demonstrates that the applicant was suffering from a complete inability to perform the housekeeping and home maintenance tasks that she normally performed before the accident.
Where the Expenses Incurred?
23Section 3(7)(e) of the Schedule sets out the definition of “incurred” and states that an expense is not incurred unless:
I. The insured person has received the goods or services to which the expense relates;
II. The insured person has paid the expense, has promised to pay the expense, or is otherwise legally obligated to pay the expense, and;
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.
24I am satisfied that the applicant actually received the housekeeping and home maintenance services provided by her sister. I rely on the applicant’s affidavit and submitted OCF-6s and accompanying forms as being accurate.
25I am also satisfied that a legal obligation to pay for the services exists. Paragraph 28 of the applicant’s affidavit speaks to this issue. Although the applicant has not yet paid for the services provided, she has promised her sister that she will be compensated in the future. I find that this promise creates the requisite legal obligation contemplated under section 3(7)(e)(II) of the Schedule.
Did the Service Provider Suffer an Economic Loss?
26Section 3(7)(e)(III) of the Schedule provides for two different classes of service provider:
(A) Professional providers who are typically, though not necessarily, at arms-length from the applicant; and
(B) The applicant’s family or friend who sustain an economic loss as a result of providing the service.
27There is no evidence before me to suggest that the applicant’s sister provided the housekeeping and home maintenance services in the course of her employment, occupation or profession. As such, the applicant would be entitled to the housekeeping and home maintenance benefit if she can show that her sister sustained an economic loss as a result of providing her services.
28The evidence before me does not establish, on a balance of probabilities, that the applicant’s sister sustained an economic loss as a result of providing her services. Paragraph 25 of the applicant’s affidavit states “my sister took a leave of absence from her place of employment and assisted me while I recovered from my injuries.” This is the only evidence I was directed to in this regard. This statement alone does not compel me to conclude that the applicant’s sister sustained an economic loss as a result of providing her service. As such, the applicant has failed to establish, on a balance of probabilities, that she incurred an expense as required by the Schedule.
Deemed Incurred
29The applicant submits that the housekeeping and home maintenance expense should be deemed incurred under section 3(8) of the Schedule as the respondent unreasonably withheld or delayed payment of the housekeeping and home maintenance benefit.
30The applicant takes the position that the respondent failed to promptly provide her with a written explanation of the benefits available as required under section 32(1) of the Schedule. Without this knowledge, the applicant was unable to pursue her entitlement to the housekeeping and home maintenance benefit since she did not know that it existed. She asserts that had she been aware of her potential entitlement to the benefit, she would have sought out additional evidence, medical or otherwise, to support her entitlement to the benefit during the time frame in which she was eligible. The applicant also asserts that she was not made aware of the strict requirements contained in the Schedule as to how the housekeeping and home maintenance costs should be incurred. As a result, the applicant submits that this benefit was unreasonably withheld and should be deemed to be incurred.
31I am not persuaded by the applicant’s submission that the respondent unreasonably withheld or delayed payment of the housekeeping and home maintenance benefit.
32The applicant submitted its Application for Accident Benefits on April 15, 2015. On April 20, 2015, the respondent replied to the applicant by way of letter. The letter stated that “housekeeping and caregiver benefits are only available if you have previously purchased the optional benefits on your automobile policy and you meet the test of disability for these benefits.”
33Following this, the applicant submitted the Disability Certificate completed by Ms. Bennett on April 29, 2015 wherein she noted that the applicant did not suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. The respondent then, by way of an OCF-9 dated May 7, 2015, advised the applicant that she was not eligible for housekeeping and home maintenance benefit as her disability certificate did not support a substantial inability to perform your regular housekeeping and home maintenance tasks.
34I find that the respondent properly notified the applicant that the housekeeping and home maintenance benefit was available to her. I do not agree with the applicant’s submission that this notice requirement places an onus on the respondent to make the applicant aware of the strict requirements contained in the Schedule as to how the housekeeping and home maintenance costs should be incurred. I was not directed to any authority on this point.
35Section 3(8) of the Schedule imposes an objective standard of reasonableness. I find that the respondent’s conduct met this standard of reasonableness. The denial of the housekeeping and home maintenance benefit was reasonably based on the information the respondent had at that time. As such, the applicant has failed to establish, on a balance of probabilities that the deemed incurred provision as laid out in section 3(8) of the Schedule applies in this case.
Reimbursement for the Cost of Obtaining the Applicant’s Employment File
36The applicant submits that she should be reimbursed for the cost of obtaining her employment file pursuant to section 19 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”).
37Section 19 of the Rules states “where a party believes that another party in a proceeding has acted unreasonable, frivolously, vexatious, or in bad faith, that party may make a request to the Tribunal for costs.
38The applicant submits that the respondents request for the applicants employment file was unreasonable and/or frivolous and thus reimbursement for the cost of obtaining the file is warranted.
39I am not persuaded by the applicant’s submission. The respondent requested the applicant’s employment file in order to ascertain her job duties and post-accident accommodations (if any) in order to help understand the applicant’s functional abilities during the time period in dispute. I find this to be a reasonable request when trying to assess the applicant’s ability to perform housekeeping and home maintenance services. As a result, I find that the applicant has not met her onus of establishing on a balance of probabilities, that she is entitled to costs under section 19 of the Rules.
Conclusion
40For the reasons outlined above, I find that the applicant has not met her onus of establishing on a balance of probabilities, that she is entitled to a housekeeping and home maintenance benefit in the amount of $8,800.00 for the time period from December 30, 2014 to December 30, 2016. I also find that the applicant has not met her onus of establishing on a balance of probabilities that she is entitled to be reimbursed by the respondent for the cost of obtaining the applicant’s employment. The applicant is not entitled to interest as no benefits are payable.
Released: March 14, 2018
Paul Gosio, Adjudicator