Licence Appeal Tribunal
Tribunal File Number: 16-004273/AABS
Case Name: 16-004273 v Allstate 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:
V. K.
Applicant
and
Allstate Insurance Company
Respondent
DECISION
Adjudicator: Anna Truong
Appearances:
For the Applicant: S.K., the applicant’s Mother Anton Serikov, Paralegal
For the Respondent: Theresa Spilchak, Allstate Claims Representative Andrew McKague, Counsel
Russian Interpreter: Valeriy Budargin
Court Reporter: Noemi Panameno
Observer: Corey Glasberg
Heard in-person and in writing on: October 30 and 31, 2017
OVERVIEW
1V.K. (the “applicant”) was involved in an automobile accident on September 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), which were denied by the respondent.
2The 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 the issues in dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided:
- Is the applicant entitled to attendant care benefits from September 4, 2015 and ongoing for varying amounts claimed?
- Is the applicant entitled to receive a medical benefit outlined in an OCF-6 Expense Form in the amount of $130.00 for optometric services, submitted on July 15, 2016?
- Is the applicant entitled to receive a medical benefit outlined in an OCF-6 Expense Form in the amount of $325.00 for prescription eyewear, submitted on June 1, 2016?
- Is the applicant entitled to receive a rehabilitation benefit outlined in an OCF-6 Expense Form in the amount of $1,785.00 for transportation expenses, submitted on October 14, 2016?
- Is the applicant entitled to receive a medical benefit outlined in an OCF-6 Expense Form in the amount of $2,500.00, submitted as an estimate for laser treatment submitted on October 14, 2016?
- Is the applicant entitled to interest and an award pursuant to section 10 of Ontario Regulation 664 (“O/Reg 664”)?
RESULT
4Based on the totality of the evidence before me, I find the applicant is not entitled to any of the attendant care and medical and rehabilitation expenses claimed. I also find the applicant is not entitled to interest or an award.
ANALYSIS
5A two day in-person hearing was conducted. S.K., the applicant’s mother, and Diane Lang and Rasul Kassam, both occupational therapists, all testified and were cross-examined. Both parties submitted written submissions prior to the in-person portion of the hearing. I have reviewed all the submissions and evidence led and I have only summarized what I found relevant to my determination below.
1. Attendant Care
6Section 19 of the Schedule states attendant care benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person for services provided by an aide or attendant as a result of the accident.
7Subsection 19(4) states if a person who provided attendant care services did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.
8According to section 19, attendant care benefits are only payable if they have been incurred. Subsection 3(7)(e)(iii)(B) states an expense is not incurred unless the person who provided the services sustained an economic loss as a result of providing the goods or services to the insured person.
9The applicant claims attendant care benefits in varying amounts from September 4, 2015 and ongoing provided by her mother, S.K. There is no disagreement over S.K.’s status as a non-professional attendant care provider. Therefore, in order for attendant care benefits to be payable, S.K. must prove she has sustained an economic loss in providing attendant care services to the applicant.
10S.K. worked full-time as an assistant manager at Trivita Healthcare since April 2014. S.K. testified she was considered self-employed and paid her own taxes. She testified she was paid a base salary of $2,200 per month plus commission and she was paid 50% in cash and 50% in cheque. She testified she deposited all her cheques into her bank account, but not her cash.
11In a letter from Trivita Healthcare dated January 8, 2016, her employer stated S.K. earned $4,000 per month paid by straight cheque and she was responsible for paying her own taxes. Her employer further stated since they did not make any deductions, they did not keep any paystubs. After this letter was put to S.K. during cross-examination, S.K. then changed her testimony and agreed she earned $4,000 per month, but maintained she was paid by combination of cash and cheque, not straight cheque as the letter states.
12The respondent then put her 2015 Notice of Assessment (“NOA”) to her during cross-examination. Her 2015 NOA indicates she earned $18,212 in total income for 2015. The respondent pointed out to S.K. that such an amount is not equivalent to $4,000 per month. S.K. explained the discrepancy by stating she only reported income according to her T4A and she purposely did not report any cash she received. S.K. further testified her employer was paying her more than the income they reported to the Canada Revenue Agency (“CRA”) on her T4. I note S.K. only worked from January to early September in 2015, so even being generous and using 8 months, her total income reported is still in discrepancy with her testimony, her employer’s records, her T4 and her NOA from the CRA.
13In support of her claim of economic loss, S.K. provided bank records from two banks: Credit Union and TD Bank. Both records provided are only from June 2015 to the end of December 2015. These were also put to her during cross-examination. The respondent pointed out deposits in both bank accounts did not corroborate her testimony with respect to her earnings. S.K. explained she had another bank account. The respondent further questioned why her TD Bank records end as of December 31, 2015, when she was claiming ongoing economic loss past this date. S.K. testified she closed the account after that date.
14S.K. filed for bankruptcy on December 1, 2015, just three months after the applicant’s accident. S.K. received her discharge from bankruptcy on September 2, 2016, which states “automatic discharge on the expiry of 9 months for first-time bankrupts without surplus income”. On September 6, 2016, just four days after S.K. was discharged from bankruptcy, she returned to work. While there is no doubt S.K. filed for bankruptcy, there is no evidence before me the bankruptcy was as a result of her providing attendant care services to the applicant.
15The onus is on the applicant to prove on a balance of probabilities S.K. sustained an economic loss for the entire period attendant care benefits are being claimed. Based on the limited and unreliable evidence before me, the applicant has not met her onus of proving S.K. sustained an economic loss. S.K.’s testimony is unreliable and contradicted by documentary evidence. She even contradicted herself and changed her testimony during the hearing. By her own admission, her NOA, T4 and employment letters are unreliable and not representative of her earnings. Her bank records are insufficient and incomplete. Furthermore, S.K. admitted to having another bank account, which was not produced as evidence for the hearing. S.K. has not provided any reliable evidence to show her pre-accident earnings and without that, I cannot determine if she sustained an economic loss.
16Since I found S.K. has not sustained an economic loss, the applicant’s claim for attendant care benefits has not met the definition of “incurred” pursuant to the Schedule. Therefore, she is not entitled to payment for any of the attendant care expenses claimed.
2 & 3. OCF-6 Expense Forms for $325 and $130
17Section 14, 15 and 16 of the Schedule provides an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the expense is reasonable and necessary.
18The applicant claims $325 for prescription eyewear and $130 for a comprehensive eye exam. During the hearing, the applicant made insufficient submissions as to why these medical expenses in dispute are reasonable and necessary. In fact, the applicant did not argue these medical expenses in dispute are “reasonable and necessary”. The applicant submits she requires an eye exam and prescription glasses, because of the injuries she sustained in the accident. The applicant pointed to three tabs within her document brief to support this: the clinical notes and records (“CNRs”) of Dr. Piliamm, the CNRs of Dr. Habib and the Oculo-visual Report of Dr. Lowy.
19The applicant did not point me to a specific record of Dr. Piliamm. Dr. Piliamm’s records are 85 pages long and from my own independent review of these records, there is nothing supportive of the applicant’s need for glasses as a result of the accident. Dr. Habib provides a prescription for eye glasses, but does not make any findings with respect to causation. Dr. Lowy specifically states he cannot comment on whether or not the accident made the applicant’s vision worse, because he did not see her pre-accident.
20The applicant’s main argument with respect to these medical benefits is she never wore prescription glasses pre-accident and post-accident, she began experiencing blurry vision and now requires glasses. I am not persuaded by this argument. Just because an applicant did not have a condition pre-accident and she does post-accident, it does not mean the accident caused the condition. Put simply, correlation is not causation. The applicant must adduce some evidence of causation for causation to be established. She has failed to do so.
21For the reasons above, I find the applicant has not met her onus of proving on a balance of probabilities the medical expenses in dispute are reasonable and necessary. Therefore, the applicant is not entitled to any of the medical benefits claimed.
4. OCF-6 Expense Form for $1,785
22The applicant submitted an OCF-6 Expense Form on October 14, 2016, in the amount of $1,785 claiming transportation expenses.
23Subsection 15(2)(c) of the Schedule states an insurer is not liable to pay for transportation expenses other than authorized transportation expenses. Authorized transportation expenses are outlined in the Financial Services Commission of Ontario (“FSCO”) Superintendent's Guideline No. 04/16: Transportation Expense Guideline (the “Guideline”). This Guideline states the insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from treatment sessions, counselling sessions, training sessions, assessments or examinations. This list is exhaustive.
24During the hearing, S.K. testified the OCF-6 Expense Form submitted June 1, 2016, in the amount of $1,785 is for taxis taken by the applicant for transportation to and from school. While I am sympathetic to the situation the applicant was placed in, this is not an authorized transportation expense under the FSCO Guideline. Subsection 15(2)(c) is clear, the respondent only has to pay for authorized transportation expenses. Since taxis to and from school do not constitute an authorized transportation expense under the FSCO Guideline, the applicant is not entitled to the OCF-6 Expense Form in the amount of $1,785.
5. OCF-6 Expense Form for $2,500
25The applicant submitted an OCF-6 Expense Form on October 14, 2016, in the amount of $2,500, which is an estimate for laser treatment for accident related scarring. The respondent argues this expense cannot be paid pursuant to subsection 38(2), because the applicant has not submitted a treatment plan.
26Subsection 38(3) outlines requirements a treatment plan must meet. Subsection 38(2) states an insurer is not liable to pay an expense before the insured submits a treatment plan which satisfies the requirements in subsection 38(3), unless the insurer provides notice under subsection 39(1) it is willing to pay for the expense without a treatment plan. In this matter, the respondent has not provided such notice.
27The Schedule codifies specific obligations for both the insured and insurer. Both are bound by these obligations. While I understand the purpose of the Schedule is consumer protection, it does not mean an insured can breach their obligations while expecting the insurer to keep its obligations. Both the insured and the insurer must abide by their obligations under the Schedule for the system to work. To require one party to strictly adhere to their obligations while allowing the other to abandon theirs would be a breach of natural justice and procedural fairness.
28For these reasons, I find the applicant is not entitled to the OCF-6 Expense Form in the amount of $2,500 pursuant to subsection 38(2). However, I note this does not preclude the applicant from submitting a treatment plan for these services in the future.
6. Interest and An Award Pursuant to Section 10 of O/Reg 664
29Since I found nothing payable, the applicant is not entitled to interest or an award pursuant to section 10 of O/Reg 664.
CONCLUSION
30For the reasons outlined above, I find the applicant is not entitled to the attendant care and medical and rehabilitation expenses claimed. I also find the applicant is not entitled to interest or an award pursuant to section 10 of O/Reg 664.
Released: March 27, 2018
_____________________________
Anna Truong, Adjudicator