Licence Appeal Tribunal
Tribunal File Number: 17-005010/AABS
Case Name: 17-005010 v Aviva Insurance Canada
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:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Erin Murray, Counsel
For the Respondent:
Sharla Bandoquillo, Counsel
Heard:
In Writing on April 3, 2018
OVERVIEW
1The applicant was injured in an automobile accident on September 12, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The respondent refused to pay for certain attendant care benefits. As a result, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
i. Is the applicant entitled to attendant care benefits as follows:
a. $2,830.57 per month, less any amounts paid, for the period September 12, 2015 to September 14, 2016; and
b. $1,127.09 per month, less amounts paid, for the period September 15, 2016 to September 12, 2017?
ii. Is the applicant entitled to an award for payments unreasonably withheld or delayed under section 10 of Ontario Regulation 664?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to any attendant care benefits in addition to that which the applicant has already received. -
4The applicant is entitled to an award in the amount of $2,166.15.
5No interest is payable.
BACKGROUND
6The applicant was involved in an accident on September 12, 2015 and suffered a broken rib, soft tissue injuries, and headaches as a result of the accident. The applicant participated in an in-home assessment on December 1, 2015 which resulted in the production of an assessment of attendant care needs form ("Form 1"). Upon receipt of the Form 1, the respondent requested the applicant attend a section 44 assessment to get a second opinion on the applicant's level of impairment, The section 44 assessment occurred on February 2, 2016. The respondent provided the applicant with its Form 1 on February 12, 2016 and advised that it would pay for services incurred up to the limit outlined in the second Form 1.
7The applicant started to receive attendant care services from Neural Rehab in April of 2016. The first invoice from Neural Rehab was sent to the respondent on May 17, 2016, for services provided during the month of April 2016.
8On December 15, 2016, the applicant participated in another section 25 in-home assessment. The Form 1 produced as a result of that assessment and sent to the respondent on January 31, 2017, noted a monthly attendant care benefit up to $1,127.09 per month. The applicant claims entitlement to a monthly attendant care benefit for this amount up to September 12, 2017, the 104 week limit for non-catastrophic injuries.
Entitlement to attendant care benefits
9This hearing can be broken down into two time periods. The first period starts on December 12, 2015, when the first Form 1 was provided by the applicant up to when the applicant started to incur attendant care services in April 2016. The second period spans the date the applicant started to incur the services to the two-year mark on September 12, 2017, when entitlement to attendant care benefits automatically ends because the applicant has not suffered a catastrophic injury.
First Period
10In order to claim attendant care benefits, the applicant must provide the respondent with an Assessment of Attendant Care Needs, otherwise known as a Form 1, completed by an occupational therapist or a registered nurse. Following this, the applicant may submit the incurred attendant care expenses to the respondent for reimbursement.
11The applicant claims entitlement from December 12, 2015, when the Form 1 assessment took place. The applicant provided the respondent with the completed Form 1 on December 21, 2015.
12Pursuant to section 42(5), the respondent is not required to pay for an attendant care benefit prior to receipt of the applicant's Form 1. Considering this, I find the first period of entitlement to an attendant care benefit begins on December 21, 2015.
13The applicant submits that the Form 1 prepared by Janice Kim in the amount of $2,830.57 per month, for a total of 239.34 hours of care, should be deemed incurred pursuant to section 3(8) of the Schedule and should be preferred over the Form 1 completed by Sabrina Anand for the respondent. According to the applicant, the need for attendant care is due to significant pain, restriction of movement, and psychological distress which prevented the applicant from completing personal care tasks. The applicant also submits that the Form 1 provided by the respondent does not allot enough time for each area of care required by the applicant. The applicant submits that pursuant to section 3(8), the grounds for deeming the expense incurred is that the respondent unreasonably withheld payment of the benefit.
14The respondent agrees that the applicant is entitled to claim up to $2,830.57 per month for the period spanning December 21, 2015 to February 12, 2016, the date when the respondent received the first Form 1 to the date when the respondent provided the applicant with an updated Form 1.
15The respondent submits that the applicant did not incur any attendant care expenses during this period and is not entitled to any payment because of that.
16I agree with the respondent that there is no attendant care benefit payable for the period up to April 1, 2016 because the applicant did not incur any attendant care expenses during that time. I reject the applicant's request that I deem the expense incurred because the respondent never withheld or delayed payment of the benefit. The respondent, upon receipt of the Form 1 and within the section 44 assessment request, advised the applicant that it would pay any expenses incurred, subject to the $2,830.57 limit outlined in the Form 1 provided by the applicant. There was no delay and this notice was provided to the applicant by letter dated February 12, 2016.
17An analysis on the level of attendant care needed during this period is unnecessary because I have found that the applicant did not incur any attendant care expenses during this time period.
Second Period
18As previously noted, the second period spans from April 1, 2016, when the applicant begins to incur attendant care expenses, to the two year limit for non-catastrophic claims, which is September 12, 2017.
19The applicant claims entitlement in the amount of $2,830.57 per month up to and including September 16, 2016 and $1,127.09 per month from September 17, 2016 to September 12, 2017.
20The respondent's position is that the applicant was only entitled to up to $592.88 per month for attendant care services. Further, the respondent submits that as an act of good faith, it has paid for all of the attendant care services incurred by the applicant, which is more than what the applicant was entitled to, and that it is not obligated to pay more than what the applicant incurred.
21The applicant counters that additional attendant care services would have been incurred had the respondent not withheld payment and that the operation of section 3(8) is not an "all or nothing" provision. Put another way, the applicant submits that an insured can incur some attendant care expenses and have the remaining balance deemed incurred.
Can attendant care expenses be deemed incurred for a period in which some expenses were actually incurred?
22The applicant claims in an affidavit provided with the applicant's written submissions that additional attendant care services would have been incurred if the respondent didn't limit the applicant's entitlement to $592.88, or 44.075 hours per month according to the February 12, 2016 Form 1.
23The respondent disputes the validity of this claim because it contradicts the applicant's actual behaviour. The respondent submits that following the December 11, 2015 Form 1 it agreed to pay for attendant care expenses incurred by the applicant up to the $2,830.57 limit provided by the Form 1. However, the applicant did not incur any attendant care expenses until April 1, 2016, after a second Form 1 was completed as a result of the section 44 assessment commissioned by the respondent.
24The respondent further submits that three criteria must be met in order for an expense to be deemed incurred: 1) The expense was not incurred, 2) the insurer unreasonably withheld or delayed payment of the benefit, and 3) the reason the expense was not incurred was because of the insurer's failure or refusal to pay.
25First, I disagree with the respondent's position that incurring any expenses precludes the applicant from having additional expenses deemed incurred pursuant to section 3(8) of the Schedule. It is possible that the applicant would have incurred additional expenses but for the respondent's position. The Schedule does not expressly state that an applicant incurring a portion of an expense bars an adjudicator from finding that any additional expenses would have been incurred but for the unreasonable withholding or delay in payment.
26Second, the applicant's statement in the affidavit provided does not persuade me to overlook the applicant's inaction in obtaining attendant care services during the period spanning December 2015 to April 1, 2017. The respondent advised the applicant that there was entitlement up to $2,830.57 per month and that the respondent would pay for any attendant care expenses during this period, subject to the monthly limit, yet the applicant did not incur any expenses. The applicant states that attendant care services were incurred following the respondent's approval of the benefit on February 12, 2016. This is factually incorrect because on December 31, 2015 the respondent advised the applicant that it would pay for attendant care services incurred.
27Third, the applicant did not incur more attendant care services than that which was suggested in the respondent's Form 1 dated February 12, 2016. The attendant care funding recommendation as a result of the respondent's section 44 assessment, approved up to $592.88 per month for up to 44.075 hours or services per month. The applicant, during the period in which attendant care services are being claimed, incurred on average 18.14 hours of care per month and, but for April and August 2016 when the applicant incurred 36 and 23 hours of care respectively, the applicant never incurred more than 17 hours of care per month. Additionally, the applicant incurred attendant care services at the hourly rate of $30.00, which is substantially higher than the $19.35 hourly rate proposed in the Superintendent's Guideline1.
28Considering the Schedule, the submissions, and evidence provided, I find that the applicant incurred attendant care expenses according to the applicant's needs and that the respondent's adjusting of the claim did not impact the amount of attendant care services incurred by the applicant. Accordingly, I will not deem any additional attendant care benefits as incurred.
29I acknowledge that the applicant submitted an additional Form 1 dated September 17, 2016, recommending attendant care services at 87.2 hours per month for a total of $1,127.09. The submission of this Form 1 does not change my finding above because the applicant continued to consume attendant care services at essentially the same rate as prior to the completion of the Form 1 and the respondent has paid for all services incurred. The applicant's claim for attendant care is limited to two years because the applicant does not claim to be catastrophically impaired and the respondent has paid for all attendant care services incurred for this period.
Did the respondent unreasonably withhold payment?
30The applicant claims entitlement to an award pursuant to section 10 of Regulation 664 because the respondent unreasonably withheld payment of the attendant care benefit. The applicant submits that the respondent unreasonably ignored the results of a section 44 report for over a year, took too long to pay the benefit, and that such behaviour is deserving of an award.
31The respondent's position is that the applicant is not entitled to an award because the applicant was not subject to any prejudice during the period before payment to the attendant care services provider. The respondent does not deny there was a delay in payment and takes the position that the delay affected the service provider and not the applicant. I infer from the respondent's position and because the invoices were addressed directly to the respondent that it made an arrangement to be invoiced directly by the service provider pursuant to section 48(2)(a).
32Pursuant to section 10 of Regulation 664, an award may be granted when the Tribunal finds that the respondent has unreasonably withheld payment of a benefit.
33Considering the submissions, evidence, and for the following reasons, I find that the respondent unreasonably withheld payment of attendant care benefits and order the respondent to pay the applicant $2,166.15.
34The respondent does not dispute that it withheld payment and does not provide an explanation for the delay. It is reasonable that the respondent may have had questions regarding the invoices considering the lack of breakdown in services provided and the hourly rate charged. However, the respondent, by operation of section 46.2, can request additional information from the service provider and there is no evidence or argument before me that the respondent exercised this option. There is no reason why the respondent did not pay the invoices in a timely manner. Given the results and recommendations of the section 44 report that it had in its possession from February 2016, I find the respondent's delay and withholding to be unreasonable.
35There is no evidence that the attendant care service provider withheld services as a result of the respondent's failure to pay and the ultimate impact of the delay of payment on the applicant was minimal, if any. For these reasons, the award is set at 25% of the $8,664.59 in attendant care expenses incurred.
INTEREST
36The applicant claims entitlement to interest on overdue payments pursuant to section 51.
37The respondent holds the position that no interest is payable. It submits that there is no evidence that the applicant paid out of pocket for the services, nor is there evidence of a demand for payment by the service provided or any threat to cut off services.
38Pursuant to section 51 of the Schedule, an insurer shall pay interest on benefits which are not paid within the time required.
39Upon review of the affidavits and evidence, I find that either by agreement or action, the respondent allowed the provider to submit invoices directly to it. This is pursuant to section 48(2) which provides that the respondent can arrange to be invoiced for incurred expenses directly from the provider. Alone, this does not absolve the respondent from paying any interest of overdue payments. However, as referenced in the email dated December 14, 2017, the service provider agreed to waive entitlement to interest.
40Considering my finding that the dispute over payment of attendant care services was a dispute between the respondent and the service provider, the applicant is not entitled to any interest payments.
CONCLUSION
41The applicant is not entitled to any additional attendant care benefits.
42The applicant is entitled to an award in the amount of $2,166.15.
43No interest is payable.
ORDER
44The respondent shall pay the applicant an award in the amount of $2,166.15.
Released: June 6, 2018
Brian Norris, Adjudicator