L.Y.T. v. RBC Insurance Company, 2018 CanLII 81951

Licence Appeal Tribunal

Date: 2018-05-17

Tribunal File Number: 17-007019/AABS

Case Name: 17-007019 v RBC 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:

L.Y.T.

Applicant

and

RBC Insurance Company

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

Counsel for the applicant: Kevin So

Counsel for RBC: Kathleen Mertes

HEARD: Written Hearing: April 16, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on June 6, 2015. She sought payment for an attendant care benefit under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). RBC Insurance Company (“RBC”) denied payment for the attendant care benefit. The applicant appeals for payment to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to an attendant care benefit in the amount of $1,820.00 monthly from June 6, 2015 for five months?

2. Is the applicant entitled to interest on any overdue payment of benefits?

3. Is the applicant entitled to an award due to RBC unreasonably withholding or delaying the payment of an attendant care benefit pursuant to section 10 of R.R.O. 1990, Reg. 664?

RESULT

3The applicant is not entitled to payment for an attendant care benefit between June 6, 2015 and November 27, 2015 because she has not proven that she received those services from her attendant care provider. For the same reason, she is not entitled to an award under section 10. Since no payment is owing, the applicant is not entitled to interest.

FACTS

4The applicant was injured in an accident on June 6, 2015 when the vehicle she was driving was T-boned by another vehicle that had run a red light.

5According to the applicant, that same day her eldest son, J. Z., resigned from his employment to provide her with attendant care service. The applicant submits that J. Z. provided compensable attendant care service between June 6, 2015 and November 27, 2015.

6The applicant was assessed during this time period by Mr. Raymond Wong, an occupational therapist. On August 6, 2015, Mr. Wong submitted an assessment report and an Assessment of Attendant Care Needs Form 1 to RBC.¹ The documents recommended that the applicant receive $3,048.81 in attendant care service. The attendant care service included assisting the applicant with:

• dressing/undressing of the upper and lower body

• bathing and drying off

• washing/drying her hair

• fingernail and toenail care

• meal preparation

• supervision when walking

• cleaning the bathroom after use

• cleaning bedroom

• preparing clothing for daily wear

• controlling her medication supply

• four hours per day of supervision due to an inability to be self-sufficient in an emergency

7RBC denied the applicant payment for an attendant care service following an assessment by Ms. Christina Kovacic. Ms. Kovacic is an occupational therapist hired by RBC to conduct an in-home occupational therapy assessment on the applicant. Ms. Kovacic prepared an assessment report dated February 2, 2016 and an Assessment of Attendant Care Needs Form 1 dated January 25, 2016. The applicant acknowledges that she no longer required payment for an attendant care benefit after November 27, 2015.

DISCUSSION

8The applicant is not entitled to payment for an attendant care benefit between June 6, 2015 and November 27, 2015 because she has not proven that she received those services from J. Z. The law requires the applicant to prove on a balance of probabilities at this hearing, among other things, that J. Z. provided the kinds of service listed by Mr. Wong in the Assessment of Attendant Care Needs Form 1.²

9The applicant can point to four sources of information as proof that J. Z. provided the requisite attendant care service. First, the applicant seemingly points to her submissions, which clearly state that J. Z. provided attendant care service. This does not advance the applicant’s claim because written submissions are not evidence at the Tribunal.

10Second, there is a letter from a leadhead who worked with the applicant prior to his resignation of employment. The letter is from someone named Kevin. It indicates that J. Z. “quit in June 2015 to take care of his mother from a motor accident.” However, Kevin’s letter does not assist in understanding what service J. Z. provided to the applicant when he was taking care of her. It is not enough that J. Z. assisted the applicant. J.Z. must have assisted the applicant by providing the type of service requested in the Assessment of Attendant Care Needs Form 1.

11Third, Mr. Wong’s occupational therapy report dated August 6, 2015 makes a passing reference to the applicant’s husband and son helping with her meal preparation. The reference confirms to some extent that a son, probably J. Z., helped with the applicant’s meal preparation. Following that logic, however, I would expect to see the applicant’s son referenced elsewhere in the report about providing other kinds of attendant care service. There is no such reference. Mr. Wong’s report is a neutral source of information in my view.

12Fourth, J. Z.’s paystubs and bank statements suggest that J. Z. resigned from his employment on the day of the accident and did not return to work. The logical inference is that this is more than coincidence: J. Z. provided his mother with an attendant care service, and this is why he ceased his employment and stopped receiving income at the exact time of his mother’s accident.

13I am prepared to accept that the paystubs and bank statements could be sufficient evidence that J. Z. provided the applicant with the requisite attendant care service. I am unable to accept this conclusion in this case, however, because of credibility issues with J. Z.’s paystubs and bank statements.³

14In the March 2015 bank statement there are two references to an “account switch”, suggesting the possibility of J. Z. having another bank account. All activity in J. Z.’s bank account ceases at or around the end of June 2015. From then on, the account is dormant and falls into overdraft. This follows months of banking activity prior to June 2015, including frequent Interact purchases. While it makes sense that J. Z. would stop receiving deposits after the applicant’s accident, it does not make sense that J. Z. would stop using his bank account entirely: unless, of course, he began using another bank account.

15As a further cloud of suspicion, the last major transaction from J. Z. is a withdrawal in which he obtained money that was recently deposited into the account by the government.

16Looking at the paystubs, it does not appear that the employment payments issued on January 8, 2015 and May 14, 2015 were deposited into J. Z.”s bank account. Again, this suggests that J. Z. might have another bank account.

17In all, the clouds of suspicion raised by RBC cast a dark shadow on the paystubs and bank statements’ credibility. While I am not prepared to find that J. Z. had another bank account, RBC has successfully challenged the credibility of the paystubs and bank statements such that I am unable to rely on it and the other evidence to conclude that J. Z. provided the requisite attendant care service.

18I wish to be clear to the applicant and J. Z. that I am not saying that J. Z. did not assist his mother after her accident. It would very well be that J. Z. provided assistance to the applicant. But the law requires the applicant to prove that it is more probable than not that J. Z. provided the kinds of service listed by Mr. Wong in the Assessment of Attendant Care Needs Form 1. There is almost no evidence on this issue and, therefore, I am unable to conclude in the applicant’s favour.

OTHER ISSUES

19The parties provided submissions on three issues that do not need to be decided given my reasoning above:

1. Whether part of the attendant care benefit is unpayable because the applicant incurred some of the benefit prior to submitting an Assessment of Attendant Care Needs Form 1

2. Whether the attendant care benefit is a reasonable necessary expense

3. Whether the applicant has proven that J. Z. suffered an economic loss

20In similar manner, the applicant is not entitled to an award under section 10 for an unreasonably withheld payment. It was not unreasonable for RBC to withhold payment for a service that I am not persuaded was provided.

21Since the applicant is not entitled to payment for an attendant care benefit, no interest is owing.

CONCLUSION

22The applicant is not entitled to an attendant care benefit between June 6, 2015 and November 27, 2015, an award under section 10, or interest.

Released: 17/05/2018

______________________________

Chris Sewrattan,

Adjudicator

Footnotes

1. 1RBC alleges that it did not receive the assessment report and Assessment of Attendant Care Needs Form 1 until September 24, 2015.
2. 2Schedule, s. 3(1)(e)(i).
3. 3To be clear, I am not considering whether J. Z. sustained an economic loss. That consideration only arises if the applicant proves that J. Z. provided the requisite attendant care service.