S.K. v. Aviva Insurance Company, 2018 CanLII 95549

Licence Appeal Tribunal

Date: 2018-06-29

Tribunal File Number: 17-006866/AABS

Case Name: 17-006866 v Aviva 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:

S.K.

Applicant

And

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: S. F. Mather

APPEARANCES: Julia Abd Elseed, Counsel for the Applicant M. Baura, Counsel for the Respondent

Heard in writing: April 23, 2018

Overview

1S.K. (the “applicant”) was involved in a motor vehicle collision on October 29, 2015 and sought various benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”) from Aviva Insurance Company (the “respondent”).

2The only benefit claim that remains unresolved is a claim for attendant care benefits (ACBs) for the period of 104 weeks following the accident.

3Following a case conference on January 30, 2018 parties were unable to resolve their dispute and by an Order dated February 9, 2018 the dispute was scheduled for a written hearing.

ISSUES

4The issues before me are:

1. Is the applicant entitled to attendant care benefits in the amount of $858.14 per month for the period² November 1, 2015 to date and ongoing?
2. Is the applicant entitled to interest for the overdue payment of benefits?
3. Is the applicant entitled to an award for any unreasonably withheld or delayed payments pursuant to Section 10 of the R.R.O. 1990, Reg. 664?
4. Is the applicant entitled to costs?

Result

5I find that:

1. The applicant is entitled to attendant care benefits in the amount of $10,307.56 for the period November 1, 2015 to December 31, 2016.
2. The applicant is entitled to interest on the overdue payment of benefits.
3. The applicant is not entitled to an award under Regulation 664.
4. The applicant is not entitled to costs.

Motions Between Case Conference and Hearing

6Two motions were heard in writing following the case conference. By an Order³ released on March 26, 2018 the applicant was permitted to add the issue of whether the applicant is entitled to an award because the respondent unreasonably withheld or delayed payment of ACBS.⁴

7By an Order⁵ released on April 13, 2018 the affidavits submitted by the applicant were excluded from evidence.

Entitlement to Attendant Care Benefits

8An insurer is required to pay attendant care benefits to or on behalf of an insured person who sustains an impairment as a result of an accident if the impairment is not a minor injury and the insured meets the requirements set out in Section 19 of the Schedule.⁶

9Section 19(1) provides that attendant care benefits shall pay for all reasonable and necessary expenses that are incurred⁷ by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or a long-term care facility or a chronic pain hospital.

10There is no dispute about the applicant’s entitlement to an ACB. As of the date of the case conference the respondent no longer takes the position that the applicant’s impairment is a minor injury and does not dispute that the attendant care services are reasonable and necessary.

11The respondent refuses to pay any ACB expenses because it is not satisfied that the applicant has shown that any expenses were incurred. In the alternative the respondent argues that the expenses claimed are not within the Guidelines⁸ and that the benefits claimed are not properly supported by the invoices or timesheets submitted by the applicant.

Did the applicant incur expenses for ACBs?

12In order to find that the applicant incurred expenses for ACBs I must be satisfied on the balance of probabilities that⁹ :

i. the applicant received the goods and services to which the expense relates ii. the applicant 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 employment, or occupation or profession in which her 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 applicant.

13The Schedule¹⁰ also gives me discretion to deem that ACBs expenses were incurred if I find that the respondent unreasonably withheld or delayed payment the benefit.

14The applicant argues that she is entitled to ACBs in the amount of $20,593.25 for the 104 week period following the accident¹¹ regardless of whether the definition of incurred has been met. She submits that because the respondent “concedes to entitlement and concedes that the amount of the Form I is reasonable and necessary” more than two years after the accident she does not have to prove that the expenses were incurred. She asks me to deem that the expenses were incurred regardless of whether assistance was provided.

15In the alternative the applicant asks me to order that the respondent pay the invoices of Attendants With Care Inc. (AWCI) for 14 months of ACBs in the amount of $10,750.00¹² based upon the invoices and timesheets dating from November 1, 2015 to December 31, 2016.¹³

Should I exercise my discretion and deem the ACB expenses have been incurred?

16The applicant argues that the respondent acted unreasonably in maintaining its position that her injuries fell within the Minor Injury Guideline and withholding payment of an ACB. She asks me to exercise my discretion under s. 3(8) of the Schedule and order the respondent to pay ACBs based on the Form 1 for 104 weeks following the accident. The applicant relies on the following evidence to establish her claim that the respondent unreasonably withheld or delayed payment of ACBs:

1. She submitted a Form 1¹⁴ dated December 18, 2015 which recommends attendant care assistance for the applicant and assesses the total monthly attendant care benefit at $858.14.
2. She provided the respondent with invoices for attendant care services on August 19, 2016 for the period November 2015 to June 2016.
3. She provided medical reports and medical information to the respondent throughout 2016 and 2017.
4. The respondent did not remove her from the Minor Injury Guideline until the time of the case conference even though there was no new medical evidence provided immediately before the case conference.
5. The respondent accepts that the ACB expenses claimed are reasonable and necessary.

17I am not satisfied on the balance on probabilities that the respondent unreasonably withheld or delayed payment of ACBs for the following reasons:

a. An ACB is not payable if an applicant sustains only minor injuries that fall within the Minor Injury Guideline. ACBs did not become payable until the case conference when the Minor Injury Guideline issue was resolved. The minor injury issue is not before me. The fact that the applicant sent medical records to the respondent in 2016 and 2017 is not evidence that the respondent unreasonably delayed in determining that the Minor Injury Guideline does not apply. The applicant has not provided medical reports or any details of the applicant’s injuries in the accident that would allow me to reach the conclusion that the Minor Injury Guideline decision was unreasonably delayed.

b. The applicant does not refute the respondent’s evidence¹⁵ that she did not attend an insurer’s examination (IE) that was scheduled for March 17, 2016 to determine if the Form I submitted by the applicant was reasonable and necessary. The Schedule¹⁶ permits an insurer to refuse to pay ACBs relating to the period after the person refused to comply with the request for an IE and before the insured person submits to the examination. I have no evidence that the applicant ever attended at an IE for attendant care benefits.

c. The respondent has provided evidence that the applicant was not fully co-operative with the respondent with respect to providing information regarding her claim for ACBs. The transcript from the July 26, 2016 Examination Under Oath (EUO) of the applicant confirms that the applicant refused to answer questions relating to whether attendant care services were being received and the names of the persons providing attendant care. The applicant’s counsel took the position that the EUO questions are restricted to questions concerning the applicant’s entitlement to benefits and that questions relating to whether attendant care services were being received or the name of the persons providing the services were not proper questions.

The Ontario Court of Appeal in the case of Aviva Insurance Company of Canada v McKeown et. Al.¹⁷ looked at the question of whether the Notice of an EU has to provide the reasons for the EU. The Court of Appeal found that the Schedule is intended to provide a non-adversarial cost effective approach to settling accident claims. I agree with the respondent that the questions with respect to whether or not the applicant was receiving attendant care and who was providing the care were reasonable questions. The question of entitlement to benefit to ACBs is not limited to the “reasonable and necessary” but extends to the question of whether benefits are payable.

In my view it is understandable that the respondent proceeded with caution following the refusal of the applicant to answer questions regarding the ACB application at the EUO.

d. The Financial Services Commission of Ontario case law¹⁸ submitted by the applicant establishes that an insurer must take reasonable steps in adjusting a claim similar to those that a reasonable and prudent insurance adjuster would take. A finding of unreasonable withholding or delay in payment of benefits does not require that an adjuster act in bad faith or commit and actionable wrong, all that is required is an unreasonable withholding of payments¹⁹. In this case the applicant has not provided any evidence to show the steps that the respondent took in adjusting the claim to support her contention that the respondent’s steps in her accident benefits claims were not reasonable. The only evidence I have with respect to the adjustment of the claim is the transcript of the EUO.

18I do not find that the respondent unreasonably withheld or delayed payments of ACBs and for that reason there is no basis for me to exercise my discretion.

Did the Applicant incur expenses for ACBS?

19The applicant submits that she incurred attendant care expenses for services provided by A.B. Cacabelos, a personal support worker employed by AWCI over the fourteen month period between November 1, 2015 and December 31, 2016 in the amount of $10,750.00

20She relies on the monthly invoices from AWCI and the monthly timesheets with the initials A.C. as evidence that she received attendant care services.

21There is no evidence that the applicant has paid for any attendant care services. She relies on the invoices and timesheets as her evidence that she promised to pay for the services or is otherwise legally obligated to pay for the services.

22The respondent questions whether the applicant received the attendant care services covered by the invoices and takes issue with authenticity of both the invoices and the timesheets. The respondent also submits that there is no evidence that the applicant promised to pay the invoices or is legally obligated to pay the expenses.

23I am satisfied on the balance of probabilities that the applicant incurred expenses for attendant care services and that she is entitled to her expenses to be paid in accordance with the Guidelines. I have determined the amount of attendant care benefit payable below.

24Firstly, I am satisfied on the balance of probabilities that the applicant received the attendant care services to which the invoices and time sheets relate. The respondent asks me to find that the applicant did not receive the services covered by the invoices because the applicant refused to answer questions on her August examination under oath (EUO) with respect to whether she was receiving services and who was providing the services.

25The applicant’s explanation for her refusal to answer the questions is that EUOs are for the purpose of determining entitlement to a benefit and questions with respect to whether expenses are incurred are not appropriate for an EUO.

26Based on the fact that the applicant provided the invoices for services shortly after the examination and provided further invoices once she was removed from the Minor Injury Guideline I am satisfied on the balance of probabilities that the applicant received attendant care services. The Schedule²⁰ provides the respondent with mechanisms to obtain information with respect to invoices in order to determine if they are payable. In preparation for this hearing, the respondent asked for copies of the timesheets to support the invoices which were provided. I have no evidence that the respondent sought any other information from the applicant or the service provider with respect to the services.

27Secondly, I am satisfied on the balance of probabilities that the applicant has promised to pay and/or is legally obligated to pay for the services that she received. While the invoices do not provide any terms or payment or include a promise to pay they do clearly invoice the applicant for attendant care services and each monthly invoice is supported by a time sheet. Again the Schedule allows an insurer to request information about invoices. The applicant provided the insurer with the information it requested at the case conference. The respondent has had the invoices from AWCI since July 2016 – over 18 months and took no steps to determine if the invoices were payable.

28Thirdly, the applicant has provided a copy of the diploma for the personal services worker who she submits provided the services. This diploma satisfies me on the balance of probabilities that A.C. provided the services in the course of her employment with AWC.

29Being satisfied that ACBs are payable for the period from November 1, 2015 to December 31, 2016 I must determine the amount of benefits that are payable.

Amount of Benefit Payable

30The respondent submits, and I agree, that hourly rates claimed in the invoices relied on by the applicant are beyond the hourly rate provided for in the Guideline. The Guideline rates are used in the Form 1 to determine the applicant’s monthly entitlement to ACBs and I do not have the authority to increase the hourly rates used to calculate the monthly ACB beyond these rates.

31The hourly rates provided for in the Guideline effective for accidents occurring after October 1, 2015 and before October 1, 2016 are set out in the table below. ACW has billed all services at $25.00 per hour.

Attendant Care Hourly Rate Guideline

Attendant Care Costs	Maximum Hourly Rate
Part 1: Hourly Rate A Level 1 Attendant Care is for routine personal care.	$13.19
Part 2: Hourly Rate B Level 2 Attendant Care is for basic supervisory functions.	$11.25
Part 3: Hourly Rate C Level 3 Attendant Care is for complex health/care and hygiene functions.	$19.35

32The respondent argues that I do not have enough evidence to modify the invoices of the applicant to reflect the allowable hourly rates as was done by my colleague L. Marzinotto in the case of A.H. V. Belair Direct. ²¹ In my view I do not have to modify the invoices. While the timesheets and invoices do not allocate the hours worked between the three levels of care provided for in the Guideline and the Form I, I am of the view that it is reasonable to approve payment of the incurred monthly attendant care expenses up to the monthly amount determined on the Form I. I have reviewed the Guideline and I do not see any restriction in the Guideline that prevents me from taking this approach.

33The monthly benefits assessed on the Form 1 are set out below:

Level	Attendant Care	Hours	Rate/hour	Total
Level 1	Personal Care	41.21	$13.19	$543.54
Level 2	Supervisory Functions	22.58	$11.25	$231.39
Level 3	Complex and Hygiene	4.3	$19.35	$83.21
		68.09		$858.14

34I approve payment of incurred attendant care expenses in the amount of $10, 307.56. The amount payable per month is set out in the Appendix. I do not approve payment of the benefit beyond December 16, 2016 because I am not satisfied that the benefit was incurred beyond that date and for the reasons provided above I am not prepared to deem the benefit to have been incurred.

35For the reasons provided above I find that attendant care expenses in the amount of $10,307.56 are payable to the applicant.

Interest

36The applicant is entitled to interest on the benefits I have found payable in accordance with the Schedule. The Schedule²² sets out how interest is to be calculated where there is a dispute as to entitlement to a benefit or the amount of benefit.

37If the parties are unable to agree on the interest payable they may contact the Tribunal to obtain a date to argue the interest calculation before me.

Award under Regulation 664[^23]

38The applicant asks me to make an award under Regulation 664.

39This regulation allows me to award an additional amount of money to the applicant if I find that the respondent unreasonably withheld or delayed payments of benefits. Section 10 allows me to award an extra lump sum payment of up to 50% of the amount to which the applicant is entitled to together with interest on all amounts owing to the insured (including unpaid interest) at the rate of 2 per cent per month compounded monthly, from the time the benefit first became payable.

40Having already found that the respondent did not unreasonably withhold or delay payment of the attendant care benefits I am unable to consider awarding an additional amount of money to the applicant and her claim for and additional amount of money is dismissed.

Costs

41The applicant’s request for costs is denied for the reasons provided below.

42The Licence Appeal Tribunal (LAT) Rules of Practice and Procedure²⁴ (the Rules) allows a party who believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith to make a request to the Tribunal for costs.

43The cost provisions in the Rules refer to the behaviour of a party that takes place in the proceedings before the Tribunal and not to behaviour that occurs before the application to the Tribunal is made. The Rules require²⁵ cost submissions to set out the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious or in bad faith.

44The applicant submits that the respondent’s failure to pay the ACB claim once it received particulars the ACB claim following the case conference is behaviour entitling him to a cost order. I do not agree.

45Delivery of the remaining invoices, all of the timesheets and a copy of the diploma of the person who provided the attendant care services did not resolve the outstanding issues. The respondent is entitled to challenge the credibility and sufficiency of the evidence as well as the fact that the amount claimed by the applicant is not within the Guideline. The applicant has not demonstrated any basis for a cost order.

46For the reasons provided above I Order that:

1. The respondent shall pay attendance care benefits to the applicant in the amount of $10, 307.56 for the time period November 1, 2015 to December 31, 2016
2. The respondent shall pay interest on the attendant care benefits in accordance with the Schedule.
3. The applicant’s claim for an award under Regulation 664 is dismissed.
4. The applicant’s request for costs is denied.

Released: June 29, 2018

Susan Mather, Vice-Chair

Appendix to 17- 006866

Calculation of Attendant Care Benefits Payable

The maximum attendant care benefit payable per month is $858.14.

Month	ACB Benefit Claimed	ACB Benefit Payable
November 2015	$950.00	$858.14
December 2015	$950.00	$858.14
January 2016	$950.00	$858.14
February 2016	$950.00	$858.14
March 2016	$800.00	$800.00
April 201626	$800.00	$725.00
May 2016	$800.00	$800.00
June 2016	$800.00	$800.00
July 2016	$750.00	$750.00
August 2016	$750.00	$750.00
September 2016	$750.00	$750.00
October 2016	$500.00	$500.00
November 2016	$500.00	$500.00
December 2016	$500.00	$500.00
TOTAL	$10,750.00	$10,307.56

Footnotes

1. 1O. Reg. 34/10
2. 2The Case Conference Order dated February 29, 2018 identifies the time period for the ACB claim as December 15, 2015 to date and ongoing. The written submissions of the applicant and the respondent identify the time period as being November 1, 2015 to October 29, 2017.
3. 3Order of Adjudicator I. Maedel made on March 23, 2018 , Tribunal Record
4. 4R.R.O. 1990, Reg. 664
5. 5Order of Vice-Chair T. Hunter made on April 12, 2018, Tribunal Record
6. 6S. 14 O. Reg. 34/10
7. 7S. 19(1)(a) O. Reg. 34/10
8. 8Attendant Care Hourly Rate Guideline – October 2015, Tab 9, Submissions of Aviva Insurance
9. 9S. 3(7) e, O. Reg. 34/10
10. 10S. 3(8), O. Reg. 34/10
11. 11Page 1, paragraph 2 of the Applicant’s submissions
12. 12Tab 3, Applicant’s Exhibit Book
13. 13The applicant’s submissions ask for payment for 13 months however both the applicant and respondent have provided the same invoices for 14 months.
14. 14Tab 2, Applicant’s Exhibit Book
15. 15Tab 12, Respondent’s documents
16. 16S. 42(9) O. Reg. 34/10
17. 172017 O.C.A 563
18. 18Cowans and Motor Insurance Corporation, FSCO A09-003237, October 15, 2010
19. 19Da Ponte and The Motor Vehicle Accident Claims Funds, FSCO A01-000486, October 28, 2002
20. 20S. 46.2 and s. 46.3 O. Reg. 34/10
21. 21Tribunal File 16-001063
22. 22S. 51(4) O.Reg. 34/10
23. 24Version 1 (April 1, 2016), S. 19
24. 25S. 19.1 LAT Rules
25. 26The April 2016 invoice is for $800 (32X$25.00). The timesheets show 29 hours of work. I have adjusted the amount to reflect the hours worked on the time sheet.
26. 23S. 10, O. Reg. 644 made under S. 280 of the Insurance Act, R.S.O. 1990, c. I.8