S.S. v. Wawanesa Mutual Insurance Company, 2019 CanLII 101448

S.S. vs. Wawanesa Mutual Insurance Company

Citation: S.S. vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-008695/AABS

Tribunal File Number: 18-008695/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

S.S.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

Representative for the Applicant: Darcie Sherman

Representative for the Respondent: James Schmidt

Held by Written Hearing: May 27, 2019

OVERVIEW

1On August 11, 2016, the applicant was hit by a minivan while crossing the street with one of her two daughters. To assist in her recovery, the applicant sought benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule¹ (the “Schedule”). When the respondent refused to pay for some of these benefits, the applicant applied to this Tribunal.

2As I will explain below, I find that the applicant is entitled to a payment for an anti-fatigue mat. She is not entitled to any of the other disputed benefits.

ISSUES

3The benefits at issue are as follows:

(i) A non-earner benefit in the amount of $185.00 per week for the period of February 2, 2017 to date and ongoing;

(ii) $879.47 per month for attendant care benefits for the period of March 3, 2017 to date and ongoing;

(iii) $100.00 per week for a housekeeping and home maintenance benefit (from August 25, 2016 to September 14, 2016); and,

(iv) A medical benefit in the amount of $1,509.29 for assistive devices (i.e., an anti-fatigue mat and a mattress topper).

4The applicant is also requesting interest.

ANALYSIS

Non-Earner Benefit

5Section 12(1) of the Schedule states that an insured person is entitled to a non-earner benefit in the amount of $185.00 per week if she or he sustains an accident-related impairment that causes “a complete inability to carry on a normal life” within 104 weeks of the accident. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6The Court of Appeal for Ontario’s seminal case of Heath v. Economical Mutual Insurance Company provides guidance for applying this standard. Of importance to the present case, I will highlight the following considerations:

(i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

(ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

(iii) All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.²

7This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule, and, as with other benefit determinations, the onus is on the applicant to establish entitlement on a balance of probabilities.

8The applicant argued that her accident-related impairments have left her unable to participate in her pre-accident lifestyle. These impairments include: post-concussive syndrome, insomnia, diffuse weakness throughout her body, chronic pain, and intense agoraphobia. She also highlighted her ongoing reliance on “strong medications to manage her pain and depression”, as well as the reports from Drs. Vincenzo Santo Basile and Hal Brian Scher (dated September 27, 2018 October 4, 2018, respectively).

9The respondent argued that the applicant “has significant credibility issues” (e.g., differing answers about her pre-existing medical condition, surveillance evidence, no evidence of objective impairments, etc.). Further, the respondent has asked me to draw negative inferences from the applicant’s failure to comply with the Tribunal’s production order (dated January 24, 2019), as well as her failure to provide an affidavit detailing her pre- and post-accident activities.

10In reply to the surveillance evidence, the applicant submitted that she never claimed to be “bedridden”. Rather, she has intense fears about going outside—fears she has had to work through to ensure her two young children are cared for.

11I do not find that the applicant is entitled to a non-earner benefit.

12First, to be successful in a request for a non-earner benefit, an insured person has to provide a comprehensive account of her or his pre- and post-accident activities of daily living. I have not been provided with such an account in this case. As noted by the respondent, I was not provided with an affidavit from the applicant detailing these activities, nor did the applicant provide oral testimony to this Tribunal.

13The only detailed description of her activity levels is found in the Assessment of Attendant Care Needs (“Form 1”) prepared by Naomi Gallor (dated February 16, 2017). In this report, Ms. Gallor detailed the frequency and length of time the applicant would spend performing housekeeping and caregiving activities. For instance, Ms. Gallor wrote that—before the accident—the applicant spent approximately three hours per week doing the laundry, 14 hours per week preparing meals and snacks for her children, etc.

14However, there is little to no information provided about activities outside of the home, e.g., recreational, social, or religious/spiritual. Ms. Gallor’s focus on the applicant’s domestic activities makes sense, as the purpose of this report was to determine whether the applicant required attendant care services and/or assistive devices in the home.

15Therefore, while the report provides detailed information about the applicant’s capacity to participate in a particular category of daily life, the test for determining whether one has suffered “a complete inability to carry on a normal life” requires a much more complete narrative. There are some additional details in the other assessments provided by the applicant (e.g., Dr. Scher had several detailed comments about how she had a “normal social life pre-accident”), but, without a fulsome accounting of the frequency, length, and importance of these activities, I find that the applicant has not met her evidentiary burden. I cannot make an entitlement finding in her favor.

16I also base my decision on the fact that much of the applicant’s other medical evidence (e.g., the assessments from Drs. Basile, Scher, and Yen-Fu Chen) all took place after the 104 week mark. This timing is important, as entitlement to a non-earner benefit requires an applicant to demonstrate that the impairment which caused “a complete inability to carry on a normal life” arose within 104 weeks of the accident. In contrast, the respondent provided me with the four assessments it conducted before the 104 week mark—all of which found that the applicant did not suffer from “a complete inability to carry on a normal life”.

17It is, therefore, difficult to find that assessments taking place after the 104 week mark would be able to better capture the applicant’s medical condition at an earlier date. As such, I place less weight on the findings of the applicant’s assessors.

18Taken together, I do not find that the applicant has met the high threshold necessary for entitlement to a non-earner benefit.

Attendant Care Benefit

19Entitlement to an attendant care benefit is determined under s. 19 of the Schedule. Briefly, insurers are responsible for paying all reasonable and necessary expenses for the attendant care services that an insured person incurs as a result of an accident. If an expense has not been paid for by an insured person—or if there is no promise to pay for services rendered—the Tribunal may still deem an expense to have been incurred if “an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit”: see s. 3(8).

20Further, unless an insured person is found to have been catastrophically impaired, an insurer is only required to pay this benefit for 104 weeks post-accident. As such, without a designation that she has been catastrophically impaired, there can be no entitlement beyond August 9, 2018.

21According to the applicant, the Form 1 prepared by Ms. Gallor is a convincing account of why she requires attendant care services to address her accident-related needs. Further, she submitted that—following the accident—she has consistently required the assistance of a friend.

22The respondent took issue with the lack of evidence the applicant has provided to demonstrate whether she has incurred attendant care services. Without evidence that the services have been incurred (or that the service provider has experienced an economic loss), the benefit is not payable. Further, the respondent cited the assessment from its occupational therapist, Jessica Oh, as evidence that the applicant has largely been able to carry on with her pre-accident activities.

23Without presenting any evidence that these services were incurred (or evidence that her friend experienced an economic loss), I cannot find that the applicant has met her evidentiary burden to demonstrate an entitlement to an attendant care benefit. The applicant also failed to provide any argumentation as to whether I should use the discretion afforded me under s. 3(8), and, regardless, I see no reason why I should use it in the present case.

24As an aside, I also found the report of Ms. Oh to be a more compelling account of the applicant’s functional abilities, and, by extension, her attendant care needs. That is, the respondent’s assessor included detailed, narrative descriptions that connected the applicant’s observed capabilities with the functional requirements of activities like cooking and cleaning. This level of detail was not present in the applicant’s report, as Ms. Gallor instead used blanket statements like: “The client demonstrated the following tasks with difficulties and reported requiring assistance: shaving, hair care, and toenail care.”

Medical and Rehabilitation Benefits

25Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident. Section 15 also notes that benefits sought for rehabilitative purposes should assist an applicant to reintegrate into one’s family, society, and/or labour market.

26The OCF-6 for the disputed, assistive devices is dated June 10, 2018. The receipt for the anti-fatigue mat suggests that it was ordered in November 2017, while the receipt for the mattress topper states it was ordered on January 2, 2018.

27These two items were recommended in the assessment report produced by Ms. Gallor. Specifically, Ms. Gallor found the mattress topper would “relieve the client’s pain while lying down, improving sleep patterns”, while the anti-fatigue mat would “absorb/cushion weight… especially in prolonged standing positions”.

28In support of her argument that these assistive devices are reasonable and necessary, the applicant cited the physiatry assessment conducted by Dr. Chen (dated November 5, 2018). Specifically, the applicant argued that this assessor agreed that the devices are both reasonable and necessary.

29In response to the requested mattress topper, the respondent cited s. 38(2) of the Schedule. This section states that an insurer is not responsible to pay for services that are incurred before a plan has been submitted. According to the respondent, the mattress was purchased before the treatment plan was submitted, so the applicant is now statute-barred from payment.

30Then, in regard to the anti-fatigue mat, the respondent claimed that it has never received any bills or receipts demonstrating that it had actually been purchased. As such, it has no obligation to pay for this item.

31In her Reply Submissions, the applicant provided the receipts for these items.

32In regard to the anti-fatigue mat, I first find that the statutory bar in s. 38(2) does not apply, because the mat is worth less than $250.00. I then find that this item is reasonable and necessary. Specifically, in her report, Ms. Gallor observed that the applicant needed to shift her weight while standing. As such, an anti-fatigue mat would assist with prolonged standing. This recommendation was later supported by both Drs. Basile and Chen.

33It should be noted that the respondent’s occupational therapist did not find the applicant exhibited any difficulty with standing. However, Ms. Oh’s observation of the applicant’s ability to stand was limited to 20 minutes (even though the applicant reported to Ms. Gallor that this issue started at the 30 minute mark). Regardless, considering the physical issues that have been listed in the medical evidence before me, this mat appears to be a necessary and reasonable expense to assist with her accident-related pain.

34I then find that the applicant is not entitled to the payment for the mattress topper. The mattress topper is a medical device that is worth more than $250.00, and so the failure to submit a treatment plan before purchasing the item means the statutory bar in s. 38(2) applies. I should also note that I have no evidence or argument before me to suggest that any of the other exemptions in this section of the Schedule should apply.

Housekeeping and Home Maintenance

35Section 23 of the Schedule states that an insurer shall pay:

… up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

36While the applicant argued that the accident has impeded her ability to perform household chores, the respondent contended that a housekeeping and home maintenance benefit is only open to insured persons who have been deemed catastrophically impaired (or those who have purchased optional benefits). In response, the applicant submitted that she will likely be deemed catastrophically impaired.

37Since the applicant has not been deemed catastrophically impaired, nor is there any evidence that she purchased optional benefits, the applicant is not entitled to this category of benefits at this time.

CONCLUSION

38I find that the applicant is entitled to a payment for the anti-fatigue mat. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 22009 ONCA 391, at para. 15.