Tribunal File Number: 18-007870/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
G.R.
Applicant
and
Travelers Canada
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES
For the Applicant: Arnold Miguel Paralegal
For the Respondent: Tim Crljenica Counsel
Sameera Khan Claims Adjuster
Heard in person: June 17 & 18, 2019
OVERVIEW
1The applicant was involved in an automobile accident on January 22, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The issues in dispute were identified and agreed to as follows:
i. Is the applicant entitled to attendant care benefits in the amount of $1000.00 per month, for the period February 1, 2017, to date and ongoing?
ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
3I find that the applicant is not entitled to attendant care benefits.
4I find that the applicant is not entitled to interest or an award.
BACKGROUND
5The applicant was a pedestrian involved in a pedestrian -motor vehicle accident on January 22, 2017. She apparently struck her head and right shoulder on the road. No emergency crews attended the accident. The applicant’s husband drove her to the North York General Hospital emergency department. The applicant underwent a CT scan of the head at the hospital. Everything was normal. She was released with no prescription for any medication. She complains of continued lower back pain.
6The applicant commenced passive therapy at Toronto Health Clinic which she attended twice weekly for three weeks. She then attended once a week with Alana Health Clinic until December 2017.
7Dr. Sukhi Bhangu Physiatrist in his insurer examination (“IE”) Report dated April 2, 20181 indicated that the applicant sustained a lumbar disc herniation. He indicated that the applicant needed a strengthening program with four one-hour sessions, with a Physiotherapist which would help her recover in 3-6 months.
8Dr. Bhangu on his cross-examination indicated that the applicant did not need attendant care benefits as she reported that she was back to work and was fully self- supporting. He noted that the applicant had returned to work 3 days after the accident. This statement was confirmed in the clinical notes of the adjuster Jupinder Khera who spoke to the applicant on February 14, 2017. The applicant indicated that she returned to work and was able to continue with daily activities.2
9[A.Q.], a friend, gave evidence that she assisted the applicant for 2-3 hours per day with housekeeping chores such as, laundry, cleaning, sometimes grocery shopping, washing dishes, etc. She submitted bills after the fact on February 19, 2019, in the amount of $1000.00 per month from January 2017, to December 2017 and admitted that she was paid cash. No receipts for the cash were filed as evidence for payment. [A.Q.] admitted on cross- examination that she was working full time at a fine food store and would help the applicant after work. She also admitted that she was not in the employment of providing attendant care and that she did not assist with personal care, like bathing, helping to go up and down stairs, etc.
10The adjuster Sameera Khan pointed out in her testimony that the respondent asked the applicant by letters dated March 1, 2017, April 11, 2018, January 23, 2019, February 13, 2019, March 8, 2019, for an Assessment of attendant Care Needs and/or a Form 1 to date3. She noted that the first time the issue of attendant care was raised by the applicant to the respondent, was on August 24, 2018, on a telephone conversation with the adjuster.4 Her evidence was that the respondent never received the required Form at any time
11The OCF-6 expenses claim form signed by the applicant’s counsel on April 3, 2017 did not list any housekeeping or attendant care expenses.5 The OCF-24 being the Minor Injury Treatment Discharge Report signed on August 26, 2017 indicated that the applicant had no difficulties in performing housekeeping activities as a result of the accident6. The statement dated April 27, 2017 by the applicant did not mention that she needed attendant care assistance or housekeeping assistance.7
12The clinical notes and records of the applicant’s family doctor Dr. Sara Cohen-Gelfand indicate on January 25, 2017, that the applicant had no continued pain in the lower back and arm.8
ANALYSIS
Attendant Care Benefit
13Section 42 (1) of the Schedule requires the applicant to submit Form 1 completed by an occupational therapist or registered nurse, for a claim of attendant care benefits. Section 42(5) of the Schedule gives the option to the insurer as to whether any expense may be paid prior to a Form 1 being submitted. Section 19 of the Schedule requires all expenses to be reasonable and necessary. Section 19 of the Schedule also requires that, if the person providing the attended care is not in the employment of providing attendant care, to incur an economic loss, before the expenses can be paid.
14There was evidence (not denied by the applicant) by the adjuster Ms. Khan, that a proper Form 1 was never received. There was no evidence submitted by the applicant, that the applicant needed attendant care benefits, and that those benefits were necessary and reasonable. There is no mention in any of the clinical notes and records that the applicant was being assisted with housekeeping activities. The evidence produced by the applicant indicated that the applicant went back to work almost immediately. [A.Q.], on behalf of the applicant did give evidence that she provided housekeeping duties and not attendant care duties. She gave evidence that she suffered no economic loss as she helped the applicant after work.
15Based on the above analysis, that the applicant did not comply with the requirements of the Schedule to provide a Form 1, provided no evidence that attendant care expenses were reasonable and necessary, and no proof of economic loss by [A.Q.]. I find that the applicant is not entitled to attendant care benefits.
Award and Interest
16As there were no benefits owing, I find that the applicant is not entitled to an award or interest.
Released: September 26, 2019
___________________________
Robert Watt
Adjudicator