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:
A.A.
Appellant
and
Primmum Insurance Company
Respondent
AMENDED DECISION
PANEL:
Derek Grant, Adjudicator
APPEARANCES:
For the Applicant:
Eli Jakubovic, Counsel
For the Respondent:
Denise Hughes/Sara Stinson
Paul Girard and Grace Ko, Counsel
Court Reporter:
Carlos Herrera Himeliz
HEARD:
In Person on: October 16 and 17, 2018
OVERVIEW
1The applicant (“A.A.”) was involved in an automobile accident on February 2, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')- Effective September 1, 2010 (the ''Schedule'')- Effective September 1, 2010 (the ''Schedule'')- Effective September 1, 2010 (the ''Schedule''). A.A. was denied certain benefits by the respondent, Primmum Insurance Company (“Primmum”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2This is a hearing regarding whether or not A.A. required attendant care, whether an award claim is warranted and if A.A. should be awarded costs in regards to a Motion filed in the subject proceeding.
3A.A. had been diagnosed with cancer prior to the accident. Despite this serious illness, A.A.’s son (M.A.) testified that prior to the accident A.A. was able to conduct his activities of daily living independently. This claim for attendant care benefits is based on care that M.A. provided to his father after the accident.
4Claims for attendant care are required to be submitted on an “Assessment of Attendant Care Needs” form or ‘Form 1’. In this matter, there was no Form 1 submitted.
5If I find that A.A. is entitled to an attendant care benefit, the period being claimed is from February 2, 2017 to July 27, 2017, plus interest. If I find that A.A. is entitled to an award, he is seeking up to 50% of the outstanding amount of attendant care, plus interest at the prescribed rate.
6I find that A.A. is not entitled to an attendant care benefit. As such, I do not need to address the issue of an award or interest. Further, A.A. is not entitled to costs.
ISSUES IN DISPUTE
7The issues to be decided at this hearing are:
i. Did A.A. incur attendant care expenses as a result of the accident, in the amount of $3000.00 per month for the period of February 2, 2017 to July 27, 2017, and was the amount of monthly attendant care benefit determined in accordance with a Form 11?
ii. Is A.A. entitled to interest on any overdue payment of benefits?
Additional issues:
i. Is A.A. entitled to a special award because Primmum has unreasonably withheld or delayed payments in its’ adjusting of the file? If the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
ii. Is A.A. entitled to costs?
iii. Is Primmum entitled to costs?
RESULT
8In this case, I find that A.A. did not submit a Form 1 to Primmum when making the claim for an attendant care benefit and therefore A.A. is not entitled to any benefits. As such, I do not need to address to address the issues of interest or an award.
9Additionally, A.A. is not entitled to costs, nor is Primmum entitled to costs.
LAW
10The onus is on the insured person, under section 42(1), to provide the insurer with the Form 1 and ensure it contains the information required to be provided. Short of the insured meeting this obligation, section 42(5) allows the insurer to pay the attendant care benefit without having received the Form 1, but what section 42(5) does not do is require the insurer, to pay the attendant care benefit absent a Form 1.
11The Schedule is intended to be consumer protection legislation. This does not mean that an insurer is limited in its ability to determine entitlement to a benefit. Where an insured may have incurred attendant care expenses, but has not submitted a Form 1, the insurer is neither put on notice nor obligated to compensate the insured.
12Section 19(1)(a) of the Schedule provides that an insurer shall pay attendant care benefits for reasonable and necessary expenses incurred by or on behalf of the insured person for services provided by an aide or attendant, or a long-term care facility.
13An applicant claiming an attendant care benefit must establish it is reasonable and necessary, and that the expense was “incurred”.
14Section 42(5) of the Schedule prescribes that an insurer is not required to pay an expense for attendant care needs which is incurred prior to a Form 1 being submitted to the insurer.
15The compliance requirement of the Schedule is clear, section 42(1)(a), “an application for attendant care benefits must be (my emphasis) in the form of the document entitled “Assessment of Attendant Care Needs”. Section 19(2) reinforces the compliance of the insured, by requiring (my emphasis) the “Assessment of Attendant Care Needs” (Form 1) to be submitted under section 42.
16The sections are to be read together. My plain reading interpretation of both sections is that the Form 1 is required. Whether it is submitted in advance of the benefit being incurred, or in retrospective, it is required. Hence, the onus is on A.A. to submit a Form 1 in order to establish the amount and level of care required under the attendant care benefit.
17Pursuant to section 42(1)(a) of the Schedule, it is upon receipt of the “form and the information required” that the insurer has a duty to thoroughly investigate the claim, but is only able to do so once notified. In the matter before me, no such Form 1 exists; therefore, no entitlement to attendant care can be decided.
ANALYSIS
A.A.’s position
18The Schedule requires the person providing the services must establish they have sustained an economic loss as a result of providing the goods and services. In the subject proceeding, M.A. must show that he suffered an economic loss as a result of providing attendant care services to A.A. It should be noted that A.A passed away from pre-existing cancer. It is for this reason the claim for attendant care is limited to July 27, 2018.
19M.A., A.A.’s son, testified that pre-accident, A.A. was able to conduct his activities of daily living (“ADL’s”) independently. Post-accident, M.A. stated that his father needed help with dressing and using the stairs. In addition, A.A. experienced increased difficulty with ADL’s and he required a walker to be mobile. M.A. stated the leg injury suffered in the accident made participating in ADL’s difficult and A.A. required help.
20According to M.A., pre-accident, he worked at [a granite supplier], a family-owned business in a supervisor/managerial role from August 2015 until the time of the accident. M.A.’s salary at the time was approximately $25 per hour and worked five days a week, eight hours a day. M.A. stated he stopped working at [a granite supplier] on February 2, 2017 in order to look after A.A. The affidavit of K.A., another son of A.A., and the owner of [a granite supplier], confirms same. As a result of the work stoppage, M.A. argued that the attendant care benefit is for the economic loss he suffered in the caring of A.A.
21There is no evidence that at any time between February 2, 2017 and July 27, 2017, that a Form 1 was completed and submitted to Primmum. It is not until a letter dated December 7, 2017, on behalf of A.A., is sent to Primmum, in which a request is made for attendant care benefits. Again, no Form 1 was sent with the December 7, 2017 letter.
Primmum’s position
22Primmum’s grounds for denial are solely based on the provisions laid out in sections 42 and 19 of the Schedule. The denial of A.A.’s entitlement to attendant care benefits was based on a lack of a Form 1. Primmum stated attendant care cannot be calculated in the absence of a Form 1.
23Further, as A.A. is now deceased, there is no way to accurately assess what level of care would have been required, or the amount of entitlement A.A. might have been entitled to.
Is A.A. entitled to an attendant care benefit?
24For the purposes of determining whether A.A. required attendant care services, I am prepared to accept that he did. I do not find, however, that A.A. is entitled to an attendant care benefit.
25The only evidence that an attendant care benefit was (informally) requested comes from A.A.'s evidence, in the December 7, 2017 letter to Primmum in which a request was made for payment of the attendant care benefit. This case turns on whether I accept that evidence despite the lack of a Form 1. Due to the lack of a Form 1 and for the reasons that follow, I find that A.A. is not entitled to an attendant care benefit in accordance with sections 42(1)(a) and section 19(2) of the Schedule.
26There is no independent evidence that a Form 1 was completed. In the December 7, 2017 letter, A.A.’s Counsel states, “despite the fact that a Form 1 was never obtained due to A.A.’s untimely passing, we are seeking our client to be reimbursed for the six months he provided attendant care services”. The letter further states the amount of attendant care being sought is $3000.00 monthly. This request comes approximately nine months after the estate of A.A. retains counsel.
27A.A. retained counsel in approximately March 2017. I find that the delay between the time of A.A. obtaining counsel and his passing was more than enough time to obtain and submit a properly completed Form 1. A.A. filed a police report, attended cancer treatment and retained counsel during the five-month period between the date of the accident and his passing.
28A.A.’s counsel would have been aware of the increased need for attendant care between March 2017 and July 28, 2017. In that four month period, A.A.’s counsel should have known that a Form 1 was not only appropriate in this case, but the Schedule required it to obtain attendant care benefits. One reason an insured retains counsel is to be represented by an experienced and knowledgeable representative who can provide informed guidance in pursuing an insured’s rights in a proceeding.
29A failure to provide a completed Form 1 can result in delays from the insurer adjusting their file. In the subject proceeding, A.A. did not suffer a medical emergency, accident-related or otherwise; there is no evidence of medical and/or mental incapacity/inability to undergo an attendant care assessment. Thus, this is a matter where a Form 1 should have been properly submitted.
30It was A.A.’s responsibility to satisfy the prescribed requirements in order to claim entitlement to an attendant care benefit. According to the evidence, the explanation for the lack of the Form 1 was that due to A.A.’s cancer, the focus was on receiving cancer treatment, rather than completing a Form 1. I accept that undergoing cancer treatment very likely occupied a great deal of A.A.’s physical and emotional energy. However, given the time period in question spans several months and the fact that A.A. had retained counsel during that same time period; I do not find that the circumstances of this matter justify the lack of a Form 1.
Occupational Therapy Treatment Reports
31On July 6, 2017, Jane Zambon, Occupational Therapist, completed an occupational therapy treatment plan report on behalf of A.A. In her report, Ms. Zambon essentially conducted an interview of A.A. The report does not indicate any testing to determine the level of care A.A. may have required. Further, the Zambon report does not indicate any monthly amount of the attendant care benefit. In her conclusion, Ms. Zambon recommended an occupational therapy/attendant care assessment. Ms. Zambon agreed that A.A. would have been able to participate in an attendant care assessment. Due to A.A.’s untimely passing, no assessment was conducted.
32In her report dated August 14, 2018, Laura Youm, Occupational Therapist, on behalf of Primmum, provides a follow up to the Zambon report. In the report, Ms. Youm has reviewed the Zambon report and notes that the OCF-32 did not specify if A.A.’s independence in his pre-accident activities were compromised necessitating assistance in those activities prior to the accident. Additionally, the Youm report references A.A.’s statement made in the Zambon report, “He (A.A.) continues to dress himself, albeit with difficulty”.
33Although the Youm report makes notes of pre- and post-accident ADL challenges, the report is inconclusive of the level of care or the total monthly attendant care benefit that A.A. would have required. The Youm report did conclude that A.A. would have required some level of attendant care; however, the level and amount were not able to be determined. Again, due to A.A.’s passing, Ms. Youm did not get to conduct any testing or assessment.
34Even though A.A. was initially interviewed by an Occupational Therapist, the fact is no assessment was done. This is problematic. In order for Primmum to determine entitlement, an occupational therapy and/or an in-home assessment should have been conducted. Without an assessment, it is difficult to determine what level of care A.A. would have needed and the monthly amount payable for that level of care. Not only for these reasons, but also, the Schedule makes the Form 1 a requirement as part of the process of claiming entitlement to an attendant care benefit.
35M.A., A.A.’s son, testified to the various ADL’s that he assisted A.A. with. However, there was no objective assessment done to determine the extent of the care needed. The occupational therapy treatment reports do provide a snapshot of what A.A.’s life was like during the post-accident and time of passing period, which is helpful. It is the consensus between the Zambon and Youm reports that showed A.A. would have required some level of attendant care prior to his passing.
36Unfortunately for A.A., more specific evidence is required. An assessment should have been done, and a Form 1 submitted. Since this is not the case for A.A., he has not satisfied his onus to prove entitlement. As a result, I find that A.A. is not entitled to an attendant care benefit. As a result, I do not need to address the issues of interest and the award claim.
COSTS
37The parties requested that the Tribunal order the opposing party to pay for its costs in this matter. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, an award of costs is an exceptional remedy.
38In order for a party to be successful in receiving a cost award, there must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. This is a high threshold.
39During the proceeding, Primmum filed a Motion to have the application dismissed. Adjudicator Maedel dismissed the Motion, and ruled that A.A. had a right to procedural fairness in having the entitlement to attendant care matter proceed to a hearing. I agree.
40A.A. is seeking costs on the basis that Primmum’s filing of the Motion “interfered with the fair, efficient and effective processes of the Licence Appeal Tribunal”. I do not agree. There is no evidence that Primmum intended to deprive A.A. of procedural fairness.
41Primmum is seeking costs on the basis that A.A. pursued a benefit which it determined the Schedule has established A.A. has no entitlement to. I disagree. A.A. has a right to procedural fairness, and in the subject proceeding, the determination of entitlement to the benefit was tasked to a trier of fact. It stands to reason that A.A. would choose an opportunity to have a neutral decision-maker make a determination regarding that entitlement.
42I do not find the pursuit of procedural fairness to be legitimate or proper grounds to award costs to Primmum in this proceeding.
43There is no evidence before me that either party has met the threshold behavior required to justify costs under Rule 19.1.
44I find that neither party is entitled to costs in this matter.
CONCLUSION
45For the reasons stated above, I find that A.A is not entitled to an attendant care benefit, or interest or an award.
46Further, neither A.A. nor Primmum are entitled to costs, and this matter is dismissed.
Released: March 5, 2019
___________________________
Derek Grant
Adjudicator