A.L. v. Aviva Insurance Canada, 2019 CanLII 77005

Citation: A.L. vs. Aviva Insurance Canada, 2019 ONLAT 18-001867/AABS

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. L.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

For the Appellant: Maria Makarova, Paralegal

For the Respondent: Louise Kanary, Counsel

Heard: In Writing Hearing: December 3, 2018

OVERVIEW

1The applicant (“A.L.”) was involved in an automobile accident on November 21, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Aviva denied, in part, A.L.’s entitlement to an attendant care benefit based on various s. 44 reports concluding that A.L. did not need an aide or attendant to assist with personal care tasks. Further, Aviva denied the cost of transportation expenses she incurred in connection with other, approved treatment plans.

2A.L. disagreed with the denials and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). I now decide those disputes. For the reasons that follow, I conclude that A.L. is entitled to attendant care benefits for the period of February 22, 2016 to August 11, 2017, but at various rates within that period, and is entitled to the claimed transportation expenses.

ISSUES

3The issues to be determined are as follows:

(i) Are the attendant care benefits claimed by A.L. in the amount of $917.13 per month from February 22, 2016 to date and ongoing reasonable and necessary?

(ii) Is A.L. entitled to her claimed and incurred transportation expenses?

(iii) Is A.L. entitled to interest on any applicable outstanding payment of benefits?

(iv) Is A.L. entitled to an award because Aviva unreasonable withheld payment of a benefit?

RESULT

4Based on a review of the evidence before me:

(i) I find A.L. is entitled to attendant care benefits in the following amounts:

a. $917.13 per month for the period February 22, 2016 to April 10, 2016;

b. $320.80 per month for the period from April 11, 2016 to September 8, 2016;

c. $334.05 per month for the period September 9, 2016 to March 7, 2017;

d. $166.30 per month for the period March 8, 2017 to August 10, 2017; and

e. No entitlement to attendant care for the period August 11, 2017 ongoing.

(ii) A.L. is entitled to the transportation expenses.

(iii) A.L. is entitled to interest on any outstanding payment of benefits.

(iv) A.L. is not entitled to an award.

LAW AND ANALYSIS

Attendant Care Benefit

5Section 19 of the Schedule provides that A.L. is entitled to attendant care benefits up to a maximum of $3,000.00 per month for the first 104 weeks after the accident if she can establish that the attendant care services are, as a result of the accident, reasonable and necessary. The limit applies regardless of the amount or level of care determined to be necessary by a health care provider.

6The amount of the benefit is determined by an assessment known as an Assessment of Attendant Care Needs and corresponding Form 1 (which I will collectively call a “Form 1”). Essentially, a Form 1 outlines three different levels of personal care that qualify for attendant care benefits. The levels are differentiated by the level of need required and the skill required to perform the care. Each level has a different hourly rate and the care activities are measured in minutes per day.

7In this case, each party has prepared several Form 1s updated over time as A.L.’s needs evolved, so the dispute involves interpreting the competing Form 1s, over several different periods of time. The Form 1s are:

Form 1 Date: Author: Party: Form 1 Recommended Amount:

February 22, 2016 – this starts the period at issue in this matter Occupational Therapist(“OT”) - Ashok Jain A.L. $917.13

April 11, 2016 OT - Sherri-Lynn Ash Aviva $320.80

September 9, 2016 OT - Ashok Jain A.L. $334.05

March 8, 2017 OT - Ashok Jain A.L. $166.20

May 16, 2017 OT - Estelle Levius A.L. $208.55

July 18, 2017 OT - Harish Sharma Aviva $0.00

Positions of the Parties

8A.L. submits that she is entitled to attendant care benefits in the amount of $917.13 per month from February 22, 2016 (the date of her first Form 1) to November 21, 2017 (which marks the end of the first 104 weeks after the accident).

9A.L. seeks that amount based on Ashok Jain’s Form 1 dated February 22, 2016. As discussed below, however, A.L. also relies on the three additional Form 1s relating to different parts of that period – two more by Mr. Jain, and one by Occupational Therapist Estelle Levius – and those reports recommend amounts less than the $917.13 for some of the periods of time.

10Aviva relies on its report by Occupational Therapists Sherri-Lynn Ash and Harish Sharma, both of which conclude lessor amounts are needed.

11I note that the record leaves some questions about the time period involved in this dispute. The accident occurred on November 21, 2015, yet A.L.’s initial Form 1 is not until February 22, 2016, and then Aviva did not conduct its own assessment of A.L. until it secured an April 11, 2016 assessment by Ms. Ash. Neither party provides an explanation as to why the attendant care benefit was not claimed from the date of loss, nor does Aviva provide an explanation for the delay in conducting its own assessment. In any event, since the disputed attendant care benefit is limited to a specified period of time, I make no determination to entitlement to the benefit before February 22, 2016.

Attendant Care entitlement – February 22, 2016 to April 10, 2016

12The first period I address is from the date of A.L.’s initial February 22, 2016 Form 1 (the First Jain Report) until Aviva’s first Form 1 (the Ash Report on April 11, 2016). I accept the First Jain Report for that period, in the amount of $917.13, for the reasons that follow.

13The First Jain Report outlines the following attendant care services deemed reasonable and necessary for A.L. With respect to level 1 care, Mr. Jain allocated 105 minutes per week for dressing and undressing; 135 minutes per week for grooming and 525 minutes per week for feeding. With respect to level 2 care, Mr. Jain allocated 60 minutes per week for hygiene. With respect to level 3 care, Mr. Jain allocated 105 minutes per week for bathing. Mr. Jain deemed these care needs to be reasonable and necessary due to the pain A.L. is experiencing in the upper part of her sternum (due to a sternum fracture), neck, lower back, pelvis, shoulders, hips and knees. As noted above, the form recommends an amount of $917.13 per month.

14Although both Mr. Jain and Ms. Ash conduct assessments of A.L., Ms. Ash does not assess whether A.L. has difficulties with dressing. In the Jain Report, which Ms. Ash was provided, Mr. Jain notes the significant difficulties A.L. has with her shoulder rotation, specifically when it came to putting her arms behind her back, donning a winter coat and a bra. Mr. Jain notes pain complaints, especially with the left shoulder, and modified strategies to don lower body clothing. Mr. Jain also notes modified strategies employed by A.L. to wear certain types of clothing which require her to use her arms behind her back.

15In the Ash Report, under the Part 1 Dress/Undress section, Ms. Ash reports that A.L. reported “independence with all dressing/undressing at this time”. However, under the ‘Feeding’ section of her assessment, Ms. Ash reports that A.L. “has functional limitations with reaching”. Further, Ms. Ash concludes that A.L. has “reduced functional tolerances and is “substantially unable to perform her essential attendant care tasks with respect to grooming, feeding and hygiene”. I find these statements to be contradictory, as dressing and undressing would require an amount of reaching that A.L. has already expressed and been assessed to have difficulty achieving without pain, limitation or by employing modified strategies.

16I prefer the Jain report, and its extensive testing/observation and assessment of A.L., which I find persuasive in determining the entitlement to the attendant care benefit for the period February 22, 2016 to April 10, 2016. In comparison to the Ash Report, the Jain Report also notes A.L.’s subjective complaints. The Ash report seems to rely on basic function testing, however it is not clear that Ms. Ash did the same level of testing of A.L.’s ability to participate in activities of daily living testing that Mr. Jain conducted. Based on her report, Ms. Ash seems to rely heavily on A.L.’s subjective reports of her abilities to perform personal care and activities of daily living tasks.

17For the reasons above, I find A.L. is entitled to an attendant care benefit in the amount of $917.13 per month for the period February 22, 2016 to April 10, 2016, when the Ash report was issued.

Attendant Care entitlement – April 11, 2016 to September 8, 2016

18For the next period of time, A.L. continues claiming $917.13 per month (based on the First Jain Report), while Aviva claims $320.80 is the correct amount. I conclude that the correct rate is $320.80.

19Aviva derives the $320.80 figure beginning with and based on the April 11, 2016 Ash report, and, in fact, Aviva began paying the attendant care benefits in the amount of $320.80 per month following the Ash Report.

20A.L. in turn, relies on the First Jain Report at the $917.13 rate, but does not provide further justification beyond the First Jain Report in support of her continued claim for $917.13 monthly rate. As such, I prefer the Ash Report as a more accurate account of A.L.’s level of function for this period.

21I find that the $320.80 rate for the period is the correct amount.

Attendant Care entitlement – September 9, 2016 to March 7, 2017

22The $334.05 rate is the amount recommended in the Second Jain Report dated September 9, 2016. A.L. argues that Aviva actually paid at the $334.05 rate through this period, so it cannot now argue a lower rate is appropriate.

23Mr. Jain noted A.L.’s level of function for this period is similar to what was assessed in the Ash Report. Mr. Jain noted the level of care and need, which was still near to the level from the previous period. As such, I accept that the $334.05 rate recommended in the Second Jain Report is appropriate.

24The reason I find that $334.05 is the correct amount is because Aviva had already paid above the $320.80 monthly amount, going against its own assessor’s recommendation and the amount paid is in line with the Second Jain Report. Aviva offers no explanation as to why it paid above the $320.80 recommended in the Ash Report. Therefore, I find that the requested $334.05 per month for the period September 9, 2016 to March 7, 2017 to be reasonable. As such, I find that A.L. is entitled to a monthly attendant care benefit in the amount of $334.05 for the period September 9, 2016 to March 7, 2017, when Mr. Jain issued the next report dated March 8, 2017.

25It’s unclear as to how long Aviva paid the $334.05 rate which is over and above the Ash Report recommended monthly attendant care amount of $320.80, but it appears that amount was paid until Aviva’s March 20, 2017 letter that approved the adjusted monthly attendant care amount of $166.30.

Attendant Care entitlement – March 8, 2017 to July 17, 2017

26The next period begins with the Third Jain Report, dated March 8, 2017, and ends in July 2017, with Mr. Sharma’s Form 1 for Aviva. A.L. claims the initial monthly amount of $917.13¹ is the correct rate, while Aviva claims the rate is $166.30 as indicated in the Third Jain Report on March 8, 2017 (or any amount less than indicated in the Form 1 is the correct rate). Aviva agreed to pay the $166.30 rate, as indicated in its March 20, 2017 letter. I find the correct rate is $166.30 because Mr. Jain recommended this amount in the Third Jain Report based on A.L.’s current level of required care, and Aviva agreed to paying same.

27In this third report, Mr. Jain noted improvement in A.L.’s shoulder and neck movements; however, her back movements were still limited due to stiffness. Mr. Jain noted significant improvements of “within normal range limits” of many of A.L.’s personal care tasks. However, Mr. Jain concluded that A.L. continued to require assistance for tasks such as cleaning the bathtub and feeding. Due to A.L.’s continued, but improved, attendant care needs, Mr. Jain recommended the attendant care rate be reduced to $166.30 per month.

28On May 16, 2017, Occupational Therapist Estelle Levius conducted an assessment on behalf of A.L. Again, a thorough assessment and testing of A.L. was performed, along with consideration of the subjective pain complaints. Ms. Levius concluded that A.L. required attendant care in the amount of $208.55 per month. Aside from reports of occasional shoulder and back pain, the similarity of assessment results between the Third Jain Report and the Levius Report does not justify the increased amount for attendant care. As such, I find that A.L. is not entitled to any attendant care benefit more than the previously determined amount of $166.30 per month.

29The Levius Report noted continued pain complaints and assistance required with cleaning the tub and feeding, similar to the Third Jain Report. I assign very little weight to the Levius Report as it failed to justify a need for an increase rate of attendant care. Therefore, I find the attendant care rate in the amount of $166.30 to be reasonable rather than the rate recommended in the Levius Report. Again, Aviva appears to have paid this rate until its assessor’s reports were obtained from Mr. Sharma. There is no further assessment report on behalf of A.L. to refute the Sharma Reports.

30I find A.L. is entitled to the $166.30 per month attendant care benefits based on the monthly rate indicated on the Third Jain Report, which as mentioned above, Aviva approved in a letter dated March 20, 2017. Again, it is unclear how long Aviva paid the monthly $166.30 amount. It is assumed this was paid until a subsequent denial, indicated a stop payment date of August 10, 2017 of the attendant care benefit.

Attendant Care entitlement – August 11, 2017 - ongoing

31The last period begins with Aviva’s Orthopaedic Assessment.² Based on that assessment, Aviva claims that A.L. no longer has any attendant care needs. A.L. claims she does. I agree with Aviva, based on the reasons that follow.

32A.L. argued that Aviva’s Orthopaedic Assessment report³ establishes the need for continued attendant care beyond August 10, 2017. I disagree. Dr. Taromi’s report details challenges A.L. is experiencing in relation to her abilities to perform her work duties. The personal care tasks she performs at home do not clearly fall in to the same category of physical requirements as her work duties. I am persuaded by the Sharma Reports of the level of ability, twenty months post-accident, that A.L. has achieved in performing her personal care tasks.

33As a result, I find that the Sharma Reports rate of $0.00 per month for the period of August 11, 2017 ongoing is reasonable. Mr. Sharma opined that A.L.’s level of independence with her personal care tasks was high enough to warrant no further attendant care. I agree. A.L.’s improvement with her personal care tasks were noted in each subsequent report after the First Jain Report. I find that attendant care is no longer required for her home-based personal care tasks for this period.

34In conclusion, I find it peculiar that A.L. would claim entitlement to a monthly attendant care rate of $917.13 for the entire period of February 22, 2016 to November 21, 2017, given her own assessor, Mr. Jain, twice recommended significantly reduced rates of $334.05 and $166.30 respectively, within the same period being claimed. For the reasons above, I find that August 10, 2017, the date of stoppage, at the monthly rate of $166.30, of the attendant care benefit, is reasonable.

Transportation Expenses

35Pursuant to s. 268.3 of the Insurance Act⁴, FSCO published a Transportation Expense Guideline (“the Guideline”). The Guideline provides a framework for insurers and insured persons to determine the circumstances under which expenses related to the transportation of an insured person, and his/her aide or attendant, to and from treatment sessions, counselling sessions, training sessions, assessments and examinations, must be paid by an insurer. This Guideline sets out authorized expenses and applicable rates for the purpose of ss. 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule.

36For travel that takes place on or after September 1, 2010, but before October 1, 2016, the rate that is to be used to calculate transportation expenses for the use of the insured person’s automobile is $0.38 per kilometre travelled.

37The insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from treatment sessions, counselling sessions, training sessions, assessments or examinations. The insurer is also liable to pay for all reasonable and necessary transportation expenses of the insured person’s aide or attendant. Transportation expenses are calculated based on the most direct route, excluding the first 50 kilometres of each round-trip. The 50 kilometre “deductible” is only applicable once in any round-trip.

38In addition, the insurer is liable to pay for reasonable and necessary taxi fare(s) incurred by an insured person and his/her aide or attendant, provided that:

(i) the insured person does not own or have access to an automobile; or

(ii) the insured person is unable to operate an automobile; or

(iii) it is reasonable and practical in the circumstances to take a taxi.

39A.L. is claiming transportation costs in relation to three treatment plans⁵. A.L. also claims that, due to driving anxiety, she only drove short distances. Further, she claims she is prohibited from driving when taking pain medications.

40Aviva submits that although A.L. is claiming $300, the first OCF-18 only claims a transportation expense of $60. The second OCF-18 indicates transportation expense of $600, yet A.L. is claiming $750. The third OCF-18 indicated transportation expense of $480; yet A.L. is claiming $120 in transportation costs relating to this OCF-18.

41A.L. submits that although the OCF-18s indicated a Robert Speck Parkway address, which is approximately a 24km round trip from A.L.’s residence, the treatment took place at a facility located over one hour away, in Thornhill. She claims that Aviva paid transportation expenses for previously approved treatment plans, and therefore any remaining transportation expenses should also be approved.

42Aviva submits that if any or all of the transportation expenses are considered reasonable, the amounts payable should be limited to what is indicated on the related OCF-18s. I agree. After reviewing the OCF-18 evidence for the transportation costs, I find that the amounts that are reasonable, are the transportation costs indicated on the respective OCF-18s and/or any incurred transportation costs within the amounts indicated on the OCF-18s.

43A.L. is claiming costs which exceed those listed in the OCF-18 transportation expense amounts, which I do not consider to be reasonable. Therefore, although I find the transportation expenses to be reasonable, I find that they should be limited to the amounts indicated on the OCF-18s. Where A.L. has incurred transportation expenses which are within and/or less than the amount indicated on the OCF-18s, I find only the incurred amount to be reasonable.

AWARD CLAIM

44A.L. made a claim for an award based on Aviva’s handling of the initially disputed income replacement benefit but did not present any arguments beyond asserting the claim. Further, in response, Aviva made no submissions regarding the claim for an award. I take Aviva’s lack of response to the award claim to be due to the resolution of the income replacement benefit. Additionally, A.L. made no further claim for an award in her reply submissions.

45As the income replacement benefit issue was resolved prior to the receipt of Aviva’s written submissions, I make no determination on the handling of that issue, thus preserving any agreement between the parties on the issue. Therefore, I find no basis for an award claim to be made.

ORDER

46For the reasons indicated above, I find that A.L. is entitled to the following attendant care benefit amounts, less any amounts already paid:

(i) $917.13 per month for the period February 22, 2016 to April 10, 2016;

(ii) $320.80 per month for the period from April 11, 2016 to September 8, 2016;

(iii) $334.05 per month for the period September 9, 2016 to March 7, 2017;

(iv) $166.30 per month for the period March 8, 2017 to July 17, 2017; and

(v) No entitlement to attendant care for the period August 11, 2017 ongoing.

(vi) Transportation expenses incurred or indicated, in accordance with the amounts listed on the OCF-18’s.

(vii) Interest on any overdue payment of benefits.

Footnotes

1. 1Which contradicts A.L.’s claim of $334.05 being the correct rate for the previously discussed April 11, 2016 to March 7, 2017 period, and without explanation/evidence as to why there is such a significant discrepancy in the amounts claimed for the two periods.
2. 2Harish Sharma, Occupational Therapist, s. 44 assessment report dated July 18, 2017 and July 31, 2017
3. 3Dr. Bezhad Taromi, Orthopaedic Surgeon, s. 44 assessment report dated August 23, 2017
4. 4Insurance Act, R.S.O. 1990, c. I.8 – June 8, 2019
5. 5OCF-18 dated October 13, 2016, OCF-18 dated January 27, 2017, and OCF-18 dated April 21, 2017.