[S.R.] vs. Certas Home and Auto Insurance Company
Released Date: 01/14/2020
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.R.]
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Cezary Paluch, Member
APPEARANCES:
For the Applicant:
Jeffrey A. Preszler, Counsel
For the Respondent:
Frank Benedetto, Counsel
Heard in writing:
April 1, 2019
OVERVIEW
1The applicant, SR, was injured in an automotive accident on April 23, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was deemed to be catastrophically impaired and was paid housekeeping expenses by the respondent for services performed by Merry Maids until July 1, 2018.
2As a result of the termination of the benefit, SR submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Services (the "Tribunal") regarding his entitlement to ongoing housekeeping and home maintenance, differential in rent, interest and an award under O. Reg. 664.
3Several case conferences were scheduled in this matter on November 2, 2018, November 29, 2019, and February 12, 2019, but the parties were unable to resolve the issues in dispute. Thus, this written hearing was ordered to deal with those issues.
4All submissions and evidence were filed with the Tribunal. My review of those documents forms the basis of this decision.
ISSUES
5The following are the issues to be decided, as per the Case Conference Order dated November 29, 2018:
i. Is the applicant entitled to a housekeeping and home maintenance benefit in the weekly amount of $100.00 provided from Merry Maids (service provider) for the period of July 1, 2018 to date and ongoing?
ii. Is the applicant entitled to a payment for a differential in rent totaling $9,750 for the period of April 26, 2018 to date and ongoing at a rate of approximately $1,000.00 per month?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
6I find that SR is not entitled to housekeeping for the period in dispute as he has not demonstrated that the expenses have been incurred.
7I find that the applicant is not entitled to the differential in rent as he has not proved that this benefit is reasonable and necessary.
8I also find that an award in this matter is not appropriate as the respondent did not unreasonably withhold or delay payment of benefits. Accordingly, as no benefits are overdue, no interest is also payable.
LAW
9The test under s. 23 of the Schedule requires a consideration of the following:
i. The housekeeping and home maintenance services that the applicant normally performed before the accident;
ii. whether the applicant suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident; and
iii. if a substantial inability is found, whether the expenses incurred as a result of that substantial inability are reasonable and necessary.
ANALYSIS
Housekeeping
i. The Housekeeping and Home Maintenance Services the Applicant Normally Performed Before the Accident
10The Occupational Therapy Report of Karen Forse, dated March 4, 2018, found that prior to the accident the applicant was independent with respect to the housekeeping and home maintenance tasks which included: grocery shopping; laundry; meal preparation; washing dishes; dusting; vacuuming; sweeping/mopping; garbage removal/recycling; bathroom cleaning; and making bed/changing linens.
11The IE Occupational Therapy assessment of Jayesh Patel, dated June 6, stated that before the accident the applicant reported that he was living with his wife and completed the following housekeeping tasks: laundry and meal preparation. He reports he shared the following tasks with his wife: garbage removal, washing the floors, cleaning the bathroom, making the bed, vacuuming, grocery shopping and dishwashing.
12Similarly, the IE Psychology report of Dr. Silverman, dated June 6, 2018, documents various tasks that the applicant performed before the accident which include: vacuuming; mopping and sweeping the floor; dusting and polishing furniture; cleaning the bathroom (including the toilet, sink, mirror and shower); wiping down glass surfaces; changing linens; and cleaning the kitchen (including counters and appliances, sink and cabinet doors).
ii. Did the applicant suffer a substantial inability?
13The applicant submits that he suffered a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident due to the impairments1 suffered from the accident which include: lower back pain, right knee pain, carpal tunnel pain and now difficulty standing, bending, stooping, reaching, kneeling, lifting and carrying.
14The applicant relies on the reports of Karen Forse, OT, and Dr. E. Bodenstein, psychologist, to advance his claim for payment of housekeeping services. He also cites the Catastrophic Executive Summary prepared by Dr. George Rado, dated October 25, 2017, and other medical documents included with his submissions.
15The respondent's denial of the applicant's entitlement to the housekeeping and home maintenance benefit as of June 9, 2018,2 was based in part on the IE assessments of Jayesh Patel, OT, in his report dated June 6, 2018 and Dr. Randy Silverman, psychologist, in his report dated June 6, 2018, in which they indicate that the applicant does not meet the disability test for housekeeping and home maintenance expenses.
16I prefer the applicant's evidence on this issue as I found it more detailed, thorough and convincing.
17I assign Mr. Patel's assessment limited weight for two main reasons:
- One, although Mr. Patel concludes that the applicant demonstrated sufficient functional tolerances to be able to perform his pre-accident housekeeping and home maintenance activities with the provision of the recommended equipment3 and education, he does not explain how these assistive devices would allow the applicant to overcome his significant impairments to return to performance of his daily tasks. As just one example, how will any of these devices assist the applicant with his blurred vision and dizziness which has led to falls?
- Second, Mr. Patel was unable to complete this assessment in its entirety. At page 1 of his report, there is a note that the applicant was having a 'bad day' and was unable to complete any formal testing due to pain in his entire body. This therapist completed approximately 70 % of the assessment. I am uncertain why the assessment was not completed on another day or re-scheduled in its entirety, especially since the applicant was unable to complete any testing. In any event, the assessment was not completed and provides me with limited insight into the applicant's true level of functioning.
18The respondent also relies on the psychological report of Dr. R. Silverman, that also concludes that the applicant is not currently considered to be suffering a substantial inability to perform his pre-accident housekeeping and home maintenance activities. Although the applicant indicated to Dr. Silverman that he has tried to do small loads of laundry, washing dishes and preparing light meals, he has not resumed his regular tasks that he was still able to do before the accident such as vacuuming; mopping and sweeping the floor; dusting and polishing furniture; cleaning the bathroom (including the toilet, sink, mirror, and shower); wiping down glass surfaces; changing linens; and cleaning the kitchen (including counters and appliances, sink, and cabinet doors) due to his chronic pain, functional limitations, depressed mood, low energy, and lack of motivation and initiative.
19Dr. Silverman is a psychologist and his opinion, admittedly, is strictly limited to a psychological perspective. Although Dr. Silverman appears to rely on Mr. Patel's assessment to support his conclusion as far as the applicant's ability to perform his pre-accident housekeeping and maintence activities, as I have stated above, Mr. Patel's did not complete his assessment and his findings ought to be utilized with caution. As such, his report provides me with limited insight into the applicant's physical functioning.
20In contrast, Ms. K. Forse was able to complete her entire three-hour in-home assessment which included a review of the applicant's home environment, pre- and post-accident functioning, activity tolerances, detailed recommendations and recommended equipment to promote independent with activities and reduce pain and improve safety. Ms. Forse, at page 4 of her report, indicated that the applicant has not been able to return to work and continues to be limited by his ongoing symptoms including neck and back pain, poor balance, fatigue/poor tolerance for activity; and mood issues including anxiety/depression, difficulties with sleep and poor motivation/initiation for activity. Although the applicant has resumed very basic light housekeeping tasks, he still struggles with heavier work (e.g., heavier shopping, complex meal preparation, vacuuming, cleaning the tub, etc.). Ms. Forse also noted that the applicant's home appeared very disorganized and cluttered.
21As well, with respect to the applicant's current level of functioning, Dr. Bodenstein, psychologist, noted that the applicant reported "significant difficulties" regarding his ability to engage in household chores/home maintenance activities.
22I am satisfied, on a balance of probabilities that the objective medical evidence before me, in conjunction with the applicant's written submissions, demonstrates that the applicant was suffering from a substantial inability to perform the housekeeping and home maintenance tasks that he normally performed before the accident due to his pain, mood, fatigue, and accident related impairments.
Where the Expenses Incurred?
23Section 3(7)(e) of the Schedule sets out the definition of "incurred" and states that an expense is not incurred unless:
a. The insured person has received the goods or services to which the expense relates;
b. The insured person has paid the expense, has promised to pay the expense, or is otherwise legally obligated to pay the expense, and;
c. The person who provided the goods or services:
(A) Did so in the course of the employment, occupation or profession in which he 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 insured person.
24The applicant submits that the respondent had previously paid the service provider, "Merry Maids" directly to perform housekeeping and home maintenance services and ceased paying "Merry Maids" based on the IE assessment of Mr. Patel in July 2018. The applicant maintains the requested housekeeping benefits are reasonable and necessary. In reply, the applicant further explains that, if he is found to have ongoing entitlement to housekeeping and home maintenance benefits, then Merry Maids will be re-hired and invoiced to the insurer in the weekly amount of $100.00.
25However, the applicant has not offered any evidence, whether any supporting affidavit evidence or invoices from any service provider, suggesting that the requested housekeeping services were actually incurred. Simply put, the applicant offers no evidence that he has paid or received any such services for housekeeping at any time after July 1, 2018. There also appears to be nothing outstanding with any service provider. The only general information is in Ms. Forse's report that the applicant requires assistance with housekeeping/home maintenance tasks in the amount of 5.25 hours per week.
26Therefore, while I have determined the applicant was suffering from a substantial inability to perform the housekeeping and home maintenance tasks that he normally performed before the accident, I find on the evidence that the applicant has failed to prove that the services were incurred.
27Further, on these facts, although this appears to not have been raised by the applicant, I also do not find that the deemed incurred provision under s. 3(8) of the Schedule applies. The applicant has the onus of demonstrating—on a balance of probabilities—that the respondent has unreasonably withheld or delayed payment of the disputed benefit. I also point out that the test is not whether the respondent correctly determined that the applicant was no longer entitled to this benefit, but whether this determination was unreasonable.
28In my view, the denial of the housekeeping and home maintenance benefit was reasonable based on the information the respondent had at that time. I find no evidence that the respondent unreasonably withheld or delayed the payment of the benefit to the applicant that prevented the benefit from being incurred. Here, the respondent assessed the claim for housekeeping by obtaining the opinion of an OT and also a psychologist whose reports were completed on June 6, 2018, agreed to pay for assistive devices on June 8, 2018, ensured that Merry Maids had no outstanding account and discontinued the benefit as of July 1, 2018 by providing proper notice to the applicant.4
29As such, the applicant has failed to establish, on a balance of probabilities, that the deemed incurred provision as laid out in s. 3(8) of the Schedule applies in this case.
Rent Differential
30The applicant submits that on the basis of s. 16(3)(i) of the Schedule he is entitled to a payment for differential in rent totaling $9,7505 for the period of April 26, 2018 to November 29, 2018 and ongoing at a rate of approximately $1,000 per month.
31Section 16 establishes that an insurer is responsible to pay for all reasonable and necessary expenses incurred by or on behalf of an insured party including home modifications and devices as laid out in s. 16(3)(i).
32As I understand the applicant's position, Dr. E. Bodenstein found that the applicant's living environment contributes to the severity of his symptomatology resulting from his psychological impairments, and, as a result, has recommended the applicant obtain a larger living space. In his report, Dr. Bodenstein stated that the applicant "resides in a 900 square foot, two-bedroom apartment together with his brother".
33The Occupational Therapy Report of K. Forse, dated March 4, 2018, described this living environment as: "cluttered and has various bins of his personal items stacked from floor to ceiling. He has little room to maneuver and poses as a fall risk." Ms. Forse further stated that since the accident, SR has had to move in with his brother who lives in a small 776 foot square apartment in Oshawa and there has been very little space for his personal items and the apartment unit is extremely cluttered.
34As a result, K. Forse completed a treatment plan (OCF-18) dated April 26, 2018,6 requesting "rent differential" in terms of home modification for the purpose of reducing or eliminating the effects of the applicant's disability resulting from psychological impairment. The methodology behind the applicant's calculation for the amount requested is that the applicant and his RSW have researched various rental properties in the Oshawa area online and also in person and the "going rate" is $1,800/month for a comfortable sized 2-bedroom unit. The applicant is currently paying $1000/month in rent for his existing 776 sq. ft. unit and, after based on information from his landlord, the market value of his existing unit has increased to $1435/month plus the cost of parking $60/month and $70/month for utilities. It is recommended that SR be provided with a cost differential in the amount of $800/month x 12 month so that he can move into a larger space for the reasons explained above.
35I am unable to find, based on the evidence before me, that the proposed treatment plan is reasonable and necessary based on the following reasons.
36The amount claimed is based on the assertion that the "going rate" for a "comfortable" sized 2-bedroom unit is $1,800 per month. I was not provided with any affidavit or current rental market valuation to support the applicant's position. There is also some conflicting information regarding the actual size of S.R.'s apartment. Specifically, Dr. Bodenstein states that the applicant "resides in a 900 square foot, two-bedroom apartment," whereas K. Forse states that he resides in 776 square foot unit. There is also a laundry area down the hall and I am not certain if this was included in the calculation. The difference of 124 sq. feet is significant. A rental agreement was not provided or any details of the actual monthly rent that the applicant himself is paying (versus what his brother pays or why the rent is not being shared equally) (aside from Ms. Forse stating S.R. pays $1,000.00 per month) or what the cost of the entire apartment is for that matter.
37Most importantly, there a lack of evidence that the proposed "rent differential" is reasonable and necessary. I note here that the applicant is sharing the apartment with his brother and it was not clear to me what his brother's responsibility is as far as contributing to the cleaning of the apartment. I also note that when Ms. Forse prepared her report dated March 4, 2018, she makes eights recommendations but does not recommend that the applicant move residences. It appears that the first time this recommendation is made by anyone is in the treatment plan dated April 26, 2018 which Ms. Forse completed.
38There is also no medical evidence that the applicant needs a two-bedroom unit or why the current apartment not can be cleaned to remove some of the clutter which may open up some needed space. Also, in assessing the reasonableness of the proposed plan, it is very difficult for me to determine based on the evidence before me what is being compared because the size and cost of a one-bedroom unit that the applicant lived in at the time of the accident is unknown or what he was paying for that one-bedroom apartment.
39For all of these reasons, the applicant is not entitled to a payment for a differential in rent totaling $9,750 for the period of April 26, 2018 to date and ongoing at a rate of approximately $1,000.00 per month.
Award
40Awards for late payment are governed by Ontario Regulation 664 (s. 10), which gives the Tribunal the discretion, if it finds that an insurer has unreasonably withheld or delayed payments, to award a lump sum of up to 50 per cent of the amount to which the insured is entitled plus interest.
41The applicant claims an award on the basis that the respondent unreasonably withheld the benefits to which entitlement is claimed without having sufficient and/or any evidence for doing so. Since I found nothing payable, the respondent cannot have unreasonably withheld or delayed payments. As such, no such award will be granted.
CONCLUSION AND ORDER
42The applicant has not demonstrated his entitlement to the housekeeping expenses and rent differential in dispute. Since there is no amount owing, there can be no interest.
43The application is dismissed.
Released: January 14, 2020
___________________________
Cezary Paluch
Adjudicator
Footnotes
- Section 3(1) of the Schedule defines "impairment" as "a loss or abnormality of a psychological, physiological or anatomical structure or function".
- Effective stoppage date was on July 1, 2018.
- Mr. Patel refers to page 1 of the report where duster, toilet bowl tile scrubber, grocery card and perching stool are listed as the assistive devices. These devices were approved by the respondent on June 9, 2018.
- See Explanation of Benefits dated June 9, 2019.
- On an annualized basis, the applicant ought $9,600.00 towards this rehabilitation benefit, and $150 for the occupational therapist's cost of preparing same.
- Applicant's Submissions, tab 12.```