Tribunal File Number: 19-005638/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:
T.N.
Applicant
and
TD Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Chloe Lester, Vice-Chair
APPEARANCES:
For the Applicant:
Rachel Levitsky, Counsel
For the Respondent:
Melinda Baxter, Counsel
Interpreter:
Hieu Tang – Vietnamese
Hearing Dates:
January 30, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, T.N., was catastrophically injured in a car accident on October 11, 2013.
2The applicant applied for attendant care benefits (ACB) under the Schedule1 in the amount of $3,790.38 per month in accordance with the Assessment for Attendant Care Needs (Form 1).
3The respondent requested an insurer’s examination in order to determine whether the claim was reasonable and necessary. Based on its examination, the respondent partially approved the Form 1 in the amount of $2,331.07 per month.
4T.N. disagreed and filed an application for dispute resolution with the Tribunal.2
ISSUES IN DISPUTE:
5The issues in dispute for this hearing are:
(a) Is the applicant entitled to an ACB in the amount of $3,790.38 per month, less the amount of $2,331.07 approved by the respondent, from April 5, 2019 onward?
(b) Is the applicant entitled to interest in accordance with the Schedule?
RESULT:
6I find the applicant is entitled to an ACB in the amount of $2,997.30 per month from April 5, 2019 onward, subject to the benefit being incurred.
Preliminary Issue:
7The respondent raised a preliminary issue that the Tribunal does not have jurisdiction to hear this case as there are no issues in dispute. It submits that the respondent has approved ACBs in the amount $2,331.07 and since T.N. is not incurring more than that amount, there are no issues in dispute. In its opinion, since the applicant is not incurring ACBs above the approved amount, then there are no disputes regarding entitlement or quantum.
8The respondent is relying on two decisions to support its position. The respondent submits in, J.R. and Primmum Insurance Company3, the issue in dispute was regarding entitlement to income replacement benefits. Before the hearing, the insurance company decided to fund the entire claim, in effect resolving the issues in dispute. The applicant requested to proceed with the hearing so that he could seek an order that he was entitled to the benefit. The adjudicator decided that the Tribunal only has jurisdiction to decide matters if there are issues in dispute. Given that the benefits had been paid in full and the respondent had conceded its position, the Tribunal no longer had jurisdiction to decide the matter. The respondent also submits that in the amended reconsideration decision of E.V. v. TD Insurance Meloche Monnex4, the respondent conceded on all the issues in dispute and on that basis the Tribunal no longer had jurisdiction to hear the application. The decision found that it no longer had jurisdiction to conduct hearings where there are no live issues in dispute regarding entitlement or quantum.
9T.N. submits this is not a hearing concerning declatory relief, like in the two cases presented by the respondent. He submits that there is a clear denial of ACBs and that he only has two years from the date of denial to dispute the benefit. T.N. submits that by partially approving the amount of ACBs requested in his Form 1, the respondent is essentially saying that it is only prepared to pay this amount. Any benefits incurred above that amount, it does not agree to pay for. It is on that very basis that a dispute is established. T.N. submits that the respondent is suggesting that he must incur ACBs above what he can afford, with no guarantee that it will be paid, in order for the issue to be in dispute. T.N. submits that this argument goes against consumer protectionism legislation and the Tribunal has jurisdiction to hear a dispute regarding the quantum of the Form 1 regardless of whether it was incurred. He submits his arguments are supported by J.M. and Wawanesa Mutual Insurance Company and B.D. and Wawanesa Mutual Insurance Company5 where entitlement to ACBs was disputed without incurring the full amount.
10The respondent replied that T.N. is mischaracterizing its arguments. The respondent submits that it is important to refer back to the wording of the Schedule. It argues that s. 19, referring to ACBs, details how an injured party is paid for the benefit. It highlights that an injured party fills out a Form 1 and submits it to the insurance company. The insurance company may choose to accept it, or have it assessed. If the assessment results in a Form 1 amount less than what the injured party proposes, then the insurance company may choose to fund the benefit based on its Form 1. The process continues and payments are reimbursed based on the provisions in the Schedule. The respondent submits and reiterates that a dispute arises only when the insurance company has not agreed to fund the amounts being incurred.
11Section 280 of the [Insurance Act]6 gives the Tribunal authority to hear disputes regarding entitlement to statutory accident benefits or the amount of statutory accident benefits. Based on the plain wording of the Schedule, a person may dispute entitlement or the quantum of a benefit.
12Section 19(1) and (2) states the necessary requirements for an ACB to be paid. It outlines that the expenses must be reasonable and necessary, be incurred, and that the amount of monthly ACBs is determined in accordance with the Form 1.
13Section 42 of the Schedule outlines the process an insured and insurer must follow for ACB claims. Subsection 42(3) states that the insurer has 10 business days, after receiving a Form 1, to specify to the insured person the expenses it agrees to pay, the expenses it refuses to pay, and the medical and other reasons for its decision.
14I find the Schedule is clear that the quantum of the benefit is not the same as requesting payment for a benefit. The Form 1 determines the amount that the insured person may or may not be entitled to, and s. 19(1) and (2) outlines the process in which to get paid for the benefit.
15What is important to note is subsection 19(5) where the Schedule states that if the amount incurred by the insured person is less than the amount on the Form 1, the insurance company is only liable to pay for the incurred expenses. I find this subsection makes it even more clear that entitlement to a benefit is different than payment for a benefit.
16The question remains is there a dispute between the parties and does the Tribunal have jurisdiction to hear that dispute.
17I find there is a dispute between the parties. T.N. requested entitlement to a Form 1 in the amount of $3,790.38 and the respondent found that only $2,331.07 was reasonable and necessary. The respondent does not agree to pay for any amounts incurred over its Form 1. Whether the benefit is incurred or not, is not a requirement for disputing the amount of the benefit to which an insured may be entitled to. I differentiate the decisions the respondent is relying on from this case, because in those decisions the insurer agreed to fund the issues in dispute in full. In this case, the respondent is only agreeing to pay the benefits up to the amount listed on its Form 1. On that basis, there is a dispute and the Tribunal has jurisdiction to hear the claim. The preliminary issue is dismissed.
Injuries sustained by the Applicant:
18The following is a summary of some of T.N.’s accident related injuries:
(a) Psychiatric impairments; major depressive disorder, PTSD
(b) Sleep apnea and disrupted sleep pattern
(c) Mild Concussion and Mild Traumatic Brain injury
(d) Driving anxiety
(e) Persistent neck pain, low back pain, headaches
(f) Disrupted functional mobility – issues with balance and dizziness
(g) Persistent fatigue with cognitive and physical activities
(h) Significant noise and light sensitivity
(i) Disrupted functional cognitive status
(j) Significant disrupted mood and increased irritability.7
Is T.N. entitled to an attendant care benefit?
19The question is what quantum of ACBs is T.N. entitled to. To establish that, the parties relied on their respective Form 1s. It is a question of whether the quantum of the benefit is considered reasonable and necessary.
20In accordance with s. 19(2), the amount of monthly attendant care is determined in accordance with an Assessment of Attendant Care Needs (Form 1). The Form 1 is divided into three categories:
(a) Routine personal care,
(b) Basic Supervisory functions, and
(c) Complex health/care and hygiene functions.
21In this case, the parties largely agree on the applicant’s injuries, and that he requires attendant care services, the issue is to what degree is the attendant care required and its placement on the form. See Appendix A for a comparison of the two Form 1s and where the parties differ.
22Below is a description of the main areas of discrepancies and the reasons for it:
(i) Supervisory care and additional tasks: T.N.’s Form 1 is based on the theory of needing intermittent cueing and companionship throughout the day in order to keep his mood stable. Two hours in the morning, four hours during the day, and two hours at night, in addition to the tasks he is incapable of doing himself for a total of 10.70 PSW hours per day.
(ii) The respondent’s Form 1 is based on the theory of needing intermittent supervisory care for every hour for the same reasons as above. 15 minutes per hour, in addition to the tasks he is incapable of doing himself for a total of 6.80 PSW hours per day. The reasoning for this is that after T.N. completes an activity or task (average maximum tolerance of 20 minutes per activity), he requires a rest or break, during which he would not require supervision.
(iii) Placement of minutes per task: The occupational therapists (OT) largely agree on the tasks that T.N. requires assistance with. T.N.’s OT places the tasks he is incapable of completing on his own in the individual categories and ones he only requires cueing in the supervisory care area. The respondent’s OT, regardless of whether the task requires cueing or whether he is incapable of doing the task, has accounted for those minutes in the individual categories.
(iv) Exercise: The other big discrepancy between the two Form 1s is whether there is a daily need for exercise and whether the other service providers are providing that service. In other words, whether there is a duplication of services.
(v) Tens machine: T.N.’s Form 1 accounts for him using it twice a day, his worse days. The respondent’s Form 1 bases her minute allocation on what was reported to her, which was that T.N. uses it once a day. The respondent’s OT also adds an additional 35 minutes for administration of treatment as required.
23The medical evidence shows the following:
(i) T.N. does not need attendant care while he sleeps, but he does need it to get him up in the morning, make sure he showers, brushes his teeth and eats breakfast. He needs someone to make sure he takes his medication, eats lunch and makes him be more active, and someone to help him with his night time routine.8
(ii) T.N. continues to be easily fatigued after 15-20 minutes of focusing on a task.9 He needs to be reminded to take breaks and cued to get up as he will not listen to his alarm.10
(iii) Having adequate level of attendant care is important for his marriage. Due to his psychological issues, T.N. does not trust new individuals in his home. It has taken time to find a consistent PSW and then, due to personal reasons, they have resigned. Therefore, a significant amount of the attendant care resided with the wife. This has strained their marriage, caused T.N. to get angry with her and puts an enormous amount of pressure on her. Therefore, in order to improve their relationship, it is important that the provision of attendant care is left to another provider.11
24I find that based upon the medical evidence T.N. is entitled to $2,997.30 per month of ACBs. See Appendix B. I find that T.N. has met his onus and it is reasonable and necessary for him to have upwards of 8 hours of attendant care per day. What I find is not reasonable and necessary is that the additional tasks required for him was not accounted within the 8 hours of PSW attendant care services.
25Both Form 1s are based on a 12-hour day, so if I completely agreed with the applicant’s Form 1, that would mean that a PSW would be in the house for 10.7 hours per day. It would be unreasonable to conclude that he needs that much supervision with the amount of rest/breaks T.N. requires in between tasks and the fact that he does not need supervision during that time. This allows T.N. to rest in between activities before another PSW arrives.
26The respondent’s Form 1 doesn’t account for enough PSW hours to complete his daily routine and allow for rest breaks. One of the main factors that needs to be considered is that T.N. does not listen to his alarm clock. So even though he does not require supervision while sleeping, if the break is short, someone would need to be there to ensure he got up and remained motivated to complete his day.
27Here is how I arrived at $2,997.30 worth of attendant care per month.
(i) I find that individual tasks regardless of whether they are being cued or conducted for the person should be placed in the individual categories. The Form 1 is clear that basic supervisory care is, in this case, for ensuring T.N. responds in an emergency and for custodial care due to changes in behaviour. This ensures T.N.’s mood stays stable and positive. Based on the description of the categories I do not see basic supervisory care as a cueing function. Therefore, any tasks that require cueing should be placed in the individual categories.
(ii) I compared both Form 1s and took the maximum time allotted for each individual category and awarded him those minutes. This ensures each task is completed, dependant on T.N.’s mood, regardless of whether it is in the form of cueing or completing the task for him.
(iii) I awarded him full minutes for exercise in accordance with the applicant’s Form 1. The respondent’s Form 1 did not allocate minutes for exercise on the assumption there was no formal recommended program and that other therapists are conducting exercises. The respondent’s OT testified that if certain therapies are not being conducted then additional attendant care hours should be allotted. The reports on the applicant’s brief at Tab 10 and 12, proves that although there is no formal exercise program, the vision therapy exercises and his need to be more active rests with the attendant care provider. Based on the OT report dated November 5, 2019, T.N. is receiving physiotherapy, massage, chiropractic, occupational therapy, acupuncture, counselling, yoga and rehabilitation support worker (RSW) services. The physiotherapy is occurring twice a week, yoga and RSW services once a week and the remainder bi-weekly. I do not find that any of these services are a duplicate of the required hours for exercise in order to remain active and complete his vision therapy exercises.
(iv) I awarded the applicant the minutes from the respondent’s Form 1 regarding the TENS machine. The applicant allocated 140 minutes for the TENS machine and the respondent allocated 105 minutes -the difference between the two Form 1s being about 35 minutes. By awarding T.N. 105 minutes for the TENS machine accounts for some days being his worst, needing it two times a day, and some days his best, needing it once a day.
(v) Lastly, I added the minutes from the individual categories and then subtracted it from an 8-hour day (the maximum amount of PSW hours required). The remainder of the minutes were allocated towards basic supervisory care.
CONCLUSION:
28Overall, T.N. proved, on the balance of probabilities, that he requires 8-hours of ACBs daily. This includes all activities required regardless of whether they are cued or completed for him.
ORDER:
29I order that the applicant is entitled to:
(a) An attendant care benefit in the amount of $2,997.30 per month from April 5, 2019 ongoing, subject to being incurred.
(b) Interest in accordance with the Schedule, if incurred.
Released: March 11, 2020
Chloe Lester
Adjudicator
APPENDIX A – Comparison of the Two Form 1s
| Services | Applicant’s Form 1 | Total Minutes/wk | Respondent’s Form 1 | Total Minutes/wk |
|---|---|---|---|---|
| Part 1 Routine Personal Care | ||||
| Grooming- Hair- Performs styling, set and comb-out | 0 | 20 min X .5/wk | 10 | |
| Fingernails | 0 | 10 min. X 1/wk | 10 | |
| Toenails | 10 min. X 1/wk | 10 | 10 min. X 1/wk | 10 |
| Feeding- provides assistance whole or part in preparing serving and feeding meals | 60 min X 7/wk | 420 | 75 min. X 7/wk | 525 |
| Total Part 1 | 430 min/wk | 555 min/wk | ||
| Part 2 Basic Supervisory Function | ||||
| Cleans Bathroom after use | 5 min X 7/wk | 35 | 10 min X 7/wk | 70 |
| Changes bedding, makes bed | 5 min X 7/wk | 35 | ||
| Ensures comfort, safety and security in bedroom | 30 min X 21/wk | 630 | ||
| Assists in preparing daily apparel | 5 min X 7/wk | 35 | ||
| Hangs clothes/sort to be laundered/cleaned | 5 min X 7/wk | 35 | ||
| Basic Supervisory Care – applicant lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour | 480 min X 7/wk | 3360 | 180 min X 7/wk | 1260 |
| Coordination of attendant care | 60 min X 1/wk | 60 | 60 min X 1/wk | 60 |
| Total Part 2 | 3455 min/wk | 2125 min/wk | ||
| Part 3 Complex Health Care and Hygiene Functions | ||||
| Assists applicant with exercise/stretching program | 60 min X 7/wk | 420 | ||
| Administers medications | 3 min X 7/wk | 21 | ||
| Monitors medications | 3 min X 7/wk | 21 | ||
| Maintains control medication supply | 15 min X 1/wk | 15 | 30 min X 1/wk | 30 |
| Transfers from bed to bathtub/shower | 5 min X 7/wk | 35 | ||
| Prepares TENS machine | 10 min X 14/wk | 140 | 10 min X 7/wk | 70 |
| Administers TENS machine as required | 5 min X 7/wk | 35 | ||
| Total Part 3 | 610 min/wk | 177 min/wk | ||
| Total Part 1+2+3 | 4495 min/wk | 2857 min/wk | ||
| Total Hours per 12 hour day | 10.70 hr/day | 6.80 hr/day |
APPENDIX B
| Services | Form 1 | Total Minutes/wk |
|---|---|---|
| Part 1 - Routine Personal Care | ||
| Grooming- Hair- Performs styling, set and comb-out | 20 min X .5/wk | 10 |
| Fingernails | 10 min. X 1/wk | 10 |
| Toenails | 10 min. X 1/wk | 10 |
| Feeding- provides assistance whole or part in preparing serving and feeding meals | 75 min X 7/wk | 525 |
| Total Part 1 | 555 min/wk | |
| Part 2 - Basic Supervisory Function | ||
| Cleans Bathroom after use | 10 min X 7/wk | 70 |
| Changes bedding, makes bed | 5 min X 7/wk | 35 |
| Ensures comfort, safety and security in bedroom | 30 min X 21/wk | 630 |
| Assists in preparing daily apparel | 5 min X 7/wk | 35 |
| Hangs clothes/sort to be laundered/cleaned | 5 min X 7/wk | 35 |
| Basic Supervisory Care – applicant lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour | 186.85 x 7wk | 1308 |
| Coordination of attendant care | 60 min X 1/wk | 60 |
| Total Part 2 | 2173 min/wk | |
| Part 3 - Complex Health Care and Hygiene Functions | ||
| Assists applicant with exercise/stretching program | 60 min X 7/wk | 420 |
| Administers medications | 3 min X 7/wk | 21 |
| Monitors medications | 3 min X 7/wk | 21 |
| Maintains control medication supply | 30 min X 1/wk | 30 |
| Transfers from bed to bathtub/shower | 5 min X 7/wk | 35 |
| Prepares TENS machine | 10 min X 7/wk | 70 |
| Administers TENS machine as required | 5 min X 7/wk | 35 |
| Total Part 3 | 632 min/wk | |
| Total Part 1+2+3 | 3360 min/wk | |
| Total Hours per 12 hour day | 8 hr/day |
APPENDIX B (continued)
Part 4 – Calculation of Attendant Care Costs
| Services | Total min./wk | Total hrs/wk | Total monthly/hrs | Monthly Benefit | |||
|---|---|---|---|---|---|---|---|
| Part 1 | 555 | /60 | 9.25 | X 4.3 | 39.775 | X 13.19= | $524.63 |
| Part 2 | 2173 | /60 | 36.2167 | X 4.3 | 155.7318 | X 10.25= | $1,596.25 |
| Part 3 | 632 | /60 | 10.5333 | X 4.3 | 45.2932 | X 19.35= | $876.42 |
| Total cost/ month | $2,997.30 |
Footnotes
- Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”), O. Reg. 34/10
- Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
- J.R. and Primmum Insurance Company, 2018 CanLII 140991 (ON LAT)
- E.V. v. TD Insurance Meloche Monnex, 2019 CanLII 58142 (ON LAT)
- J.M. and Wawanesa Mutual Insurance Company, 2019 CanLII 76963 (ON LAT); B.D. and Wawanesa Mutual Insurance Company, 2018 CanLII 140989 (ON LAT)
- Insurance Act R.S.O. 1990 (“Insurance Act”)
- Applicant’s Brief Tab 3 and Respondent’s Brief Tab 11
- Applicant’s brief Tab 11 – page 302 and 303
- Applicant’s Brief Tab 9
- Applicant’s OT Marla Rosenfeld – OT- Testimony
- Applicant’s brief Tab 11 – page 302 and 303