Tribunal File Number: 19-000175/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:
Z.S.
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Z. Jwan Desai
For the Respondent:
Lori J. Sprott
WRITTEN HEARING:
March 20, 2020
OVERVIEW
1Z.S. was injured in an automobile accident on April 16, 2016 and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule). As a result of the accident, Z.S. sustained a mild traumatic brain injury, concussion, post-traumatic epilepsy, headaches, injuries to his right shoulder, arm and wrist and depression, anxiety and post-traumatic stress disorder.
2In January 2020, Intact accepted Z.S. as being catastrophically impaired (“CAT”). He sought attendant care benefits which were denied by Intact on the basis that Z.S.’s alleged service provider, his wife Z.A., did not meet the requirements for a provider under the Schedule and did not incur an economic loss. Z.S. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
3The following issues are to be decided, as set out in the case conference order:
i. Is the applicant entitled to attendant care benefits in the amount of $1,400.00 per month relating to care provided to him by his wife, [N.A.], for the period April 16, 2016 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4I find that Z.S. is not entitled to attendant care for the period in dispute as he has not demonstrated how the care was provided or that Z.A. sustained an economic loss. Interest and an award are not payable.
ANALYSIS
Attendant Care Benefits
5Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant. Section 3(7) provides further guidance on when an expense is incurred:
(i) the insured person has received the goods or services to which the expense relates;
(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and,
(iii) 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.
The positions of the parties
6There is no dispute between the parties that as a CAT claimant Z.S. is entitled to attendant care. Further, Intact agrees it is liable to fund services to the extent they are provided in accordance with an Assessment of Attendant Care Needs (“Form-1”) completed in accordance with s. 44 and incurred within the meaning of the Schedule. Over the life of the claim, Z.S. has submitted attendant care claims for services provided by three providers post-accident: Spark Lifecare, Second Family Care, and his spouse, Z.A. Prior to the CAT determination, a total of $32,862.26 had been paid in attendant care. Following the CAT determination, the Second Family Care invoices were also paid by Intact in the amount of $5,186.99.
7Instead, the issue in dispute relates solely to the attendant care allegedly provided by Z.A. and whether she sustained an economic loss, as defined by the Schedule, in providing that care. Z.S. submits that prior to the accident, Z.A. was employed at […] for seven months until April 2016, when she was laid off due to the company’s bankruptcy. Z.S. argues that but for the accident, Z.A. would have returned to work but could not due to her having to provide attendant care to Z.S. post-accident. In line with the Schedule, Z.S. submits that he has “promised” to pay Z.A. for the attendant care she provided, which Z.S. submits consists of “grooming, mobility, hygiene, bathing, supervisory care and medication” in the amount of $1,400 per month. In support of his position, Z.S. relies on Z.A.’s paystubs and record of employment, affidavits from Z.S. and Z.A. attesting to the attendant care relationship and Z.A.’s economic loss, 39 “invoices” from Z.A. for attendant care for the period from December 2016 to date and case law.2
8In response, Intact submits that Z.S. has not proven the alleged attendant care services were incurred within the meaning of the Schedule. First, it submits that Z.S. has not proven that the attendant care services were received and second, Z.S. has not proven that Z.A. sustained an economic loss as a result of providing attendant care services.
9On the evidence, I agree with Intact and adopt all of its positions on the issue.
No proof of services provided under s. 3(7)(i)
10On the facts before the Tribunal, I agree that Z.S. has failed to prove on the balance of probabilities that attendant care services were provided by Z.A.
11Over the life of the file and despite the requirement that attendant care expenses be submitted within 30 days of being incurred, Z.A. has made only two expense submissions in the over three years since the accident. The first OCF-6 submission was on December 9, 2016, documenting six months of attendant care totalling $8,200. The second OCF-6 submission was on August 23, 2019, which included 33 months of attendant care totalling $46,200. While I accept that Z.S. may need assistance from Z.A. and the Tribunal recognizes the important role that family members play in providing care, I agree with Intact that the sheer amount of attendant care being claimed is not adequately broken down or identified for proper assessment. As a result, it is very difficult to ascertain exactly what Z.A. did for Z.S., for how long she did it and what economic loss she incurred as a result.
12Instead, in support of his claim, Z.S. has submitted 39 “invoices” that are largely identical, save for the dates. As Intact argues, the invoices are void of details of the expenses Z.A. allegedly incurred in providing care, including the dates and approximate times that attendant care services were provided for Z.S. Each invoice simply gives a month-long range for “Date Service Provided”, for e.g., July 16, 2016 to August 16, 2016. Under a separate column for “Hours” it simply states: “As per Form-1”. Under “Costs”, every invoice claims exactly $1,400 with no variation from week to week or month to month to account for changes in care or overlap with other providers. The invoices do not include itemized expenses for services incurred, do not have a breakdown of minutes or hours per task, a rate or approximate rate of pay for those tasks or even greater detail of what the tasks provided entail, beyond “grooming, mobility, hygiene, bathing, supervisory care and medication.” Without a breakdown or itemization, it remains unclear whether these tasks required dedicated 24-hour care or sporadic assistance from Z.A.
13The affidavits provided by Z.A. and Z.S. are not helpful in providing greater detail to fill in these evidentiary gaps. Instead, the affidavits simply parrot the tasks identified above. While I would be prepared to accept that an “invoice” from a family member providing attendant care need not be as sophisticated as a Form-1 from a professional provider, I still find that the level of detail provided in the “invoices” from Z.A. provoke more questions than answers. Ultimately, I find the evidence falls well short of the evidentiary burden required by s. 3(7)(i), as the invoices are incredibly vague, identical from month to month and do not account for any overlap in the attendant care provided by Spark Lifecare and Second Family Care and paid for by Intact.
14In a similar vein and against these facts, I agree that there is no evidence before the Tribunal, other than Z.S. and Z.A.’s affidavits, to demonstrate a promise to pay, or an obligation to pay Z.S.’s own spouse for services provided, especially where a significant amount of professional care is already being provided.
Z.A. is not a personal support worker under s. 3(7)(iii)(a)
15While Z.S. does not specifically argue that Z.A. qualifies as a professional provider under s. 3(7)(iii)(a), he does submit that Helmer is applicable in this matter. I disagree and find the case to be distinguishable. In Helmer, the person providing attendant care was working as a professional personal support worker prior to the accident and the Divisional Court dealt with that very narrow issue. Here, I agree with Intact that there is no evidence that Z.A. provided attendant care in the course of her employment, occupation or profession in which she would ordinarily have been engaged, but for Z.S.’s accident.
No economic loss as a result of providing services under s. 3(7)(iii)(b)
16Section 3(7)(iii)(B) of the Schedule requires that for attendant care services to be “incurred”, an economic loss must be sustained as a result of providing those services. Here, it is undisputed that Z.A. was terminated from her part-time employment at […] prior to the accident due to the company’s bankruptcy, a fact reflected in Z.A.’s record of employment. Further, as Intact submits, Z.A. also had knee replacement surgery in late 2016, which would, even on the most optimistic recovery timeline, certainly have hindered her ability to provide attendant care to Z.S. for several months. Despite Z.A.’s claims, I find she has not sustained an economic loss as a result of providing attendant care services to Z.S. after the accident.
17I also find Z.S. has not proven that the failure of Z.A. to obtain further employment following […]’s bankruptcy is as a result of providing attendant care services for Z.S. As noted, the invoices are silent on how many hours of attendant care Z.A. provided on a daily, weekly or monthly basis. In turn, without a breakdown of how many hours of care Z.A. was forced to provide for Z.S., it is difficult to analyze how Z.A. was precluded from securing part-time employment outside of the home.
18Even if I were to accept Z.A.’s contention that she had every intention to return to work and was prevented from doing so because of her attendant care obligations, I find there is no evidence before the Tribunal with respect to any job search efforts or job offers on the part of Z.A. that would provide proof of economic loss as a result of providing care. In my view, the absence of this type of evidence is also what distinguishes this case from G.J. v. Coachman Insurance Co., because in that Tribunal case, the applicant’s wife demonstrated that she turned down potential employment in order to continue providing care for her husband. In this matter, there is no evidence before the Tribunal that Z.A. was actively seeking employment or was forced to turn down employment as a result of providing care.
Z.S. has not met his burden to prove attendant care was incurred under s. 3(7)
19All of this is to say that I find Z.S. has failed to establish on a balance of probabilities that attendant care services were provided by Z.A. over and above the attendant care services provided by Spark Lifecare and Second Family Care. Further, I find Z.S. has not proven that any economic loss was sustained by Z.A. as a result of providing attendant care.
Award and Interest
20Z.S. claims payment for an award under s. 10 of O. Reg. 664 due to Intact unreasonably delaying or withholding payment of his attendant care benefits while refusing to deem him CAT. Under s. 10, the Tribunal may award up to 50% of the total benefits claimed if it is satisfied that the insurer unreasonably withheld of delayed payment of benefits. Here, I find an award is not appropriate.
21Contrary to Z.S.’s claims, I do not find that Intact has taken a “rigid” view of the incurred requirement in the Schedule. Rather, on the evidence, I ultimately agree with Intact’s interpretation of the legislation and its handling of this issue. Further, I find no evidence that Intact adjusted Z.S.’s CAT claim improperly or in bad faith. Accordingly, I decline to order an award.
22As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
CONCLUSION
23For these reasons, I find Z.S. is not entitled to attendant care for the period in dispute as he has not demonstrated how the care was provided or that his spouse sustained an economic loss under s. 3(7). Interest and an award are not payable.
Released: April 9, 2020
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- See, for e.g., Helmer v. Belair Direct Insurance Co., 2018 ONSC 2888; and G.J. v. Coachman Insurance Co., 2019 CanLII 126208 (ON LAT Reconsideration).