J.P. v. Aviva General Insurance, 2020 CanLII 34498

Citation: J.P. vs. Aviva General Insurance, 2020 ONLAT 19-004854/AABS

Tribunal File Number: 19-004854/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:

J.P. Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Lisa Bishop

For the Respondent: Nisaa Khan

HEARD: By way of written submissions

OVERVIEW

1J.P. was injured in a motorcycle accident on June 27, 2017 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). As a result of the accident, J.P. sustained an injury to his shoulder, collarbone and fractured four ribs. He claimed attendant care benefits (“ACBs”) for two separate periods post-accident. Aviva agreed that attendant care for the first eight weeks was reasonable and necessary but denied payment because J.P.’s provider, his wife, did not meet the requirements to prove that the treatment was incurred under the Schedule. J.P. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute.

ISSUES IN DISPUTE

2The following are the issues to be decided:

i. Is the applicant entitled to an attendant care benefit, in the monthly amount of $1,746.25, for the period from June 27, 2017 to August 29, 2018, submitted on July 12, 2018, denied on August 29, 2018?

ii. Is the applicant entitled to an attendant care benefit, in the monthly amount of $105.25, for the period of July 20, 2018 and ongoing, submitted on July 12, 2018, denied on August 29, 2018?

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

3I find on the evidence that J.P. is not entitled to attendant care for either period in dispute as he has not demonstrated that the care was provided by a professional service provider or that his wife sustained an economic loss in providing care.

ANALYSIS

Attendant Care Benefits

4I find J.P. is not entitled to attendant care for either period in dispute, as he has not demonstrated that his service provider meets the definition under the Schedule or that his provider sustained an economic loss.

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)(e) 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. Further, s. 3(8) states that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

6J.P. submits that his wife provided attendant care services to him during the periods in dispute post-accident and in accordance with the retroactive Assessment of Attendant Care Needs forms (“Form-1”) completed by Mr. De Feo, (occupational therapist) dated July 12, 2018. Following the accident, J.P. submits that because of his rib fractures and shoulder pain, his wife assisted him in lying down, sitting up, walking, reaching with his left hand, cooking, helping to bathe and dry him and assisting with using the bathroom. Mr. De Feo recommended $1,746.25 in attendant care for the first period post-accident and $105.24 per month moving forward in order to help J.P. with personal care, lower body dressing, toenail care, cleaning the washroom and changing bedding. On November 19, 2018, J.P. submitted an OCF-6 for attendant care invoices from his wife in the amount $23,231.52 for the period June 27, 2017 to August 16, 2017.

7On these facts, J.P. offers two arguments for entitlement to ACBs. First, he submits that his wife was a nurse prior to the accident and her previous experience in this area entitles her to payment for attendant care under the Schedule for services she provided to J.P., which are akin to what she would have done in the ordinary course of her employment, occupation or profession. Second, and in the alternative, J.P. submits that he is entitled to up to $3,000 a month in ACBs for the first 104 weeks post-accident so long as same can be proven reasonable and necessary. He further relies on s. 3(8) of the Schedule to argue that the Tribunal should deem the ACBs incurred due to Aviva unreasonably withholding payment of ACBs following receipt of the retroactive Form-1’s on July 12, 2018.

8In response, Aviva submits that it does not dispute that J.P. required attendant care assistance during the eight-week period post-accident (being June 27, 2017 to August 22, 2017) based on its own s. 44 assessments dated October 30, 2018. However, Aviva submits that J.P. has failed to provide proof of incurred expenses for this eight-week period as required under s. 3(7)(e) and further submits that J.P. has failed to provide evidence that the attendant care provider, his wife, provided services in the course of the employment, occupation or profession in which she would have ordinarily engaged, but for the accident or that she sustained an economic loss as a result of providing him services, as either are required under s. 3(7)(e)(iii)(A) of the Schedule.

9On the evidence, I agree with the parties that J.P. required attendant care services during the period post-accident when he was still recovering from his rib fractures and it would be reasonable and necessary to provide services to assist with difficult activities during this time, approximately four to eight weeks post-accident. To its credit, Aviva found ACBs to be reasonable and necessary during this period. However, contrary to J.P.’s submissions, I agree with Aviva that J.P. confirmed under oath that his wife was retired from nursing during the period she was providing him attendant care services and therefore was not providing services to him in the course of her “employment, occupation or profession in which she would have ordinarily engaged” but for the accident, which is required under s. 3(7)(e)(iii)(A). The Tribunal was not provided with evidence or an affidavit from J.P.’s wife indicating that she was still accredited or providing services as a nurse, that she was actively engaged in a job search for same or that she was forced to turn down employment in order to care for J.P. during this time. Indeed, it is uncontroverted that J.P.’s wife was retired from nursing.

10I agree with J.P. that a family member can be a service provider and that a professional service provider is not required to prove an economic loss. However, I cannot accept J.P.’s position that his wife was acting in the course of her employment, occupation or profession as a nurse when she was providing care. Accordingly, I find that J.P. is excluded from claiming payment for attendant care benefits under the Schedule unless he can demonstrate that his wife suffered an economic loss in doing so. However, as Aviva submits and I agree, J.P. has not provided evidence of his wife’s economic loss under s. 3(7)(e)(iii)(A) or provided a breakdown of the services provided. On this basis, I find that J.P. has not satisfied his onus to prove that his wife suffered an economic loss to overcome this hurdle.

11While I accept that J.P. needed assistance from his wife following the accident and recognize the important role that family members play in these situations, I agree with Aviva that the submission of retroactive Form-1s over one-year post-accident indicates a lack of urgency in claiming ACBs. Additionally, by his own admissions under oath, J.P. was feeling better and returned to independent activities within the eight-week period and reported same to various assessors, which undermines the claim that ACBs beyond this period are reasonable and necessary.

12Even though I cannot find in favour of J.P. because he has not proven an economic loss, I also agree with Aviva that the amount of $23,231.52 he has claimed in invoices for the 8-week period from June 27, 2017 to August 16, 2017 is excessive and unsupported by the evidence and his accident-related impairments. To echo Aviva’s point, it exceeds the maximum $3,000.00 per month that is payable under s. 19(3)(1) by a considerable amount and the $1,746.25 amount claimed on the retroactive Form 1. The invoice is just an OCF-6 for a one-year period and does not provide an hourly, weekly or monthly breakdown of tasks performed, details about any of the tasks that are identified or the rates for level of care provided for each. It simply indicates that 816 hours were performed without explanation. This does not satisfy J.P.’s burden to prove that the services are reasonable and necessary or that they were incurred.

13I also agree with Aviva that there is no indication that it unreasonably withheld or delayed ACBs in order to justify deeming the ACBs incurred and therefore payable under s. 3(8) of the Schedule, as proposed by J.P. I find Aviva responded to J.P.’s submission of the retroactive Form-1 by scheduling s. 44 assessments within 10 days, which is confirmed in the notice of examination letter dated August 29, 2018. It determined that ACBs were reasonable and necessary for a narrow period of time but not payable unless incurred under the Schedule. On the evidence, I find this was an entirely reasonable position to take.

14With regards to the second period in dispute, being $105.25 in ACBs per month, for the period of July 20, 2018 to date and ongoing, I find limited evidence that ACBs for this period are reasonable and necessary. Again, while I am alive to J.P.’s submissions that he continued to need ACBs during this period over one-year post-accident, I prefer the s. 44 assessment reports of Dr. Drew (orthopaedic surgeon) and Ms. Bertolo (occupational therapist) dated October 30, 2018 over the retroactive Form-1 from Mr. De Feo. In addition, there are no recommendations or referrals from J.P.’s family physician indicating ACBs were required.

15Aviva’s s. 44 reports both indicate that J.P. does not require ACBs or aides from July 20, 2018 to date and ongoing. Indeed, in its submissions, for every attendant care recommendation made by Mr. De Feo for this period, Aviva highlighted an admission from J.P. himself that undermined the supposed need. For example, the Form-1 called for help with lower body dressing, toenail grooming and hygiene assistance but J.P. self-reported at his examination or assessment being able to dress himself and put on socks, cut his toenails by placing them on the toilet seat and that he was able to change his bedsheets four to six weeks post-accident. In my view, these admissions undermine the veracity of the recommendations in the retroactive Form-1. Putting J.P.’s admissions aside and, in a similar vein, the in-home assessment revealed normal function in J.P. and the ability to complete all of his personal care tasks and routines independently.

16Finally, even if ACBs were reasonable and necessary for this period, which I do not accept, J.P. has again not provided proof of incurred expenses from July 20, 2018 to date to meet his burden, as the only OCF-6 in evidence pertains to the first period in dispute. The evidence falls well-short of meeting his burden.

17Accordingly, I find that J.P.’s wife did not provide attendant care in the course of her employment, occupation or profession, did not sustain an economic loss in doing so and decline to deem the services incurred under s. 3(8). For the reasons above, I find the ACBs are not payable for either period in dispute.

Award and Interest

18J.P. also claims entitlement to an award due to Aviva’s failure to adequately adjust his claim, provide timely and adequate responses and because it wrongfully withheld payment of ACBs. Under s. 10 of O. Reg. 664, the Tribunal may award up to 50% of the total benefits claimed if it determined that the insurer acted unreasonably withheld or delayed the payment of benefits.

19On the evidence, I find an award is not appropriate and find no evidence of bad faith to warrant an award. J.P.’s submissions on this issue are general and do not provide specific evidence that Aviva unreasonably withheld or delayed the payment of ACBs where it conducted s. 44 assessments and an examination under oath in order to respond to J.P.’s claim and determine entitlement. In any event, J.P. has not demonstrated that the ACBs were incurred under the Schedule, so since no benefits are payable, the Tribunal cannot award 50% of zero.

20As no benefits are overdue, no interest is payable under s. 51 of the Schedule.

CONCLUSION

21For these reasons, I find J.P. is not entitled to payment for ACBs for either period in dispute as he has not demonstrated that it was provided by a professional service provider in the course of employment or that an economic loss occurred. An award and interest are not payable.

Footnotes

1. 1O. Reg. 34/10, as amended.