S.V. v. State Farm Mutual Automobile Insurance Company, 2020 CanLII 42666

RECONSIDERATION DECISION

Citation: S.V. vs. State Farm Mutual Automobile Insurance Company, 2020 ONLAT 18-000605/AABS

Before: Kimberly Parish, Adjudicator

Date: June 15, 2020

File: 18-000605/AABS

Case Name: S.V. v. State Farm Mutual Automobile Insurance Company

Written Submissions by:

For the Applicant: David S. Wilson, Counsel

For the Respondent: Jonathan Schrieder, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant (“S.V.”). It arises out of a decision issued by the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on February 18, 2020, in which I was the hearing adjudicator. I found S.V. sustained a catastrophic impairment as defined by the Schedule.¹ I also determined she was entitled to, among other things, a portion of the attendant care benefits (“ACBs”) she claimed, along with interest from the 11th business day from the date the respondent received the retroactive Form 1s. S.V.’s request for reconsideration argues that she should have received more ACBs.

2S.V. submitted that I made significant errors in fact or law when I made the following findings:

i. the monthly amount for attendant care payable for feeding was $507.03 per month, rather than the Form 1 total claimed amount of $1,762.52 per month;

ii. no attendant care was payable for bathroom cleaning, which was noted in the hygiene section of the Form 1;

iii. no attendant care was payable under basic supervisory care, which was claimed on the Form 1; and

iv. interest was payable for attendant care from the 11th business day after the respondent received both retroactive Form 1s in February 2017, rather than from October 19, 2009.

3S.V. seeks an order that my original decision be amended to award her the claimed amounts for attendant care, and requests the decision be further amended to award interest on the attendant care benefit from October 19, 2009. In the alternative, S.V. seeks an order referring the matter to a new adjudicator for a re-hearing/consideration of the said issues.

RESULT

4S.V.’s request for reconsideration is granted in part. S.V. is entitled to attendant care benefits at the rate of $845.06 per month from October 19, 2009 to date and ongoing. S.V.’s request for reconsideration on payment of attendant care for breakfast preparation, bathroom cleaning and basic supervisory care, and interest on attendant care to be payable from October 19, 2009 is denied. Therefore, S.V.’s request that the matter be referred to a new adjudicator for a re-hearing/consideration of the said issues is also denied.

ANALYSIS

5The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

6S.V. submitted that Rule 18 b) applies.

7As explained below, I agree that I made a significant error in fact that, if corrected, would have led me to a different conclusion. This error was with respect to the monthly amount for attendant care payable for feeding, which I held should be $507.03 per month. I find the correct amount for attendant care payable for feeding is $845.06 per month. The reasons for my findings are provided below.

Rule 18 b) – Was there an error in fact or law when I found attendant care to be payable in the amount of $507.03 per month, instead of the amount claimed of $1,762.52 per month?

Attendant care amount awarded for feeding

8I erred in fact when I found that the monthly amount for attendant care payable for feeding should be $507.03 per month. I find the correct amount for attendant care payable for feeding for the preparation of lunch and dinner should be $845.06 per month. I see no error in my original decision that no amount of attendant care is payable for feeding for the preparation of breakfast.

9S.V. argues that I misapprehended the evidence when, in paragraph 76(2) of my decision, I noted that the applicant makes tea and toast for herself for breakfast and makes breakfast for her son about once per week. S.V. submitted that her evidence at the hearing was that, for two and half years following the accident until 2018, she sometimes prepared breakfast but that sometimes her husband also prepared breakfast. S.V. also submitted that her evidence at the hearing was that sometimes she will prepare breakfast, toast, for her son. S.V. further submitted that, on page 22 of the occupational therapy (“O.T.”)² report which she relied, the report recommended 10 minutes per day/7days per week for “(prompting, encouraging to perform and prepare breakfast - client reports poor appetite).” The respondent, State Farm Mutual Automobile Insurance Company (“State Farm”), refutes this and submits that I did not misapprehend the evidence.

10I disagree with the applicant’s submission that I misapprehended the evidence when I determined that no monthly amount was payable for attendant care for feeding for breakfast preparation. I relied on S.V.’s testimony at the hearing that she makes tea and toast for herself for breakfast. I find S.V.’s submissions that sometimes her husband will make breakfast for her and that sometimes she prepares breakfast for her son represents a discrepancy over the frequency in which she prepares breakfast for herself and/or her son. I do not find this discrepancy would lead to a different conclusion, as I already found S.V. is both able to and has conceded to making tea and toast for herself and she prepares breakfast for her son about once/week. I found, as a result, that she was not entitled to attendant care for feeding for breakfast preparation. Therefore, my decision to award no amount payable for the preparation of breakfast is upheld.

11S.V. further submitted that the O.T. who prepared both Form 1s did not recommend the amounts for feeding based upon her needing encouragement to eat. Rather, she argues, the recommendation for feeding was based upon how her impairments negatively impacted her ability to independently self-initiate and independently prepare meals. Further, S.V. argued that I misinterpreted the O.T. report and erred when I referenced within footnote 50 that the Form 1 noted that she spent one and a half hours preparing lunch and dinner. S.V. submitted this information was noted on page 22 of the O.T.’s report and not on the Form 1. Page 22 of the O.T. report notes: “As per discussions with the client, she typically spent one hour and one and half hours [emphasis mine] preparing lunch and dinner, respectively.” As a result, S.V. argues that I misread the O.T. report and thus incorrectly concluded S.V. was entitled to one and a half hours per day for both lunch and dinner. State Farm did not address this specific submission.

12I accept that I did make an error in fact when I noted within paragraph 76(2) of the decision that the information referenced within footnote 50 was from the Form 1. S.V. is correct that the information cited within footnote 50 was, in fact, found on page 22 of the O.T. report and not on the Form 1. However, I do not find this error to be significant. While I cited the wrong source, I relied on the same information.

13That said, I find I did make a significant error of fact when I awarded S.V. 90 minutes per day for the preparation of lunch and dinner. Upon further review of page 22 of the O.T. report, the recommendation was as noted in bold above. I find this significant error of fact would have led to a different result had this error not been made. Therefore, I amend the original amount which I awarded for attendant care payable for feeding for the preparation of lunch and dinner to the amount of $845.06 per month. This is based upon the recommendation noted in both Form 1s and on page 22 of the O.T. report. Therefore, for lunch and dinner preparation, I find S.V. is entitled to 150 minutes per day x 7 days/week = 1050 minutes per week. This calculates to 1050 minutes/week divided by 60 = 17.5 hours/week. The 17.5 hours/week multiplied by 4.3 = 75.25 hours per month at an hourly rate of $11.23.³ Therefore the monthly amount for attendant care payable for feeding for lunch and dinner preparation is $845.06.

No amount awarded for bathroom cleaning

14S.V. argues that I erred in fact and law when I concluded no attendant care was payable for bathroom cleaning, which was noted under the Hygiene section of the Form 1 as it did not relate directly to S.V.’s personal care. I had further noted in the decision that this would be covered under a housekeeping and home maintenance benefit. S.V. argued that, because bathroom cleaning is specifically provided as one of the “care requirements” as evidenced by its inclusion on the Form 1, there was no legal basis for my finding. She further argued that I provided no reasoning why the wording in the Form 1 with respect to the services related to the bathroom cleaning were ignored. I disagree. My finding that S.V. was not entitled to an amount payable for bathroom cleaning under attendant care was because it did not directly relate to S.V.’s personal care.

15S.V. provided new arguments relating to my decision to award her no amount for bathroom cleaning and submitted that there can often be overlap of various benefits when dealing with specific services. To that end, S.V. relied on jurisprudence from the Financial Services Commission of Ontario (“FSCO”), Lucia Stargratt & Zurich Insurance Company.⁴ That decision was not provided for the original hearing. S.V. argued through her reconsideration submissions that the decision addressed overlap of the housekeeping and home maintenance benefit with the attendant care benefit. The decision made specific reference to cleaning which could fall under either benefit, depending on the context and purpose of the service. In her closing submissions for the hearing, S.V. referenced the FSCO appeal decision, Zurich North America and Lucia Stargratt.⁵ S.V. relied on a section within that appeal decision referencing the housekeeping and home maintenance benefit which supported the notion that an insured person’s need for assistance and the provision of that assistance by the family member, creates that obligation.⁶ S.V. also provided new arguments through her reconsideration submissions relating to my finding she was catastrophically impaired in the area of activities of daily living. She relies on these new arguments and the original FSCO decision of Stargratt to support her position that she is entitled to attendant care benefits for bathroom cleaning. The request for reconsideration is not an opportunity for a losing party to provide new arguments and further FSCO jurisprudence once the deficiencies in her case have been exposed in a decision. In my decision, I found the applicant was not entitled to an amount for attendant care relating to the bathroom cleaning noted under the “Hygiene” section of the Form 1. The reason for my finding was because it did not directly relate to her personal care and I noted it would be covered under a housekeeping and home maintenance benefit. Therefore, I find I did not err in fact or law.

No amount awarded for basic supervisory care

16S.V. argues that I erred when I found no attendant care was payable for basic supervisory care. In her reconsideration submissions, S.V. raised new arguments relating to custodial care and introduced further case law and FSCO jurisprudence which was not introduced at the hearing.

17For the same reason I have already stated in the paragraph above, these new arguments and cases produced by S.V. have not been considered.

18In my decision, I reviewed the recommendations made within the applicant’s O.T. report, which recommended 1,260 minutes per week of basic supervisory care to assist S.V. with emotional support and re-integrating her into the community. S.V. argues that this report supports that she is entitled to basic supervisory care and that she should not be disentitled to attendant care for basic supervisory care because she lacks the ability to respond in an emergency. However, included on page 23 of my decision, I referenced the Form 1 which recommended basic supervisory care at 1,260 minutes/week because she lacks the ability to respond in an emergency or needs custodial care due to changes in behaviour. I weighed this evidence with the applicant’s testimony and the respondent’s O.T. report. I concluded that the applicant could respond in the event of an emergency. I determined the emotional support and re-integration within the community which were recommended in the applicant’s O.T. report were not attendant care services payable under basic supervisory care. As a result, my decision made a finding that no attendant care for basic supervisory care was payable. S.V. has attempted through the reconsideration process to reargue her position for which she was unsuccessful at the hearing. S.V. has not pointed out where an error in fact or law was made when I determined no attendant care was payable for basic supervisory care. Therefore, I do not find an error was made with respect to my finding that S.V. is not entitled to attendant care for basic supervisory care.

Date from which interest is payable on attendant care

19S.V. submits that I erred in fact or law when, in paragraph 88 of the decision, I determined that interest was payable from the 11th business day after the respondent received both retroactive Form 1s in February 2017, rather than from October 19, 2009. S.V. argues that I did not have the following at the time of the hearing:

the benefit of full argument from the parties, given her restriction on the limitation of submissions. Consequently, the submissions of the applicant consisted of two sentences and a reference to a number of decisions.⁷

20I reject this argument as a ground for reconsideration. The in-person hearing was scheduled for seven days and the parties were then granted 20 pages for initial and responding written submissions, and 5 pages for the applicant’s final reply. The reconsideration process is not the appropriate forum for the applicant to raise this and then provide further arguments to support its case which were not provided at the hearing.

21Further, S.V. clarified through her reconsideration submissions that she had not relied on the Divisional Court appeal case of Angela Grigoroff v. Wawanesa Mutual Insurance Company⁸ and that she submitted that case only for my review as it would have been improper not to do so. S.V. argues that in my decision, I agreed with the approach and test set out within Bradley Michael Mulhall v. Wawanesa Mutual Insurance Company⁹ which addressed when an insurer has sufficient information to determine payment of an attendant care benefit. However, S.V. argued I did not consider the date in which the respondent ought to have known attendant care benefits were owed. S.V. submitted that I did not review medical documentation, and reports addressing S.V.’s continuous impairments. As a result, I did not undertake the exercise to determine whether the test in Mulhall is applicable. S.V. provided additional references to specific documents which formed part of the hearing record and made further new submissions relating to the case law it produced for the hearing.

22Contrary to S.V.’s submissions, I considered and applied the evidence in relation to the relevant case law. I disagree that I did not properly apply the principle established in Mulhall. As noted in paragraph 86 of my decision, I agreed with the approach and test set out in Mulhall but found it did not apply to S.V.’s case. I provided reasons why I found the facts distinguishable and concluded the respondent would have been unaware of the level of S.V.’s attendant care needs prior to receiving the Form 1s in February 2017. Thus, I find that S.V. has failed to establish that I made any error in fact or law that I should grant interest on attendant care to be payable from October 19, 2009.

CONCLUSION

23For the reasons stated above, S.V.’s request for reconsideration is granted in part. S.V. is entitled to attendant care benefits at the rate of $845.06 per month from October 19, 2009 to date and ongoing. S.V.’s request for reconsideration on payment of attendant care for breakfast preparation, bathroom cleaning, basic supervisory care, and interest on attendant care to be payable from October 19, 2009 is denied. I find S.V. has not met her onus that I made significant errors of fact or law with respect to the determination on those benefits. Therefore, S.V.’s request that the matter be referred to a new adjudicator for a re-hearing/consideration of the said issues is also denied.

Kimberly Parish

Adjudicator

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Ontario Regulation 403/96 - Statutory Accident Benefits Schedule for Accidents on or After November 1, 1996
2. 2Exhibit 6 of hearing record - Tab 28, Occupational Therapy Report of Stacey Baboulas, dated February 1, 2017 and two retroactive Form 1’s, dated November 24, 2016
3. 3Exhibit 6 from hearing – Tab 28, at page 7 of Assessment of Attendant Care Needs (Form 1) – hourly rate of $11,23/hour based on level 1 (A)
4. 4Lucia Stargratt & Zurich Insurance Company, FSCO A99-000521, dated October 4, 2001
5. 5Zurich North America and Lucia Stargratt, FSCO P01-00045, dated March 31, 2003
6. 6Ibid, at 11
7. 7Reconsideration submissions of applicant, at 22
8. 8Angela Grigoroff v. Wawanesa Mutual Insurance Company, 2015 ONSC 3585
9. 9Bradley Michael Mulhall v. Wawanesa Mutual Insurance Company, ONSC 7495, December 18, 2015