Released Date: 06/24/2020
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:
A.A.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Aline Avanessy
For the Respondent:
Louise Kanary
HEARD:
Via written submissions
OVERVIEW
1A.A. was injured in an accident on April 26, 2016 and sought various benefits, including attendant care, from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). The parties initially agreed to a combination hearing on a variety of issues. Just prior to the commencement of the hearing, the parties notified the Tribunal that they had resolved all of the issues in dispute—save for the attendant care benefits, interest and the award under s. 10 of O. Reg. 664—and were electing to proceed via written hearing on the remaining issues.
ISSUES
2According to the Tribunal’s Order dated September 11, 2019 in response to the parties’ motion on consent, the following issues remain:
i. Is the applicant entitled to attendant care benefits in the amount of $2,442.67 per month for the period of September 22, 2016 to April 18, 2017, which was denied by the respondent on December 23, 2016?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?
result
3A.A. is not entitled to payment for attendant care benefits, interest or an award.
ANALYSIS
Attendant Care Benefits
4The parties agree that s. 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses that are incurred by or on behalf of an insured as a result of an accident for services provided by a professional. The amount payable shall not exceed the amount recommended according to a Form-1 submitted in accordance with s. 42.
5As I understand it, the actual issue of entitlement to attendant care can be narrowed even further to focus on services that were actually incurred by A.A. during the period identified above. There is no dispute between the parties that for the period between September 22, 2016 to March 31, 2017, A.A. submitted no invoices, receipts or proof of “incurred” attendant care, and that the period beyond April 18, 2017 is not in dispute. The only attendant care invoices that were provided by A.A. are for the month of April 2017, being two invoices for attendant care reportedly provided by Modern Angels over seven days between April 4, 2017 and April 27, 2017, totalling 35 hours of care in the amount of $1,107.40.
6This fact is important because, in conjunction with s. 19(1)(a) of the Schedule, s. 3(7)(e) provides that an expense in respect of goods or services is not incurred by an insured unless, (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.
7With this in mind, it is also not disputed that Aviva made a single payment to A.A. in the amount of $457.00 for attendant care incurred for the month of April 2017 in accordance with its own Form-1. Aviva submits that it paid the $457.00 for the first invoice in good faith “despite the absence of any detail setting out the assistance allegedly provided, and the time spent performing each task.”
8A.A. submits that he incurred the total amount of $1,107.40 in attendant care claimed in the two Modern Angels invoices and is “perplexed” by Aviva’s argument that it paid the $457.00 for the first invoice in good faith but only in accordance with its own Form-1, as opposed to A.A.’s Form-1, which recommended $2,442.67 in monthly attendant care. On this basis, he contends that he is entitled to payment for the remaining $650.40 in attendant care from the second Modern Angels invoice, as he incurred it.
9However, on review of the two invoices, it appears that the total amount can be whittled down even further, as the amount A.A. would even be entitled to payment for is actually only $270.72, assuming it is reasonable and necessary. This total represents the $80.88 remaining from the first April 2017 invoice that Aviva declined to pay plus $189.84 from the second invoice. For clarity, this $189.84 amount represents the 6 hours of attendant care allegedly received on the final day of the period in dispute, being April 18, 2017, totalling $168.00, plus HST. The other three dates listed on the second invoice fall on April 20, 25 and 27, 2017, respectively, all of which fall outside of the attendant care period in dispute in this matter.
10Aviva submits that despite its good faith payment of $457.00 for the first invoice, the recommendations in A.A.’s Form-1 are “significantly exaggerated and completely detached from reality”. It submits A.A.’s Form-1 should be given no weight as its recommendations—25 minutes per day for A.A. to shampoo his hair seven days per week, 25 minutes per day for bathing and drying, 2 hours of daily assistance with feeding, 25 minutes per day to clean the bathroom, 20 minutes per day to change bedding and 180 minutes per day to respond to emergencies—are “wholly implausible both practically speaking and given the minor nature of [A.A.’s] impairments.”
11A.A. seems to rely entirely on the fact that he was out taken of the Minor Injury Guideline and incurred the services and does not provide any analysis as to why the unpaid attendant care was reasonable and necessary when he had not incurred attendant care in the one-year post-accident. On review of A.A.’s Form-1, I agree with Aviva’s position that the recommendations made by Mr. Wong cannot reasonably be tethered to A.A.’s accident-related impairments where he continued in his pre-accident employment, had not met with his family physician beyond his initial attendance and was not filling any prescription medications. More problematically, in my view, is the fact that the two invoices provided by Modern Angels do not even identify the type of care or the level of care provided over 4-7 hours for each visit and A.A.’s submissions do not speak to these details. Accordingly, the Tribunal is left to guess which services from A.A.’s Form-1 were provided in these two invoices.
12This is relevant because incurred services are still required to be reasonable and necessary in order to be payable under s. 19. To be frank, even if I accept that the services were incurred, I find it very odd and unexplained by A.A. how he went nearly a full year without incurring any attendant care (or at least did not furnish evidence of same for this hearing) and then suddenly required 35 hours of unspecified attendant care over seven individual days, spread out over a 23-day period in April 2017. It is not sufficient to simply refer to the Form-1 as evidence of necessity without explanation. Was there a decline in A.A.’s condition? Were there other care providers? What services did A.A. require and for what? There are more questions than answers.
13Without any specifics explaining what kind of services were provided to A.A. by Modern Angels and why the services were reasonable and necessary after a year without same, the Tribunal cannot find that A.A. is entitled to payment, as he has fallen well short of meeting his burden of proof under s. 19. As no benefits are overdue, it follows that no interest is payable.
Award
14A.A. submits that he is entitled to a 50% award under s. 10 of O. Reg. 664 due to Aviva’s bad faith delay in paying the benefits. Under s. 10, the Tribunal may award up to 50% of the total benefits claimed if it determines that an insurer unreasonably withheld or delayed the payment of benefits. I find an award is not appropriate. A.A.’s submissions on s. 10 are again without specifics. Given how many of the issues were resolved prior to this hearing and are not actually before the Tribunal, combined with Aviva’s good faith payment of attendant care, I find it cannot be said that it acted unreasonably or in bad faith. Further, since no benefits are payable as a result of this hearing, it follows that the Tribunal cannot award up to 50% of zero, as requested.
CONCLUSION
15A.A. is not entitled to payment for attendant care as he has not demonstrated that the services allegedly incurred were reasonable and necessary. A.A. is not entitled to an award under s. 10.
Released: June 24, 2020
__________________________
Jesse A. Boyce
Adjudicator