Citation: A.N. vs. Aviva Insurance Company of Canada, 2020 ONLAT 19-000685/AABS

Released Date: 07/09/2020

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.N.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Alicia Stuart

For the Respondent:

Marcin J. Panasewicz

HEARD:

Via written submissions

OVERVIEW

1A.N. was injured in an accident on May 29, 2016, and sought various benefits, including attendant care services, from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Aviva denied the benefits on the basis that A.N. sustained predominantly minor injuries that were treatable within the Minor Injury Guideline (“MIG”) and therefore were not reasonable and necessary. A.N. disagreed and submitted an application to the Tribunal for resolution of the dispute.

2Aviva later removed A.N. from the MIG on the basis of a psychological diagnosis. The applicability of the MIG was initially listed as an issue in dispute but is no longer a live dispute between the parties. Instead, the following issues are in dispute for this written hearing.

ISSUES IN DISPUTE

3The following issues remain in dispute:

i. Is the applicant entitled to an attendant care benefit, in the monthly amount of $361.75, for the period of January 23, 2017 and ongoing, in a treatment plan (OCF-18) submitted on January 3, 2017 and denied on January 23, 2017?

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 A.N. is not entitled to payment for attendant care, interest or an award.

ANALYSIS

Attendant Care Benefits

5The issue of A.N.’s entitlement to payment for attendant care under s. 19 of the Schedule is actually narrower than the issues in dispute indicate. As there is no dispute that A.N. is not catastrophically-impaired, it follows that she would not be entitled to attendant care for any period beyond 104 weeks post-accident, as attendant care benefits are capped under s. 20(2). As a result, if the Tribunal finds that A.N. is entitled to payment for attendant care, her period of entitlement is confined to attendant care incurred between January 3, 2017 to May 27, 2018. There is no dispute that A.N. is not entitled to attendant care on an ongoing basis, as the Tribunal’s Order indicates.

6The actual dispute before the Tribunal can then be whittled down even further. Section 19 states that the insurer shall pay for all attendant care that is reasonable and necessary and incurred by or on behalf of an insured person as a result of an accident. As A.N. concedes that she did not “incur” any attendant care expenses during the period in dispute, I agree with Aviva that an analysis of the requirements to prove that the expense was incurred under s. 3(7)(e) of the Schedule is moot.

7Instead, A.N. submits that the Tribunal should exercise its discretion under s. 3(8) of the Schedule to deem the attendant care expenses incurred due to Aviva’s unreasonable conduct in adjusting her claim that she argues prevented her from incurring the attendant care. Section 3(8) provides that if the Tribunal finds that an expense was not incurred by an insured because the insurer unreasonably withheld or delayed payment of the benefit in respect of the expense, the Tribunal may, for the purpose of determining entitlement to the benefit, “deem” the expenses to have been incurred, and therefore payable.

8To that end, A.N. submits that attendant care should be “deemed” incurred for the following reasons: due to Aviva unreasonably keeping her within the MIG when the medical evidence suggested she was not; because Aviva only removed her from the MIG after the 104 week period had elapsed; because Aviva failed to respond to her Assessment of Attendant Care Needs (“Form-1”) when it was submitted; that it has failed to schedule an Insurer’s Examination (“IE”) to address her attendant care needs; because it failed to reconsider its attendant care position after removing A.N. from the MIG; and, that, due to the accident, she was unable to work at one of her two jobs in order to pay for attendant care out of pocket and where she had no indication that Aviva would reimburse her.

9Aviva’s account differs considerably. It offers a rebuttal to all of A.N.’s submissions, detailed below, and submits that A.N. has not demonstrated that the attendant care services were reasonable and necessary, that Aviva acted unreasonably in withholding the payment of attendant care or that she would have incurred the expenses had it not unreasonably withheld the benefits or maintained its MIG position. On a balance of probabilities, I agree with Aviva.

Attendant care services are not reasonable and necessary for A.N.’s impairments

10A.N. relies on a Form-1 dated October 5, 2016, completed by Ms. Toman that recommends $361.75 in monthly attendant care in order to assist with dressing and undressing at 140 minutes per week, donning and doffing her compression stockings at 140 minutes per week, 35 minutes per week to supervise tub transfers and 35 minutes per week to maintain and inspect her grab bars/tub rails. The Form-1 report indicates that attendant care is needed because of A.N.’s shoulder and back pain when attempting these activities.

11With great respect, I find the amount of attendant care recommended for the impairments identified to be unreasonable and unnecessary. First, it is undisputed that Aviva removed A.N. from the MIG on the basis of psychological impairments and A.N. has not demonstrated how these psychological impairments affect her daily function. Other than subjective pain and a pre-existing shoulder injury that does not seem to have been exacerbated by the accident, there are no compelling medical records indicating that A.N.’s accident-related physical impairments are anything but minor injuries, as defined by the Schedule. Following the accident, A.N. self-reported pain primarily in her face, chest and left thigh. A.N.’s reporting to IE assessor Dr. Khaled indicates issues with left thigh and hip pain but revealed no physical abnormalities. While the report states that she can do all of her pre-accident tasks and that they allegedly now take longer, it is unclear how these impairments necessitate the need for 350 minutes per week in attendant care.

12Second, A.N. reported to Dr. Khaled that she is independent with her personal activities of daily living and is able to do housekeeping and maintenance, which undermines her claim that she requires frequent rest breaks or modifications. In the home assessment report of Ms. Toman, A.N. reports no issues with grooming, feeding, mobility, driving, laundering, using the washroom, lower body dressing, exercising, taking medication or transferring into and out of the shower. While she reports some difficulty, A.N. is able to complete her upper and lower body dressing. A.N. did not explain why 35 minutes of “stand-by assistance” per week for tub transfers was reasonable and necessary where she has a grab bar/rail and where she has reported no issues with transferring. In a similar vein, it is absurd to have an attendant “inspect” the grab bar for five minutes every day of the week to ensure that it is safely and securely attached.

13Third, on page 13 of Ms. Toman’s report, it states that A.N. returned to her delivery driver position at [a restaurant] after taking two weeks off, which is contrary to her statement that she could not incur attendant care due to her inability to work. On the evidence, it appears she worked this part-time position until March 2017. The report also states that at the time it was completed, A.N. had returned to her full-time position as a purchasing coordinator, which she continues to do. Again, while pain is noted, I find it difficult to reconcile the recommendation for 350 minutes per week in attendant care with the fact that A.N. reported independence with her personal and daily tasks and was able to return to working two jobs. On the evidence, there is minimal indication that A.N.’s accident-related physical function is disabled to the point that attendant care is required.

Aviva’ denial was not unreasonable

14A.N. asserts that she originally submitted Ms. Toman’s report and the Form-1 to Aviva on November 17, 2016. She directs the Tribunal to letters from November 17 and 22, 2016 and December 8, 2016 requesting that the incurred costs be reimbursed with interest. A.N. submits that Aviva did not deny her claim until January 23, 2017, and that its denial was not based on s. 42 or on a s. 44 IE but rather on Aviva’s position that no attendant care benefits were payable pursuant to s. 14(2) and s. 25(2) because A.N. was in the MIG. In addition, A.N. submits that Aviva did not deny her claim within 10 days as required.

15In response, Aviva submits that the Form-1 was actually not sent to the insurer before January 3, 2017 and that, despite the letters provided by A.N., she has not furnished evidence to prove otherwise. Aviva concedes that it denied A.N.’s claim four business days after the 10-day mark, in contravention of s. 42(3), but submits that the minor delay was not unreasonable conduct and, in any event, that the four-day delay had no impact on A.N.’s decision not to incur attendant care or that it triggers s. 3(8). In response to A.N.’s submission that Aviva unreasonably kept her within the MIG until removing her for psychological impairments on March 21, 2018, Aviva asserts that this position is disingenuous as it attempted to schedule several IEs to determine the applicability of the MIG and various benefits but A.N. (through her counsel) refused to attend.

16On review of the correspondence between the parties, I agree with Aviva. While the Tribunal is in receipt of two of A.N.’s letters requesting payment for the attendant care report that also reference the Form-1, the letters do not have any attachments despite stating that they were faxed. There is no November 22, 2016 letter in evidence. There is no indication the Form-1 was sent and received by Aviva anytime prior to January 3, 2017, which is the date indicated on Aviva’s denial letter and explanation of benefits dated January 23, 2017. Indeed, A.N.’s letter to Aviva dated January 18, 2017 asks Aviva to confirm that it received A.N.’s OCF-1 and “all the documentation [A.N.] sent through a second time.” In my view, this may explain the apparent lack of communication and missing Form-1 but A.N. does not address this letter in submissions. In any event, while I agree with A.N. that Aviva’s response was four business days late under s. 42(3), I find she has not demonstrated that she incurred any of the attendant care during the period of delay or demonstrated how Aviva’s four-day delay prior to curing its late denial of her claim unreasonably prevented her from incurring same.

17More problematic for A.N., in my view, is the slew of evidence provided by Aviva indicating that A.N. refused to attend several properly scheduled IEs to determine the applicability of the MIG and her entitlement to various benefits. Despite A.N.’s submission that her letters went unanswered by Aviva between November 17, 2016 and January 23, 2017, the correspondence suggests that it is more likely that A.N. was frustrating the process than Aviva. Indeed, it appears that Aviva attempted to schedule s. 44 IEs to address the MIG on December 5, 2016 and December 15, 2016 (later rescheduled to December 29, 2016). A.N. refused to attend and did not show up to either of the IEs despite proper notice. Aviva scheduled another IE on February 7, 2017 to determine the applicability of the MIG and to address the psychological treatment plans A.N. submitted, but A.N. refused to attend and did not show up despite proper notice. When Aviva scheduled a driver assessment IE for May 1, 2017, A.N. only agreed to attend on the condition that the IE only addressed the claimed benefit and not the MIG. To that end, A.N. submitted a consent form that states, in bold, capitalized letters, that she was not consenting to being assessed for any other benefit. It was not until January 10, 2018 that A.N. agreed to attend the outstanding IEs, which were promptly rescheduled for January 12, 2018. Following the IEs, Aviva removed A.N. from the MIG on March 21, 2018.

18A.N. further alleges that it was unreasonable of Aviva not to reconsider its attendant care position following her removal from the MIG. However, shortly after her removal from the MIG, A.N. submitted a new OCF-18 on May 3, 2018 requesting an attendant care assessment to determine updated needs for a new Form-1. Aviva then scheduled a paper review with Dr. Khaled, who had also assessed A.N. in a s. 44 IE three months prior, in order to determine whether an in-home assessment was reasonable and necessary. For the reasons identified above, which I agree with, Dr. Khaled determined that the assessment was not reasonable and necessary. Aviva then denied A.N.’s claim on May 29, 2018, which A.N. has not disputed.

19Suffice to say, I agree with Aviva that its conduct was not unreasonable. Where the medical documentation in evidence does not support physical impairments outside of the MIG, where there is minimal evidence that A.N. had accident-related functional impairment and where A.N. continuously frustrated Aviva’s ability to secure medical opinions to address her claim that she was out of the MIG, I find it cannot be said that Aviva acted unreasonably in maintaining its MIG position and, in turn, its position that attendant care was not available to A.N. under s. 14.2 of the Schedule as a result. Indeed, once A.N. attended the IE, Aviva removed her from the MIG and then considered her updated attendant care claim, ultimately finding it not reasonable and necessary.

A.N. has not demonstrated that she would have incurred the expenses

20In order for the Tribunal to exercise its discretion under s. 3(8) to deem attendant care expenses incurred, A.N. must demonstrate that attendant care expenses would have been incurred but for Aviva’s unreasonable withholding or delay. In support of her position, A.N. submits that as a result of her accident-related impairments, she was unable to work at her part-time position as a delivery driver with [a restaurant]. As a result, she submits that she was unable to afford to incur additional expenses as her income was reduced and she did not have confirmation from Aviva that she would be reimbursed. She submits that Aviva’s lack of response to her letters should be punished under s. 3(8) as it was unreasonable and prevented her from incurring the attendant care she needed.

21I disagree. To begin, Ms. Toman’s Disability Certificate dated September 27, 2016 does not indicate that A.N. was substantially unable to complete her work tasks or that she was forced from part-time work, as alleged. On the evidence, it appears that, at most, A.N. only missed two weeks of work as a part-time delivery driver immediately following the accident in May 2016. She reported to various assessors that she was working two jobs when the Form-1 was completed on November 17, 2016 and did not quit her part-time job until March 2017. Her full-time work was unaffected following the accident. In my view, while personal finances are not a significant determining factor, I find these facts significantly undermine her claim that she was unable to afford to incur attendant care services out of pocket because she was unable to work.

22Putting this aside, I am also not satisfied that but for Aviva maintaining its position that she was in the MIG and allegedly not responding to the Form-1, that A.N. would have incurred attendant care for the services outlined in the Form-1, as they are not reasonable and necessary. As detailed above, A.N. was working two jobs and self-reported minimal difficulties with her daily and personal tasks when the Form-1 was submitted. This is commendable. However, even if A.N. was given the benefit of the doubt that the Form-1 was submitted at some point prior to January 3, 2017, with great respect, I find it highly questionable that it was Aviva’s delayed response that prevented her from securing a professional service provider to come into her home for two separate visits per day for 350 minutes each week in order to help her put her upper body clothing on, help with her compression stockings, watch her get in and out of the tub and check that the grab bar was securely fastened. A.N. provided no evidence that she sourced providers, obtained quotes or was ready to incur these services or, generally, why they would be reasonable and necessary expenses for her accident-related impairments given her functional abilities.

23Accordingly, I find that A.N. has fallen well-short of meeting her burden to prove that the Tribunal should exercise its discretion to deem the attendant care recommended in the Form-1 incurred under s. 3(8) of the Schedule due to Aviva unreasonably delaying or withholding the benefit and thus preventing her from incurring same. As no benefits are overdue, interest is not payable under s. 51.

Award under s. 10

24A.N. also claims an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable withholding and delaying the payment of attendant care for various reasons outlined above. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits plus interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments. A.N. relies on the same submissions she offers for s. 3(8) of the Schedule, as the language for both that section and s.10 of O. Reg. 664 are similar. I find an award is not appropriate. Having declined to exercise the Tribunal’s discretion to deem the expenses incurred under s. 3(8), it follows that I find no basis to grant an award under s. 10 of O. Reg. 664 as there is no evidence that Aviva acted unreasonably in handling her claim.

CONCLUSION

25A.N. is not entitled to payment for attendant care, interest or an award.