Stewart v. Certas Home and Auto Insurance Company, 2021 CanLII 88141

Citation: Stewart v. Certas Home and Auto Insurance Company, 2021 ONLAT 20-004275/AABS

Release date: 09/15/2021

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:

William Stewart Applicant

and

Certas Home and Auto Insurance Company Respondent

DECISION

ADJUDICATOR: Nathan Ferguson

APPEARANCES:

For the Applicant: William Stewart, Applicant William Harding, Counsel

For the Respondent: Certas Home and Auto Insurance Company Bruce Chambers, Counsel

Court Reporter: Connor, Victory Verbatim

HEARD by Teleconference: July 27, 2021

OVERVIEW

1The applicant (“WS”) was involved in an automobile accident on January 22, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The respondent (“Certas”) denied WS’ request for Attendant Care Benefits (“ACBs”) and housekeeping and home maintenance benefits. WS submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.

2Having reviewed all of the evidence, and on a balance of probabilities, I find that WS is entitled to ACBs and housekeeping and home maintenance benefits, though at a lesser amount than he sought.

PRELIMINARY ISSUES

3The parties agreed that the $1,836.24 treatment plan relating to an OCF-18 submitted October 28, 2019 was no longer in dispute and requested that this be removed from the Tribunal’s consideration. Therefore, I will not address this issue (identified as issue 3 in Member Lake’s August 11, 2020 Order).

ISSUES

4The issues to be determined are:

a. Is the applicant entitled to attendant care benefits of $1,097.00 per month from February 11, 2020 to date and ongoing?

b. Is the applicant entitled to housekeeping and home maintenance benefits of $100.00 per week from February 11, 2020 to date and ongoing?

c. Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

5Although I reviewed all of the evidence submitted by the parties, I will not repeat the content of each document in this decision. Instead, I have focused on the aspects of the evidence that I found particularly compelling in arriving at this decision including highlights of WS’ testimony regarding his function and needs as compared with the evidence of the assessing and treating professionals involved in his care.

6There is no dispute in this instance that WS was involved in a very serious collision resulting in significant injuries. Indeed, counsel for Certas acknowledged the accident was severe in opening submissions. The dispute in this application centres around WS’ function and seeming independence. To qualify for the benefits claimed, WS is required to demonstrate that these are reasonable and necessary on a balance of probabilities.

7The applicant’s injuries have already been deemed catastrophic and both parties’ Form 1 documents suggest that some ACBs are reasonable and necessary. The dispute is really the extent of ACBs to be provided and whether housekeeping and home maintenance is also reasonable and necessary.

WS’ Function and Independence:

8WS lives alone in a 780 square-foot, one-bedroom, first-floor condominium. He admits that he is physically capable of performing the tasks necessary in his self-care. He can bathe and groom and is able to make simple meals. He can do light tidying and even more strenuous activity at his volunteer position on a farm owned by a friend. He is not as physically capable as he was before the accident and, although the accident was severe, he is not limited to the point of incapacity or requiring full-time care.

9However, WS argues that he does require some care and more specifically support and encouragement to engage in necessary tasks like meal preparation, grocery shopping, planning and self-care. Without the presence of a supportive individual, WS argues that he is not motivated or focused enough to attend to necessary tasks and struggles to maintain a simple routine.

10This is supported by the balance of available evidence. Azrah Lavji is an occupational therapist accepted as an expert in this field for the purposes of this hearing and described WS as “frustrated”, “angry” and “anxious” in her testimony, leading her to conclude he is struggling with the completion of basic functional tasks. Ms. Lavji saw WS biweekly and, having interacted with him frequently over a prolonged period, testified that WS made significant physical gains, but was “declining” from an emotional perspective.

11In her April 5, 2018 Assessment, Ms. Lavji recommended assistance with tasks such as feeding. She explained that this is because of the physical challenge of lifting heavy cookware and bending, but elaborated that he was also, and in my view more importantly, limited as a result of his easy frustration and lack of motivation. She felt it necessary that he receive supports for “feeding” in the sense that he requires “queuing and encouragement” to plan and make meals. She acknowledged that he could otherwise purchase and eat fast food to survive, but that he would not make the effort to eat healthily or consistently without support.

12Similarly, regarding his ability to do housekeeping, Ms. Lavji recommended support and explained this was not for the ability to care for himself, but the motivation to do so consistently. WS did have the assistance of a dietician, but Ms. Lavji considered it necessary not only to have a healthy eating menu or plan, but to have support in shopping for and making these recommended meals in WS’ particular circumstances and as a result of his apparent lack of motivation or drive.

13Emilia Radovini was also qualified as an expert occupational therapist for the purposes of this hearing and, having met with WS, testified that she considered him to struggle with irritability, anger, low mood, anxiety, poor time-management, difficulty with task completion, easy frustration, isolation and general emotional function. Ms. Radovini saw WS 16 times on a weekly basis before preparing her April 28, 2020 report. This was interrupted by the Covid-19 pandemic, but she continues to see him occasionally at present.

14She explained that WS has tried all manner of new activity in an effort to better himself including guitar lessons, which he quit in short order, and recreational cycling, which he did not “bother to” pursue even though the bicycle was approved by Certas. Ms. Radovini considered WS’ limitations to be largely cognitive as he struggles to maintain a schedule, structure and purpose.

15Ms. Radovini confirmed that WS is able, physically, to do “basic tasks” including cleaning, vacuuming, emptying his cat’s litter box and his volunteer farm-work (which can include cleaning, repairs, moving equipment, working with animals and some significant physical exertion) although she noted his function is better when he limits that activity to five hours or less. However, the real limitation that she has observed affecting his task-completion is his inconsistency due to mood or motivation. She also explained that her recommendation for ACBs erroneously included a monthly figure when she intended this to be weekly.

16This was also generally consistent with the testimony of Donna Barefoot, psychotherapist. Ms. Barefoot considered WS limited largely by frustration, lack of follow-through, irritability, and withdrawal.

17Dr. Unarket, a physiatrist, began treating WS after the accident and continues to see him as of the date of this hearing. Dr. Unarket initially treated WS for his “severe brain trauma incident” as a result of skull fractures and bleeding on the surface of, and within, his brain. WS had other injuries to his spine and Dr. Unarket sees him to “work on” his pain, weakness, and musculoskeletal injuries generally. He observed that mood medications were ineffective because WS was “easily frustrated” by side-effects and overall feelings. Dr. Unarket confirmed WS continues to have pain, which increases with exertion.

18A clinical neuropsychologist, Dr. Rowe, was qualified as an expert and called by Certas. Dr. Rowe acknowledged WS had “extreme” or “fairly severe” emotional issues including a lack of confidence and inability to “move forward”. In cross-examination, Dr. Rowe confirmed that WS reported difficulty with memory and needing to make lists, irritability, impulsivity, and hopelessness. Dr. Rowe also confirmed that he “had issues” staying on task or completing tasks especially when fatigued.

19However, Dr. Rowe concluded that while ACBs were not necessary from a neuropsychological perspective, WS required more support from a mental health perspective. Dr. Rowe noted WS did not appear unable to remember to do tasks but confirmed the impact to his overall quality of life was significant following the accident and attributed this solely to the accident. I note that Dr. Rowe qualified his conclusions and report in his testimony, stressing that he does not look at issues like “apathy” and “motivation” and admitted that this might impact WS’ function notwithstanding his lack of diagnosable memory impairment.

20Anna Maria Vogiatzis is another occupational therapist and was qualified as an expert for attendant care assessment in this hearing and assessed WS on December 20, 2019. She concluded that WS did benefit from housekeeping and support in his hygiene tasks, but considered the housekeeping to be sufficient at two hours per week (rather than the four hours he previously received) and one hour per week for a PSW to support hygiene tasks. The weekly housekeeping allocation was to be reduced over eight weeks to zero. Ms. Vogiatzis acknowledged that WS might not improve over time, and that he might need ongoing supports, as comfort or emotional support may be important for an individual who is not coping well with the after-effects of a severe injury.

21The medical evidence presented to me was very much in keeping with WS’ testimony. I considered him a credible witness for a number of reasons. He was plain, spontaneous, and forthright in his description of his ability and activity level. He made several admissions about his function, bolstering his credibility. He was generally consistent with the observations of the various individuals engaged in his care. His demeanour also appeared generally in keeping with the function he described.

22WS considers his brain injury his “biggest issue” and more specifically the impact he experiences in his mood and motivation. He described pain with some motions like bending or kneeling and feels that he has headaches “all the time”, but focused much more on his brain function, which he experiences as largely limiting his motivation or engagement. He struggles to control his emotions and feels that he rapidly switches from sadness to irritability or aggression. He finds that he is easily “set-off” and can become very upset almost instantly about minor matters. He keeps to himself much more than before his accident and consistently described simple activity as requiring a “push” or “big push” to begin or complete.

23He is able to volunteer at his friend’s farm on a relatively consistent basis despite his limitations and this is somewhat difficult to reconcile with the notion that he is significantly limited in simple task completion. However, he explained that this is possible for a few basic reasons. The farm is owned by a friend and is a supportive environment. When he is frustrated or upset, he is able to discuss this with his friend or to simply disengage from the activity or “pick up and leave”. WS also stressed that he considered his ability to work and complete tasks a fundamental aspect of his worth before the accident and this volunteer position helps him to feel some measure of that.

24As to his function in his home, he admits he can do housekeeping, but this used to take approximately one hour and now is done in small portions, inconsistently, spanning a period of days. Things he used to do weekly are now done monthly if he is feeling up to it.

25He finds the ongoing housekeeping very difficult to engage in and painful to complete. When he previously had assistance from a housekeeping service, he felt considerably less stress and was less fatigued and more motivated in all other aspects of his function. He explained that some of this was simply having a person come by who would speak with him a few minutes in addition to decreasing his responsibility to do tasks he found frustrating and difficult.

26He used to have coverage for a registered social worker (RSW) to visit weekly and to assist in shopping and to planning meals. She was encouraging and made him feel much better. A personal support worker (PSW) also attended weekly and would assist with some laundry and small cleaning tasks not performed by the housekeeping service.

Entitlement to ACBs and Housekeeping and Home Maintenance:

27Section 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 because of an accident for services provided by an aide or attendant. WS bears the burden of proving entitlement to ACBs on a balance of probabilities.

28WS is physically capable of the tasks necessary in his housekeeping and personal care. However, based on all the evidence presented, I find that he is not consistently engaging in these tasks. Based on his credible evidence, which is generally supported by all of the medical evidence, even that presented by Certas, WS benefited significantly from the housekeeping and home maintenance benefits he received and the supports of the RSW and PSW that previously assisted him.

29I find that WS is entitled to ACBs for the period in dispute because they are reasonable and necessary. There is really very little dispute that WS’ function was impaired by his limited motivation, his inconsistency in effort, his irritability and easy frustration and his overall disengagement or withdrawal. There is also little dispute that this was lessened by the comfort and support of his RSW, by the elimination of some physically demanding housekeeping tasks and because of the assistance provided to him in shopping, planning, and making meals.

30Ms. Lavji’s March 5, 2018 Form 1 suggests that WS requires $1,097.00 per month in ACBs while Ms. Vogiatzis’ February 10, 2020 Form 1 indicates that only $48.00 per month is reasonable and necessary.

31I find that neither Form 1 is in keeping with the level of support that WS credibly testified is beneficial to him. He explained that support in shopping, attending cooking demonstrations and encouragement to plan and engage in tasks from his RSW was particularly helpful as was the comfort he received emotionally from seeing his RSW and PSW regularly.

32He also considered the housekeeping and home maintenance benefit necessary and tremendously beneficial as this alleviated his pain, eliminated a significant source of frustration, and kept him from becoming overwhelmed.

33He did not need or use many supports from the PSW (other than some light housekeeping which he acknowledged he is physically capable of performing and which may also be completed by the housekeeping service if necessary). The real benefit experienced in the PSW’s attendance was comfort and encouragement in his home.

34For this reason, I find that the supports provided to WS in his ability to plan, shop, make meals and be provided comfort are reasonable and necessary within the context of the ACBs under the Form 1’s heading of providing comfort, safety and security to WS.

35As to the amount which ought to be approved, it ought to fall between the amounts provided by the parties. Ms. Vogiatzis recommended 60 minutes of support once per week ($48.38 per month). Ms. Lavji recommended 120 minutes of support daily ($699.98 per month). Based on WS’ testimony that he requires this support for a few hours each week, I find that the appropriate amount of support for his comfort, safety and security is 240 minutes per week.

36As the housekeeping and home maintenance benefit will eliminate WS’ need to do housekeeping, these portions of Ms. Lavji’s Form 1 are not reasonable or necessary. WS does not require assistance with feeding himself – this portion of the Form 1 is also not reasonable or necessary.

37I further find that WS is entitled to housekeeping and home maintenance benefits of $100.00 per week. Eliminating or greatly reducing his responsibility to do housekeeping tasks allows WS to participate in other activities with less pain, less fatigue, less irritability, and less frustration. He is much more likely to be motivated and to engage in other activities when he is not in pain from bending, lifting, carrying, and doing repetitive motions.

38As a side benefit, he also finds his emotional status is improved with the interactions he has with the cleaning service and this overall betterment leads to increased function in all other activities. I note again that even the respondent’s assessor (Ms. Vogiatzis) considered two hours per week reasonable at the time of assessment and, although a scaling down of assistance was recommended, she acknowledged that WS not improve further and might benefit from supports indefinitely. I accept WS’ evidence that he is at his best level of function with support and encouragement to plan and engage in necessary tasks.

Entitlement to Interest:

39WS is entitled to payment of overdue benefits. As a result, he is also entitled to interest on the portion of benefits that are overdue.

ORDER

40WS is entitled to attendant care benefits to be calculated on the basis of 240 minutes per week of eligibility for comfort, safety and security from February 11, 2020 to date and ongoing.

41WS is entitled to housekeeping and home maintenance benefits of $100.00 per week from February 11, 2020 to date and ongoing.

42He is also entitled to interest on the unpaid portion of these benefits.