Licence Appeal Tribunal File Number: 20-012796/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:
Shannon Hansen
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Brent McQuestion, Counsel
For the Respondent:
Michelle Friedman, Counsel
Patrick Sinclair, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shannon Hansen, (“the Applicant”), was involved in an automobile accident on October 24, 2015, and sought benefits from Aviva General Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Applicant was deemed to have sustained a catastrophic impairment as a result of the accident, but was denied certain housekeeping and home maintenance, (“HH”), benefits by the Respondent. She submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issues in dispute for this hearing are:
a. Is the Applicant entitled to $14,900.00 for housekeeping and maintenance, for the period October 24, 2015 to August 12, 2018?
b. Is the Respondent liable to pay an award pursuant to s.10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find that the Applicant is not entitled to the benefits claimed, nor an award.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck nearly head-on by an oncoming vehicle that had crossed the grassy median of the highway. Remarkably, the Applicant sustained no fractures as a result of the accident but developed severe psychological injuries, which persisted and progressed. The Applicant was deemed to have sustained a catastrophic impairment as a result of her predominantly psychological, accident-related injuries.
5The parties agree that Applicant developed a need for assistance with her HH activities as a result of her accident-related injuries. It is undisputed that the Applicant’s adult son was employed to complete her HH tasks for a period prior to when her injuries were deemed catastrophic. The Applicant was granted access to HH benefits once her injuries were deemed catastrophic, pursuant to section 23 of the Schedule. As I understand, the Respondent has paid all of the Applicant’s HH expenses following the date of her application for a determination of catastrophic impairment.
6At issue is the Applicant’s entitlement to HH for the period pre-dating the application for a determination of catastrophic impairment.
7The Applicant contends that her HH expenses pre-dating the catastrophic impairment determination should be deemed incurred pursuant to section 3(8) of the Schedule. The Respondent submits that the Applicant neither incurred HH expenses according to the definition in section 3(7)(e)(iii) of the Schedule, nor should her HH expenses be deemed incurred pursuant to section 3(8).
8For the following reasons, I find that the Applicant has failed to meet her onus to demonstrate that her HH expenses were incurred or ought to be deemed incurred, pursuant to sections 3(7)(e)(iii) and 3(8).
ANALYSIS
9HH benefits are available to catastrophically injured persons who suffer a substantial inability to perform the HH tasks that they did prior to the accident. HH benefits are capped at the rate of $100.00 per week, pursuant to section 23 of the Schedule. Section 45(6) of the Schedule provides that the Applicant is entitled to payment of all HH expenses incurred before the date of the determination of catastrophic impairment.
10Relevant to this dispute, section 3(7)(e)(iii) of the Schedule provides that expenses in respect of services referred to in the Schedule are not incurred unless: the person who provided the goods or services did so in the course of their employment, occupation or profession in which they are ordinarily engaged in, or, sustained an economic loss as a result of providing the services.
11Section 3(8) provides me with the authority to deem the expenses to have been incurred if I find that the expenses were not incurred because the Respondent unreasonably delayed or withheld payment.
12The onus is on the Applicant to demonstrate that she is entitled to HH benefits as claimed.
13The Applicant made no submissions, nor tendered any evidence demonstrating that the HH expenses she claims were incurred pursuant to section 3(7)(e)(iii). Thus, the analysis requires me to focus only on whether the Respondent unreasonably withheld or delayed payment of the HH expenses.
14Pursuant to section 3(8), the Applicant must demonstrate that the Respondent not only unreasonably withheld or delayed payment of the benefit. She must also demonstrate that she was unable to incur the benefit due to the withholding.
15The Applicant submits that, by October 6, 2017, or earlier, the Respondent had all the necessary medical evidence to find that she was catastrophically impaired. To her, the delay in making the determination prejudiced her ability to incur HH expenses from a professional without any indication the expense would be reimbursable. She submits that the Tomec v Economical Mutual Insurance Company, (“Tomec”), decision provides guidance on how the Tribunal may exercise its discretion in applying section 3(8) of the Schedule1.
16The Respondent submits that the Applicant has not demonstrated that the benefits were unreasonably withheld or delayed and that Tomec is not applicable in this situation. I agree with the Respondent.
17Tomec does not apply to the current facts. Tomec addressed an insurer’s decision to deny entitlement to a benefit that an insured was not entitled to under the statute, and the decision spoke to the application of the limitation period in that situation. The Tomec decision addressed discoverability and held that a benefit could not be denied if the insured persons entitlement to that benefit never crystalized before the denial. According to Tomec, the entitlement crystalizes when access to the benefit is provided by meeting certain criteria – like how a catastrophic impairment determination provides access to reasonable and necessary HH expenses. However, in the current situation, the Respondent denied payment of the expenses because they were not incurred pursuant to section 3(7)(e)(iii), not because she failed to dispute it within the times prescribed by the Schedule.
18The Respondent’s actions while adjusting the Applicant’s claim were reasonable. The Respondent became aware of the Applicant’s application for a determination of catastrophic impairment when it received it on October 10, 2017. Contrary to the Applicant’s submissions, there is no evidence before me that suggests that the Respondent was aware that the Applicant’s condition could be catastrophic prior to receipt of the application. The Respondent wrote to the Applicant on October 11, 2017 and sought additional information and insurer’s examinations, (“IEs”), pertaining to her impairment. The IE reports were completed on May 15, 2018. The Respondent, in compliance with the time limitations in section 45(3) of the Schedule, advised the Applicant on May 23, 2018 that it determined that she sustained a catastrophic impairment. The May 28, 2018 letter also confirmed that the Applicant was now eligible for incurred HH expenses, up to a maximum of $100.00 per week.
19The Applicant submitted the HH expenses on August 16, 2018. The services were performed by her adult son, for the period from October 4, 2015 to August 12, 2018. The Respondent replied on October 5, 2018 and sought statutory declarations from the Applicant’s son. The Respondent advised that it would give the expense further consideration following receipt of the declarations. The Respondent received the declarations and replied again, on November 14, 2018, and advised that it would not pay the HH expenses because it was not satisfied that the service provider did so in the course of his employment or occupation for which he would ordinarily have been engaged.
20The Respondent is permitted to seek additional information and insurer’s examinations in response to a claim for a determination of catastrophic impairment and such requests are not unreasonable. Section 33 and 44 of the Schedule govern requests for additional information. Section 33 obliges the Applicant to provide relevant information reasonably required to assist the Respondent in determining the Applicant’s entitlement to a benefit. Section 44 provides the parameters in which the Respondent may seek an examination by a healthcare professional of its choosing. The Applicant provides no rationale for why or how the Respondent acted unreasonably when it exercised its rights pursuant to these sections. Thus, I am unable to consider any delay relating to the requests pursuant to sections 33 and 44 of the Schedule to be unreasonable.
21The Respondent’s untimely reply to the expenses does not entitle the Applicant to payment. Indeed, the Respondent replied to the expense nearly two months after receipt. However, the remedy for a late response to an expense such as HH is that the amount payable accrues interest pursuant to section 51 of the Schedule. The remedial provisions in section 38 of the Schedule are not applicable in this situation as section 38 refers only to claims for medical and rehabilitation benefits and for approval of assessments or examinations, not HH.
22The Respondent’s untimely response had no impact on her ability to incur HH services. As noted previously, the onus is on the Applicant to demonstrate that not only did the Respondent unreasonably withhold the payment of benefits, but she must also demonstrate that the services were not incurred as a result of the unreasonable withholding. Here, the Applicant claims entitlement to benefits before the Respondent’s untimely response. Recall, the expenses are related to the period from October 24, 2015 to August 12, 2018 and the Respondent’s untimeliness relates to a period from August 16, 2018 to October 5, 2018. Thus, the timing of the delay had no impact on the Applicant’s inability to incur the expense because the delay occurred after the period for which the Applicant claims entitlement to the expense.
23Considering the above and notwithstanding her catastrophic injuries sustained in the accident, I find that the Applicant is not entitled to HH for the period claimed. There is no evidence demonstrating that the Respondent unreasonably withheld or delayed payment of HH expenses. Further, the Respondent’s untimely response to the expenses claimed was immaterial to the Applicant’s ability or inability to incur the expense in accordance with the Schedule.
24In light of my finding, it follows that the Applicant is not entitled to an award pursuant to Regulation 664 because I found that no benefits are payable, thus, no benefit could be unreasonably withheld or delayed.
CONCLUSION AND ORDER
25The Applicant is not entitled to the HH benefits claimed, nor an award.
26The application is dismissed.
Released: November 18, 2022
Brian Norris
Adjudicator