Released Date: 04/19/2022
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:
Salome Gichuki
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION AND ORDER
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Baldeep Virk, Counsel
For the Respondent:
Jeffery E. Naganobu, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, Salome Gichuki, was involved in an automobile accident on May 22, 2018, and sought benefits from the respondent, TD Insurance Meloche Monnex, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent partially approved the applicant's claim for attendant care benefits. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
a. Is the applicant entitled to attendant care benefits in the amount of $7,644.34, less $225.75 approved by the respondent, per month for the period from May 22, 2018 to date and ongoing?
b. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to establish circumstances that would warrant the payment of attendant care benefits before October 31, 2019 when she submitted an Assessment of Attendant Care Needs (Form 1). The applicant is, however, entitled to be reimbursed for 33 hours of attendant care expenses incurred between November 2020 and February 2021 at an hourly rate of $14.00. The respondent is liable for a total of $462.00 plus interest calculated in accordance with s. 51 of the Schedule.
ANALYSIS
Section 42(5) of the Schedule bars the applicant from claiming attendant care before submitting a Form 1
5Section 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aide. The insured person bears the onus of establishing entitlement to these benefits on a balance of probabilities: see Scarlett v Belair Insurance, 2015 ONSC 3635.
6Section 42(5) of the Schedule provides that an insurer is not required to pay an expense incurred before a Form 1 is prepared and submitted to the insurer by an occupational therapist or registered nurse.
7The applicant submitted her Form 1 to the respondent on October 31, 2019. She acknowledges that s. 42 of the Schedule bars claims for attendant care benefits before the submission of a Form 1 but submits that her circumstances are exceptional and warrant accommodation. She relies on case law permitting "retroactive" claims for attendant care expenses incurred before the submission of a Form 1 and asks the Tribunal to order payment of her attendant care expenses from the date of the accident to ongoing.
8The Tribunal has allowed retroactive attendant care claims in very narrow circumstances. Where an insured person's need for immediate care prevented them from requesting that care, the Tribunal has held that it would be absurd to hold them to strict compliance with s. 42(5). In Kelly and Guarantee Company of North America2 [Kelly], the Financial Services Commission of Ontario determined that an applicant who sustained life-threatening catastrophic injuries, including loss of consciousness and ongoing cognitive impairment, could claim attendant care received before submitting a Form 1.
9In Kelly, the applicant was neither legally nor physically capable of submitting a Form 1 sooner than she did. Her circumstances practically prevented her from claiming the care she urgently needed. The Tribunal has, following Kelly, interpreted s. 42(5) of the Schedule to allow retroactive attendant care claims in urgent circumstances that make compliance with the provision impossible or impracticable.3 However, there is broad consensus in the Tribunal's case law that allowing all retroactive claims would render s. 42(5) meaningless.4
10The applicant makes several submissions in support of her retroactive attendant care claim. First, she submits that she did not submit a Form 1 sooner than October 31, 2019 because she did not recognize the services she was receiving were attendant care. Because she did not recognize the importance of this information to her claim, she submits, she did not advise her counsel she was receiving care. Second, she submits that she had no reason to submit a Form 1 sooner than she did because the respondent had determined her injuries to be within the Minor Injury Guideline and had advised her that attendant care benefits are not available for persons who sustain a minor injury.
11The respondent submits that the applicant has failed to establish urgent circumstances or to provide a reasonable explanation as to why she should be permitted to claim expenses she incurred before submitting a Form 1.
12I agree with the respondent. The reasons the applicant has provided as to why she should be permitted to claim expenses retroactive to the date of the accident are not exceptional. They do not involve the level urgency, impossibility, or impracticability present in cases where the Tribunal has permitted claims pre-dating the submission of a Form 1.
13The applicant initiated her attendant care claim soon after being removed from the Minor Injury Guideline in September of 2019. Under s. 14 of the Schedule, attendant care benefits are not available for impairments that are not minor injuries. The respondent advised the applicant in correspondence dated June 1, 2018 that it had determined her impairment to be a minor injury and that she was consequently ineligible to claim attendant care benefits. While the applicant submits that this letter demonstrates unreasonable conduct on the part of the respondent that practically prevented her from applying for attendant care benefits, the Schedule confines claims for attendant care benefits to cases involving non-minor injuries. The respondent's correspondence simply informed the applicant of the coverage that was available to her at the time. In other words, it was not the conduct of the respondent but the governing statutory scheme that prevented the applicant from proceeding with a claim.
14The applicant has failed to establish the kind of exceptional circumstances that would allow a claim non-compliant with s. 42(5) to proceed. It is not uncommon for an impairment to be initially assessed as a minor injury and later found to exceed the definition of that term. A person's condition may deteriorate. New medical information may come to light. If the legislature had intended for insured persons to become retroactively entitled to attendant care after a Minor Injury Guideline redetermination, the Schedule would have provided for this.
15To conclude, the applicant initiated the process of claiming attendant care benefits as soon as those benefits became available to her under the Schedule. The applicant has not established circumstances that would justify a claim for expenses incurred before her submission of a Form 1. Section 42(5) bars the applicant from claiming attendant care before October 31, 2019.
The applicant is entitled to attendant care expenses incurred after submitting a Form 1
16The applicant claims attendant care benefits in the amount of $7,644.34 monthly from the date of the accident and ongoing. The claimed amount is based on the Form 1 completed by occupational therapist Samantha Maas-Crowell on October 17, 2019. However, in the applicant's hearing submissions, the applicant significantly narrows the scope of her claim, seeking payment only for her incurred expenses, namely $220.32 per month for a total of "over $7,000.00 worth of attendant care services". This is slightly less than the $225.75 per month approved by the respondent based on its Form 1, completed on December 10, 2019 by occupational therapist Lisa Slapinski.
17As the applicant has confined her claim to the amount approved by the respondent, I find it unnecessary to consider whether I prefer the assessment of Ms. Maas-Crowell or Ms. Slapinski on the extent of the applicant's attendant care needs, or whether the applicant is entitled to a quantum of benefits greater than the amount approved by the respondent.
Has the applicant proven that she incurred attendant care expenses?
18Section 3(7)(e) provides that a person has "incurred" an attendant care expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.
19The definition of "incurred" in s. 3(7)(e) sets out two categories of attendant care providers:
a. professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and
b. non-professional service providers.
20The applicant received care from Ms. Caroline Kariuki, a friend and personal support worker. Despite their friendship, I find that Ms. Kariuki qualifies as a professional service provider who provided the applicant with services in the course of a profession in which she would ordinarily have been engaged but for the applicant. Though both parties reference economic loss in their submissions, there is no requirement for professional service providers to have sustained an economic loss as a result of providing attendant care. That requirement applies only to non-professional care providers.
21To establish that she incurred attendant care expenses, the applicant has provided the following documents:
a. a letter from Ms. Kariuki dated November 9, 2020 describing care she has provided to the applicant;
b. records of e-transfers from the applicant to Ms. Kariuki dated January 26, 2021 and February 23, 2021; and
c. time sheets documenting services received in November 2020, December 2020, January 2021, and February 2021.
22The records tendered by the applicant establish that she received 33 hours of attendant care services between November 2020 and February 2021. The letter from Ms. Kariuki is of little assistance in establishing the amount of attendant care provided, as it does not specify the dates or duration of Ms. Kariuki's visits. The letter does not enable me to determine how much care the applicant received.
23The time sheets, however, establish that the applicant received a total of 33 hours of attendant care: 12 hours in November 2020; 9 hours in December 2020; 3 hours in January 2021; and 9 hours in February 2021.
24The applicant submits that she did not maintain detailed records of all services she incurred because the respondent did not advise her of the requirement to do so. She submits that it was reasonable for her to assume that the respondent would pay the amount approved for attendant care. However, the respondent's correspondence to the applicant dated December 23, 2019 states:
Where the attendant care services are provided by a professional care provider for compensation, the insurer will pay the lesser of the Form 1 amount or the actual expenses incurred.
25I find that the respondent clearly communicated that it would pay incurred expenses only and would not cover expenses exceeding the Form 1 amount. The onus is on the applicant to establish that she incurred attendant care expenses.
26The applicant claims expenses at a rate of $18.36 per hour, an amount exceeding the prescribed maximum for the type of attendant care she received. The respondent's Form 1 amount is consistent with the maximum hourly fee for attendant care services as set out in the Attendant Care Hourly Rate Guideline (Superintendent's Guideline No. 03/17). The maximum rate is $14.00 per hour for "Level 2 Attendant Care" (basic supervisory functions). The attendant care approved in the respondent's Form 1 is Level 2 attendant care and is payable at the $14.00 hourly rate.
27The respondent submits that the nature of the care provided by Ms. Kariuki is not consistent with the type of care recommended by Ms. Slapinski. It submits that the expenses the applicant claims are not reasonable and necessary, because the applicant was independent in her personal care tasks and able to work as a personal support worker, though on modified duties, during the period in dispute. The respondent relies on surveillance which, it submits, shows the applicant functioning well physically. The applicant further submits that any physical impairment the applicant may have been suffering from at the time she says she incurred attendant care expenses was as a result of a series of workplace injuries, not the accident.
28I disagree with the respondent. Ms. Slapinski's Form 1 recommended that the applicant receive assistance in the form of emotional support to assist her with coping. She recommended this type of care to prevent the applicant from sliding further into social isolation. In Ms. Slapinski's opinion, this type of assistance (in addition to help with changing bed linens) would help combat severe depression and fatigue symptoms. In Ms. Slapinski's opinion, the psychosocial barriers the applicant faced as a result of the accident were a significant barrier to her recovery. In Ms. Slapinski's Form 1, this type of care is listed as "ensures comfort, safety, and security in this environment". The applicant's need is assessed at 30 minutes per day.
29The respondent has not satisfied me that the care provided by Ms. Kariuki, (including cooking, grooming, general cleaning, post-surgery care, and showering) cannot be considered as emotional support or ensuring the applicant's comfort, safety, and security in her environment. I accept the applicant's submission that the presence of her friend on its own, regardless of the type of tangible aid she was providing, amount to emotional support of the kind recommended by Ms. Salpinski.
30Because the bulk of the care recommended by Ms. Slapinski (210 out of a total 225 recommended minutes) targeted the applicant's psychosocial functioning, the respondent's submissions about the causation of the applicant's physical impairments are irrelevant to the analysis. The respondent does not contest the applicant's claim for assistance in changing bedlinens. It takes issue with the other types of care claimed. To the extent that the applicant has documented the expenses she incurred, I find that the services she received from Ms. Kariuki align with the recommendations of Ms. Slapinski in the Form 1 dated December 23, 2019. These expenses are payable.
31To conclude, the applicant is entitled to be reimbursed for 33 hours of attendant care expenses, payable at a rate of $14.00 per hour for a total of $462.00 with interest calculated in accordance with s. 51 of the Schedule.
Should the Tribunal deem the applicant's attendant care expenses incurred?
32The applicant submits that if the Tribunal determines she has failed to prove any of her expenses incurred, it should find the expenses deemed incurred under s. 3(8) of the Schedule. Section 3(8) authorizes the Tribunal to deem an expense incurred if the expense was not incurred due to the unreasonable withholding or delayed payment of a benefit.
33The applicant has not established circumstances that would justify deeming her attendant care expenses incurred. I see no evidence of unreasonably withheld or delayed benefits. As I have found, s. 43(5) of the Schedule operates to bar any attendant care claimed by the applicant before October 31, 2019. Between November 2019 and November 2020, the applicant did not make records capable of supporting a claim for attendant care. The November 9, 2020 letter from Ms. Kariuki provides no specifics as to the amount of care services provided in the year prior. There are no time sheets from this period. It is the applicant's obligation to establish incurred expenses, an obligation noted by the respondent in its December 23, 2019 correspondence to the applicant approving attendant care.
34To conclude, the respondent did not unreasonably withhold or delay the payment of benefits to the applicant. There is no evidence that would enable the Tribunal to deem her attendant care expenses incurred.
CONCLUSION AND ORDER
35The applicant has established entitlement to attendant care benefits payable at a rate of $14.00 per hour for a total of 33 hours. The respondent shall pay the applicant $462.00 with interest calculated in accordance with s. 51 of the Schedule.
Released: April 19, 2022
__________________________
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10, as amended.
- FSCO A12-006633, May 21, 2014.
- See, for example, 18-000790 v Jevco Insurance Company, 2019 CanLII 22200 (ON LAT). In that case, the Tribunal held that it was impractical for a catastrophically impaired applicant who required constant supervision to submit a Form 1 before incurring attendant care expenses. The Tribunal found that the applicant's involvement in a prolonged coverage dispute over tort liability increased the emotional and financial toll of commencing a second dispute over accident benefits, preventing her from initiating a claim for attendant care.
- 16-000372 v Unica Insurance Inc., 2017 CanLII 15835 (ON LAT) at para. 39; S.M. v Wawanesa Mutual Insurance Company, 2020 CanLII 80285 (ON LAT) at para. 12.