Justino v. AIG Insurance Company of Canada, 2022 CanLII 53771

Citation: Justino v. Aviva General Insurance Company, 2022 ONLAT 20-005953/AABS

Licence Appeal Tribunal File Number: 20-005953/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:

Mavis Justino

Applicant

and

Aviva General Insurance Company AIG Insurance Company of Canada

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Michelle Jorge, Counsel

For the Respondent: Jason Frost, Counsel

HEARD: By way of Written Hearing

REASONS FOR AMENDED DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on April 23, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues for the Tribunal to decide are:

i. Is the applicant entitled to attendant care benefits of $1,507.98 per month from April 23, 2018 to December 12, 2019?

ii. Is the applicant entitled to attendant care benefits of $987.03 per month from December 12, 2019 to date and ongoing?

iii. Is the applicant entitled to $840.77 for physiotherapy, recommended by Physiotherapy and Rehabilitation Ltd., in a treatment plan (OCF-18), submitted on January 7, 2019, denied on January 14, 2019?

iv. Is the applicant entitled to $276.00 for gas expenses, submitted on a claim form (OCF-6) submitted on August 6, 2019, denied on August 15, 2019?

v. Is the applicant entitled to housekeeping and home maintenance benefits of $100 per week from April 23, 2018 to date and ongoing, submitted on May 24, 2018, denied on August 15, 2019?

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

LAW

3Section 3(1) of the Schedule provides definitions for various terms and phrases used in the Schedule. The term “authorized transportation expense” states, in relevant part, that unless an insured person has been deemed catastrophically impaired as a result of the accident, expenses related to transportation for services are only incurred after the first 50 kilometers of a trip. Sections 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule state that an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses.”

4Section 3(7)(c) of the Schedule defines an aid or attendant for a person to include a family member or friend who acts as the person’s aid or attendant, even if the family member or friend does not possess any special qualifications.

5Sections 14, 15 and 16 of the Schedule state that an insurer shall pay medical benefits and rehabilitation to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

6Section 19 of the Schedule states 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 an aide, attendant or long-term care facility.

7Section 19(3)4 of the Schedule states that despite section 19(3)1-3, if a person who provided attendant care services to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for payment, but for the accident, the amount of attendant care benefits shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while and as a result of providing the attendant care.

8Section 22(1)1 of the Schedule states that if an insured person sustains an impairment as a result of an accident, the insurer shall pay reasonable and necessary expenses incurred not more than 104 weeks after the accident by the following people as a result of the accident in visiting the insured during recovery: the spouse, children, grandchildren, parents, grandparents, brothers and sisters of the insured person.

9Section 23 of the Schedule states that the insurer shall pay up to $100.00 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services, if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that the insured person normally performed before the accident.

10Section 47(2) of the Schedule states that an insurer may deduct payments of a medical, rehabilitation or attendant care benefit for an expense which payment is reasonably available to the insured person under any insurance plan, law or under any other plan or law.

11Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

12The Professional Services Guideline² establishes the maximum fees for the forms and services a healthcare provider can charge to an automobile insurer.

attendant care benefits of $1,507.98 per month from April 23, 2018, to December 12, 2019

Submissions

13The applicant claimed entitlement to an attendant care benefit (‘ACB’) at $1,507.98 per month for the period of April 23, 2018, to December 12, 2019. She submitted that Rajvinder Nizran, registered nurse, prepared an Independent In-Home Assessment of Attendant Care Needs³ (Form 1).

14Mr. Nizran’s Form 1 indicates the applicant requires help with her upper body dressing/undressing, lower body dressing/undressing, grooming, feeding, meal preparation and mobility. Based on this, Mr. Nizran recommended a monthly ACB of $1,507.98 per month.

15Mr. Nizran recommended the following assistive devices for the applicant: a lumbar/cervical cushion, an orthopaedic mattress, a 24-inch grabber bar, a long-handled shoe aid, a long-handled sock aid, a long-handled scrubber and a reacher.

16The respondent did not agree that the applicant was entitled to an ACB for the disputed period because the applicant failed to demonstrate that these services were incurred. The respondent approved the applicant’s ACB up to $1,126.17 per month, subject to the incursion requirements of the Schedule.

17The respondent received the applicant’s first Expense Claim Form (‘OCF-6‘) nearly a year after the accident⁴ for attendant care services provided by the applicant’s daughter, Cecillia Magina for the period between April and September 2018.

18The respondent took issue with the form itself; it noted that the original service provider’s name was scratched out and replaced by the applicant’s daughter’s name.

19The respondent also argued that the applicant has provided no evidence that the attendant care services were provided or incurred; it noted that the Form 1 did not include information such as what services were provided, when they were provided, that the applicant’s daughter had an agreement for compensation with an hourly rate, or that the applicant’s daughter suffered an economical loss⁵ as a direct result of providing attendant care services, as required by section 19(3)4 of the Schedule.

20The respondent submitted no ACB are owing, as the applicant had not demonstrated the ACB in question had been incurred nor had the applicant effectively demonstrated economic loss for the applicant’s daughter.

Analysis

21After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not complied with section 19(3)4 of the Schedule, and therefore, no ACB is owing to the applicant. The applicant did not provide evidence regarding the economic loss of the attendant care service provider.

22The applicant carries the burden of demonstrating that the attendant care services in dispute have been incurred and received. In this case, the applicant failed to lead evidence that supported that the ACB was incurred by her.

23The applicant provided an affidavit to support her entitlement to ACB. However, I noticed that this affidavit specifies that the applicant’s older daughter Shianna, is identified as the person caring for the applicant, followed by the applicant’s other daughter, Alishia, and fails to mention Cecillia, which gives me pause.

24In the absence of persuasive, cogent evidence, I find that the applicant is not entitled to the ACB for this period.

attendant care benefits of $987.03 per month from December 12, 2019, to date and ongoing

Submissions and Evidence

25The applicant also argued that she is entitled to an ACB in the amount of $987.03 for the period of December 12, 2019, to date and ongoing.

26The applicant relied on a second Form 1⁶ prepared by Anastasia Kotolenets, registered nurse. Ms. Kotolenets submitted that the applicant needs help with lifting/carrying weights, grooming, feeding and hygiene. Ms. Kotolenets recommended many assistive devices.

27The respondent again disagreed that the applicant was entitled to the ACB for the disputed period. The respondent relied on its own section 44 assessment,⁷ which it completed in response to the applicant’s second Form 1.

28The Occupational Therapy In-Home Assessment was completed by Robert Findlay, occupational therapist, who found that the attendant care was not reasonable or necessary.

29The respondent also relied on surveillance it conducted on the applicant,⁸ which found the applicant driving without assistance or impairment, carrying a grocery basket while using her cell phone and kicking her grocery basket with her foot. The applicant was also observed leaving a grocery store with her arms full of bags.

30The respondent also relied on its previous submissions regarding the attendant care services not being incurred.

Analysis

31After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant has not shown that the ACB was reasonable and necessary.

32When weighing the competing medical evidence from the parties, I found them to both be credible.

33However, when considering that evidence with the issues of the applicant’s credibility as to who provided the attendant care services, and her reported limitations compared to the surveillance, I find that the applicant has not shown that the ACB is reasonable and necessary.

$840.77 for physiotherapy

Submissions and Evidence

34The applicant submitted a treatment plan (‘OCF-18’) in the amount of $4,673.48 for physical treatment. The respondent partially approved the treatment,⁹ in the amount of $3,832.71, with the balance of $840.77 in dispute.

35The applicant submitted that she was diagnosed¹⁰ with a right shoulder dislocation with a Hill-Sachs lesion, a displaced coracoid tip fracture, a right elbow laceration and right eight and ninth rib fractures.

36Dr. Ian Mayne, orthopaedic surgeon, saw the applicant and recommended on-going physiotherapy.¹¹

37The applicant also was seen by Dr. Vincenzo Basile, neurologist, who prepared a Neurological Evaluation Report.¹² Dr. Basile recommended that the applicant attend physical therapy, massage therapy and/or chiropractic therapy two to three times per week.

38The respondent denied that the OCF-18 in question is outstanding. The respondent did not contest the reasonableness and necessity of the OCF-18, but rather, denied the applicant’s entitlement due to technical reasons.

39It submitted that the OCF-18 was denied as the hourly rate for the treatment was in excess of the maximum hourly rate determined by the Professional Services Guideline (‘PSG’).

40In the alternative, the respondent submitted that the disputed amount of $840.77 has already been paid by the applicant’s collateral benefits carrier, Empire Life.¹³ Under section 47(2) of the Schedule, the respondent was not required to pay it.

Analysis

41After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the OCF-18 for physiotherapy is not owing.

42I based myself on the respondent’s arguments related to section 47(2) of the Schedule. The respondent provided evidence that the applicant’s collateral benefits compensated for the disputed benefits. This evidence was not refuted by the applicant, therefore, I accepted this as fact.

$276.00 for gas expenses

Submissions and Evidence

43The applicant requested payment for an OCF-6 for gasoline, a lottery ticket and two bottles of water, which totaled $276.00.

44The applicant submitted that as a result of the accident, she incurred gas expenses. The applicant submitted that her daughter, sister and friend have had to drive the applicant to doctors’ appointments or take an Uber/taxi to do so.

45The applicant relied on section 22 of the Schedule to support her argument. This section states that the insurer shall pay for reasonable expenses incurred by a person, spouse, children or grandchild of the insured.

46The respondent submitted that the disputed benefit is not payable, as there is no benefit under the Schedule to pay for such expenses. It submitted that the applicant’s interpretation of section 22 is incorrect.

47Instead, the respondent relied on section 3(1) of the schedule, which defines “authorized transportation” and limits such to trips 50 kilometers or more. The respondent also relied on sections 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule, which state that an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses.”

48As the applicant had been requested to provide evidence that she traveled at least 50 kilometers in relation to her OCF-6, the respondent requested¹⁴ that the applicant provide a list of her medical appointments with dates, locations, and return mileage. Since the applicant has failed to provide this to the respondent and the Tribunal, the respondent submitted her benefit must be denied.

Analysis

49After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the OCF-6 in dispute is not payable.

50As noted by the respondent, I agree that there is no section of the Schedule that allows for the payment of benefits for lottery tickets and bottled water.

51Though I appreciate the applicant’s interpretation of section 22 of the Schedule, I was not provided with any caselaw that supported this position, and I am not persuaded that the expenses are of the type envisioned by the Schedule. In my view and without necessarily being limiting, section 22 expenses refer to visitor’s expenses such as paid parking, meals and overnight accommodation for eligible out-of-town family and the like, in visiting the insured person.

52In terms of the applicant’s request for gas expenses, again, I found that this benefit is not payable. I find that it would be inappropriate to provide the applicant payment for her travel expenses when this benefit is clearly crystalized by section 3(1) of the Schedule under the definition of “authorized transportation expense”.

53Since the applicant failed to provide the necessary follow up information requested by the respondent to demonstrate that her travel exceeded 50 kilometers, she is not entitled to payment for such.

housekeeping and home maintenance benefits of $100 per week from April 23, 2018, to date and ongoing

Submissions and Evidence

54The applicant submitted that as a result of her injuries she sustained in the accident, the applicant is not able to manage her housekeeping tasks.

55The applicant relied on Mr. Nizran’s recommendations¹⁵ that the applicant receive 10 hours of housekeeping services per week.

56The applicant also relied on the disability certificate (‘OCF-3’) of her family doctor, Dr. Joana Goncalves. Dr. Goncalves confirmed that the applicant is substantially unable to perform her housekeeping and home maintenance services that she performed before her accident.

57The respondent submitted that the applicant had never actually submitted the housekeeping expenses in dispute, and therefore is not entitled to it. The respondent relied on letters¹⁶ sent to the applicant requesting proof that the housekeeping expenses had been incurred and submitted it never received this information.

58The respondent also submitted that not only had the applicant failed to provide evidence that the housekeeping benefit was incurred but also, that the applicant did not qualify for a housekeeping benefit. The respondent relied on section 23 of the Schedule, which states that an insurer shall pay up to $100.00 per week for reasonable and necessary additional expenses incurred by an insured person as a result of an accident for housekeeping if the insured person sustains a catastrophic impairment that results in a substantial inability to perform housekeeping services.

59In this case, the respondent submitted that as the applicant has not been deemed to be catastrophically impaired, she is not entitled to a housekeeping benefit, and her request must be dismissed.

Analysis

60After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant is not entitled to a housekeeping benefit.

61Though I appreciate that the applicant feels the benefit is reasonable and necessary, she did not provide any arguments to address the respondent’s two arguments, namely that the benefit was not incurred nor was she entitled to it, as she had not sustained a catastrophic impairment.

62The applicant did not provide law or caselaw that would sway my opinion as to her entitlement to a housekeeping benefit without catastrophic impairment, pursuant to section 23 of the Schedule. As such, she is not entitled to the benefit.

Interest

63Since there are no payable benefits in dispute, no interest is payable.

conclusion and ORDER

64The applicant is not entitled to:

a. The attendant care benefits of $1,507.98 per month from April 23, 2018 to December 12, 2019;

b. The attendant care benefits of $987.03 per month from December 12, 2019 to date and ongoing;

c. $840.77 for physiotherapy;

d. $276.00 for gas expenses;

e. $100 per week for housekeeping and home maintenance benefits, and;

f. Interest.

65The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Superintendent’s Guideline No. 03/14.
3. 3Dated May 24, 2018.
4. 4On August 6, 2018.
5. 5As seen in 16-001801 v. Aviva Insurance, 2017, CanLII 43883.
6. 6Dated December 12, 2019.
7. 7Dated August 18, 2020.
8. 8On November 26, 27, 28, 29, and December 2 and 3, 2020.
9. 9On January 11, 2019.
10. 10Based on the applicant’s Clinical Notes and Records from North York General dated April 23, 2018 to June 15, 2018.
11. 11On June 15, 2018.
12. 12Dated January 14, 2020.
13. 13Based on an Explanations of Benefits from Empire Life Insurance Company, dated August 12, 2019.
14. 14Via an Explanation of Benefits letter from the respondent, dated August 15, 2019.
15. 15Independent In-Home Assessment of Attendant Care Needs dated May 24, 2018.
16. 16Letters from Schultz Frost LLP to Jewell Radimiss Jorge LLP dated October 15, 2020, and November 11, 2020.