[K.G.] v. Motor Vehicle Accident Claims Fund (MVACF), 2022 CanLII 70516

Citation: [K.G.] v. Motor Vehicle Accident Claims Fund (MVACF), 2022 ONLAT 20-003724/AABS

Licence Appeal Tribunal File Number: 20-003724/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:

[K. G.]

Applicant

And

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice-Chair

APPEARANCES:

For the Applicant:

Brian Smith and Doug Wallace, Counsel

For the Respondent:

Jenn Chapman and Jennifer Mitchell, Counsel

Court Reporter:

Carly Kocins, MDM Reporting

HEARD:

By Videoconference on December 6-10, 13 and 15, 2021 and Closing Submissions completed February 4, 2022

BACKGROUND

1The applicant (“K.G.”) suffered a brain injury in a June 12, 1999 automobile accident. The respondent (“MVACF”) accepted K.G. as catastrophically impaired and provided him insurance benefits under the Schedule then in effect.¹ After a hospital stay, MVACF paid K.G. an Attendant Care Benefit (“ACB”) of $5,575.31 per month. As K.G.’s rehabilitation evolved, based on a series of reassessments, MVACF reduced his ACB to $120.40 a month and in November 2000 placed the ACB “on hold” pending a reassessment as he began new living arrangements. MVACF never provided notice of any change, the re-assessment never occurred, and the payment never resumed. With the error just caught in 2018, MVACF recently paid the $120.40 rate from November 2000 to date, with interest.

2K.G. now claims past and present ACB at 24-hour care levels based either on the original Form 1 or a recent “retroactive” Form 1, together with an award and interest, and a higher rate of interest and award for the recently paid past ACB. I find that 24-hour ACB is unnecessary and the $120.40 rate appropriate, except for specific periods of time and order the higher interest rate and an award.

ISSUES

3The parties agree I must address past and current ACBs, but they provide different articulations of the issues. The September 28, 2020 Case Conference Order, as amended by July 22 and November 22, 2021 Orders, provides:

1. Is K.G. entitled to attendant care benefits of $5,575.31 per month from October 8, 1999² to March 8, 2019?

2. Is K.G. entitled to attendant care benefits in the amount of $4,984.44 per month from December 1, 2020³ to present?

3. Is MVACF liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to K.G.?

4. Is K.G. entitled to interest on any overdue payment of benefits?

4At the hearing, the parties agreed that MVACF’s listing of issues in its December 6, 2021 Submissions to Request Additional Hearing Days was correct. It listed “Current Attendant Care entitlement”, interest and an award, and:

1. Did MVACF reduce the monthly ACB contrary to section 39 of O.Reg. 403/96?

2. Is K.G. entitled to retroactive ACB (a) of $5,575.31 per month per the Form 1 dated September 30, 1999, and/or (b) per the retroactive Form 1(s) dated February 25, 2019 [$5,461.50 to $4,948.44]?

5In other words, MVACF broke down the retroactive claim into sub-parts and that K.G. is seeking retroactive benefits based on different theories. Still, reference to the February 25, 2019 Form 1s creates confusion as those Form 1s seek ACB from the date of the accident, in contrast to the Tribunal’s listing that starts from K.G.’s hospital release. In fact, in closing submissions, K.G. seeks the maximum ACB rate from the date of the accident, not just his release from the hospital. MVACF objected believing the claim was from the release from the hospital.

6Given the Tribunal’s orders are the jurisdictional listing, and MVACF’s listing was simply an aid to the Tribunal, I find the issues before me start with the release from the hospital. Nevertheless, I have addressed the earlier period below.

ResULT

7The $120.40 rate from November 2000 to date and ongoing is correct, except for two periods during which K.G. is entitled to an increased ACB of $451.50 a month, or ‘top-up’ of $331.10 beyond the $120.40 recently paid, per month for 6 months following his moves to: (1) Orillia in December 2003; and (2) his house in December 2004, plus interest at the 2% rate under s. 46(2) of the 1996 Schedule running from those periods. K.G. is entitled to an award of 10% on the $120.40 recently paid and $331.10, with interest.

8With regard to the recently paid ACB of $120.40 per month from October 2000 to the present, K.G. is entitled to interest at the 2% rate under s. 46(2) of the 1996 Schedule. The insurer shall be entitled to a credit for the interest it paid.

BACKGROUND

9While there are inherent difficulties in examining events 20 years ago, I find the parties reasonably recreated those events through testimony of family members involved throughout, presentation of older contemporaneous documents from treatment records to adjuster notes, testimony of several key individuals involved in 1999-2001 including assessors and adjusters, and current treatment providers, assessors and the adjuster.

10In terms of the timeline, on June 12, 1999, K.G. struck his head when falling from the back of pick-up truck. He was taken to a hospital unconscious but ultimately had a remarkable but not complete recovery. After four-months of hospitalization and in-patient rehab, he was released home on October 8, 1999. In preparation, the rehab facility, i.e., [The Hospital], prepared a Form 1 dated September 30, 1999 recommending an ACB at $5,575.31 a month.⁴ He then received ACB from professional PSWs and his family, and also comprehensive care from a team ranging from medical providers to social workers.

11Over the next year as K.G.’s condition improved, occupational therapist (OT) Lorrinda Mabee re-assessed him issuing Form 1s dated December 7, 1999 ($3,815.30), March 7, 2000 ($1,374.20), and August 15, 2000 ($120.40), each reducing the monthly ACB. Ms. Mabee consulted with K.G.’s family and treatment team and treating O.T. during her assessments.

12The evidence established that MVACF put the November 15, 2000 payment “on hold” pending a reassessment, given K.G. new living arrangements, while K.G. characterizes it as a stoppage. Although on hold, Ms. Mabee never completed a subsequent Form 1, and instead, issued a discharge note on October 29, 2001 recommending no change to the August 15, 2000 Form 1. That discharge note was largely based on a January 8, 2001 treatment team meeting, where the treating OT, Ms. Robinson, reported that she would address vocational issues and that the August 15, 2000 Form 1 was accurate.

13K.G. moved to his own apartment in March of 2001 for a year, and then moved with this family to Orillia in December of 2003. With his family’s assistance and tort settlement, in December 2004 he bought a house. While living on his own, he did have several noteworthy, but relatively minor, safety incidences.⁵

14Generally, from 2002 to 2018, except for a few requests for insurer examinations (IEs) and issues with the payment of income replacement benefit (IRB) checks which continue to the present, the claim was dormant.⁶ Around 2018, K.G.’s counsel retired and new counsel noticed that no statutory notice had been provided stopping the ACB payments. He arranged for the February 25, 2019 retroactive/retrospective and current Form 1s.⁷ MVACF’s responsive IE Form 1 was completed on July 7, 2020.

15In terms of K.G.’s overall condition, Dr. Italiano, K.G.’s family doctor since 2004, summed up that this was a tragic event where K.G. suffered a permanent brain injury effecting his cognition, and there is no magical pill or place to send him to get better. While he thought K.G. was relatively independent albeit with reliance on his mother and did not need 24-hour care, he was clear that K.G. is never going to work again and his days have and will follow a simple routine. Dr. Fogarty, a neuropsychologist, similarly described that K.G. has orbital frontal lobe damage, causing mental executive function problems. For example, K.G. could get flustered if the phone rings when watching T.V. While Dr. Fogarty’s exam was for an IRB and she does not treat brain injured patients, she did not recommend 24-hour care and noted K.G. is functioning “reasonably well in his own home, which is a generally structured and predictable environment” but that he needs the regular support from his mother.⁸ Various psychological/psychiatric testing, such as by Dr. Maryniak, Dr. Harnadek and Dr. Ornstein, produced similar results.

16Stated differently, both K.G.’s current treatment team and MVACF’s assessor, Jessica Oh, OT, agree that while K.G. can physically live on his own and do daily living tasks, he needs routine and structure, and is not able to fully manage his affairs. Practically, K.G.’s daily routine involves "puttering around the house" (Ms. Oh’s words) and walking outings in his immediate neighborhood to Tim Horton’s and grocery shopping. He has shown some ability to respond to unexpected events, but all agree K.G. is limited in this regard.

17On a deeper level, K.G. needs at least some ongoing guidance and supervision. Since November of 2000, this has mostly come from his family and particularly his mother, Verna Tambling, who is also his Power of Attorney (“POA”). For quite some time, the ongoing guidance and supervision has been in the form of daily check-in calls to his mother, which help keep him on his routine.

18While the parties disagree if ACB at the $120.40 rate was and is enough, the evidence points to K.G. having generally received guidance from his family roughly corresponding to that rate.

ANALYSIS

19Section 16(2) of the 1999 Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for “services provided by an aide or attendant” or “services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.” Section 16(4) Schedule provides that the amount payable shall be determined using a document called a “Form 1”.

20K.G. seeks the maximum ACB from the date of the accident as a matter of law based on how the improper denial is addressed under the Schedule, or alternatively, based on his February 25, 2019 retroactive Form 1 assessments of his past and current needs. The 2019 Form 1s provide monthly rates (1) during the hospital stay of $5,461.50 from July 2, 1999 to July 21, 1999 and $5,164.67 from July 22, 1999 to October 1999, and (2) after the hospital stay of $5,004.06 from October 8, 1999 to March 2000, $4,985.47 from March 2000 to December 2004, and $4,948.44 from December 2004 to present and ongoing.⁹

Did MVACF reduce the ACB contrary to s. 39 of O. Reg. 403/96? If so, is K.G. entitled to ACB at $5,575.31 per month per the September 1999 Form 1?

21K.G. asserted several alternate approaches to why he is entitled to retroactive or retrospective ACBs. K.G.’s first approach is that regardless of the substantive accuracy of his recent retroactive Form 1, because MVACF “…stopped paying the ACB entirely in November 2000 without notice, explanation, and without scheduling a DAC [designated assessment centre] assessment,” it violated the procedure established by s. 39(4), which required MVACF to schedule a DAC assessment, and to pay the ACB pending the DAC results, and be bound by the DAC’s conclusion. In other words, K.G. argues that under s. 39(4) Schedule‘s procedure, the stoppage was MVACF’s determination that K.G. “is not longer entitled to receive” an ACB, and thus MVACF was required to schedule an DAC assessment, and under s. 39(6), until that happened, MVACF must reinstate the first Form 1 amount of $5,575.31.¹⁰

22K.G. relies on the Michalski¹¹ decision which provides that “an insurer is also obligated to arrange attendant care DACs whenever it wishes to reduce the amount of attendant care, and whenever a claimant seeks an increase in the amount of attendant care. The insurer is obliged to continue to pay attendant care at the existing rate, pending receipt of the DAC report.”¹²

23As a threshold point, I accept MVACF’s submission that its intention was only to temporarily place the benefit on hold pending a reassessment, rather than to permanently stop or reduce the benefit, and that the ensuing extended suspension was a mistake. As Ms. Kogut testified, this was a paper file. That conclusion was supported by the testimony of MVACF’s witnesses and the fact that the MVACF never sent out a notice of reduction or stoppage, and Ms. Mabee’s last recommendation was continuing the $120.40 monthly rate. MVACF never determined that K.G. is no longer entitled to the ACB.

24Thus, while I do find it proper to review the ACB because there never was a notice as discussed below, I disagree with K.G.’s submission that as an automatic function of the Schedule the amount of ACB is $5,575.31 for several reasons. First, K.G. is basing his arguments on an amended version of s. 39 that was not in force at the time. The version of s. 39 that was in force (Bill 59),¹³ reads in relevant part:

39 (4) If the insurer determines that an insured person is not entitled or is no longer entitled to receive an attendant care benefit, the insurer shall require the person to be assessed in accordance with section 43 and shall give the person notice of its determination and the requirement for the assessment, with reasons, …

(6) If an assessment is required under subsection (4), the insurer shall pay the insured person the attendant care benefit pending receipt of the report of the designated assessment centre. (Emphasis added)

25The section does not read that a DAC is required for reducing benefits, while other sections of that version do specifically mention reducing benefits, such as s. 49 that provides a notice must be sent when “an insurer refuses to pay a benefit…or reduces the amount.” The requirement of a DAC assessment for reduced benefits was later added with Bill 198 which provides, “39(7) If the insured person is receiving an attendant care benefit and the insurer determines that the person is no longer entitled to receive the benefit or that the amount of the benefit should be reduced.” (Emphasis added)

26Second, even if the suspension was a termination and MVACF was required to pay the ACB pending the DAC, it appears that the last ACB rate would apply, as section 39(6) only refers to “the attending care benefit” but does not say the initial one. The reasoning would comport with caselaw that provides an applicant must still establish entitlement to a benefit. MVACF submits that failure to provide proper notice does not automatically entitle K.G. to ACBs at the previous Form 1 amount. It would only potentially prevent him from being statute barred from disputing the ACB reduction. Breaches of the Schedule by an insurer do not entitle an applicant to ACBs. K.G. still needs to establish a substantive right to the ACB claimed. As MVACF submits, the best evidence does not support entitlement to ACBs in the amounts claimed.¹⁴

27Third, K.G. argues that had MVACF followed proper procedure and provided notice of the reduction or stoppage, he could have accessed his rights, but since MVACF did not follow proper procedure, he should receive the maximum amounts. However, K.G. did avail himself of the dispute process including filing an Application for Mediation dated December 3, 1999. That Application defines the dispute as MVACF falling to pay the Form 1 amount of $4,575.31, and an attachment defines the dispute of entitlement of $6,000 per month and then no monies paid for the months of December 1999 to February 7, 1999, “despite an Assessment dated December 7, 1999.”¹⁵ Thus, he raises the same arguments he asserts now, as he did almost 20 years ago.

28Moreover, a May 23, 2000 Report of Mediator lists the dispute as K.G. claimed a recalculation of ACB paid from October 1999 to March 2000, and then records an agreement between MVACF and K.G. of amounts to be paid specifically referencing the $5,573.31 and $3,815.00 amounts, with outstanding funds due under the $3,815 rate for March 1-7, 2000. March 1-7, 2000 coincides with the end of $3,815 period, as the $1,374.20 assessment occurred on March 7, 2000.¹⁶ A month later, K.G.’s counsel’s June 22, 2000 letter confirms that “all outstanding [ACB] amounts up to March 2000 have been paid as a result of the mediation with only $43.82 outstanding.”¹⁷

29Thus, K.G. current counsel is taking a position at odds with an explicit agreement of K.G.’s prior counsel made 20 years earlier. At a minimum, K.G.’s specific acceptance of the $3,815.00 rate during the formal dispute resolution process, precludes any argument that he’s entitled to a look back rate of $5,573.31, given he specifically accepted a different rate during the dispute process. The timing of that agreement also occurred months after the March 7, 2000 rate of $1,374.20, thus further casting doubt on K.G.’s current argument.

30Fourth, the voluminous records and testimony point to the ACB reductions made in consultation with K.G.’s treating OT, his parents, and his treatment team – and as part of a goal to get him to be independent. While MVACF made an error in suspending the payment under the last Form 1, the request that the $5,573.31 rate should be reinstated is at odds with the parties’ dealings at the time.

31All told, K.G. is not entitled to the $5,573.31 rate from the time of the accident as an automatic function of s.39 of Schedule.

Is K.G. entitled to retroactive ACB to date and ongoing based on the February 25, 2019 Form 1(s)?

32K.G. submits, alternatively, that his past and current ACB needs are as set-forth in his February 25, 2019 retroactive Form 1 assessment, which as noted above generally recommends 24-hour care.

33MVACF submits that the Tribunal lacks jurisdiction to award a retroactive ACB, citing caselaw has held that a retroactive Form 1 is possible, but it is “not an unqualified right” and is only awarded where the applicant can demonstrate “urgency and/or impossibility or impracticability of compliance with the requirements of the Schedule,” or if the applicant has a reasonable excuse.¹⁸ MVACF concludes that K.G. provided no such evidence and Ms. Tambling, his mother, testified that if she had an issue with the amount of the ACB being paid, she would contact Mr. Osterberg, her counsel. Ms. Tambling also testified that she did contact him once the payments stopped, but nothing happened.

34I disagree with MVACF’s conclusion for two reasons. First, because MVACF failed to comply with sections 45 and 49 of the 1996 Schedule when it suspended the benefit without notice in November 2000, there is no limitation argument, and second, the lack of statutory notice informing K.G. of his rights, coupled with an indefinite suspension, is a reasonable excuse for him not seeking benefits after the November 2000 suspension. This isn’t a situation where a person was receiving ongoing benefits and tacitly accepted a rate, but then seeks a different rate retroactively with no explanation for the delay. Second, if I were to hold that the lack of statutory notice combined with the circumstances is not a reasonable excuse, then that would be tantamount to holding that MVACF does not need to comply with the notice requirement. Thus, as for periods after the “suspension”, I agree with K.G. that given “the absence of a limitation argument, this Tribunal may award the monthly amount for the attendant care needs demonstrated by the evidence.”¹⁹

35Nevertheless, I will not consider ACB to earliest date retroactive Form 1, i.e., the July 2, 1999 for several reasons. First, as mentioned above, case conference and motions orders limited the look-back date to October 8, 1999. Second, K.G. counsel’s agreement during the 2000 mediation, accepted all amounts are paid as of March 2000, and thus that is binding, and which also prevents a claim that there is a reasonable excuse to bring this claim 20 years later. Third, from a factual point of view, the evidence was overwhelming in support of rates that were assessed and paid. To me, the question is the correct rates after the benefit was improperly placed “on hold.”

What ACB is K.G. entitled to from November 2000 to date and ongoing per the retroactive Form 1(s) dated February 25, 2019?

36Except for a limited exception as more-fully set forth below, in terms of the past the ACB amounts appear to be reasonable. The retroactive Form 1 appears to be an exercise in second-guessing given that there was counsel and a POA involved at the time, who were in consultation with the treatment team. It is possible to say that K.G. always needed 24-hour care, but I find the evidence clearly supports the opposite conclusion – K.G., his family and treatment team all wanted to get him into independent living. I find K.G. needs are generally – with exceptions noted below – in-line with Jessica Oh’s July 2020 IE Form 1, which found 24-hour care was not necessary, and that the past ACB was assessed and paid correctly. Ms. Oh’s Form 1 proports to recommend a modest increase to $180.60 per month, but it contains a calculation error. Based on the services recommended, it calculates to $108.36 per month. I do not however see a reason for that minor decrease from the $120.40 rate.

a. The retroactive Form 1 is not persuasive.

37As a starting point, I do not find the February 25, 2019 retroactive Form 1 persuasive for a number of reasons and I give it little weight. First, and perhaps least important, the report was authored by a relatively new occupational therapist, who had not conducted a retroactive assessment for any version of Schedule and appeared to have little to no experience with the Schedule that applied at that time. For instance, the actual Form 1 was not on the correct form. To be clear, while I disagree with the Form 1 assessment, this OT’s recent treatment of K.G. appears to have been very effective.

38Second, the report’s process contained obvious flaws. The documents reviewed - a handful of reports - was scant especially given the nearly 20-year history involved and detailed records available – and of those reports reviewed, they pre-dated important events. For instance, while Dr. Harnadek’s June 24, 2000 report does summarize some medical history, the assessor admitted relying on this report for history does not comply with her college’s best practices, and K.G. made tremendous gains after that report. Furthermore, I found a series of progress reports from psychosocial rehabilitation counsellor Ike Lindenburger from December 29, 2000 to January 12, 2002²⁰ illustrative of K.G.’s functional improvement noting in earlier reports that K.G.’s judgment “remains quite questionable,” but by January 12, 2002, he notes that “It is safe to say that, at present, [K.G.] is managing well independently albeit his routine is very simple and highly predictable and routinized.” At that point, MVACF had been paying K.G.’s rent, as a treatment goal was for him to live independently.

39Similarly, its odd that only the treating OT’s November 19, 1999 Initial Assessment Report was reviewed, when 13 months later that same OT was was supportive of the $120.40 rate continuing. By providing the ACB assessor such limited documentation, the report reflects an incomplete and unrepresentative sample. As discussed below, the treatment goal at the time was to return K.G. to independently living as much as possible.

40The report also makes clear that its other main source of information was K.G.’s mother. Certainly, she should be consulted as, undoubtably, Ms. Tambling has been an incredibly key asset to K.G.’s life story and well being. Yet, the report’s spin on events struck me as somewhat inconsistent with the perspective I heard from Ms. Tambling during her testimony and how records from 1999-2002 reflect Ms. Tambling’s position. In the reports and testimony, Ms. Tambling generally supported a goal of K.G. being independent and not under 24/7 care.

41I also note the report mentions that on March 1, 2000, K.G. moved out his mother’s house to his own apartment, but that occurred a year later in March 2001. For instance, Ms. Mabee’s August 23, 2000 report shows that the move did not yet occur. The report places the move to Orillia in March 2001, but it was December of 2003.

42Finally, I do not accept the underlying premise of the assessment. Basically, the assessor appears to take the position that 24-hour care was needed based on the gravity of the initial medical report – not on K.G.’s actual recovery in the year or two following the accident, and because K.G. had risk factors. Interestingly, the Form 1 from December 2004 to date allocates all time to supervisory care in case of an emergency, and none for the services K.G. needs as identified in her interview with K.G.’s mother and Ms. Mabee’s forms. The assessor’s support of 24/7 care was largely capsulized in her statement, supervision is necessary because, "you never know". In other words, although K.G. has not had major issue, or even a noteworthy issue such as a fall in 7 to 12 years (there are various accounts of when these incidents occurred), the assessor took the position that if something came up K.G. would not know what to do. Overall, the conclusion and report struck me as a review prepared for legal purposes, but not for treatment care.

b. Testimony of his family and service providers did not support 24/7 care

43K.G.’s mother and sister provided strikingly similar perspectives, which I accept. While before the accident K.G. was an active, capable and social person, the accident left him a shell of himself. Essentially, because of memory and cognitive problems, in a literal sense he is able to live on his own and take care of his basic needs, but the reality is he needs a significant amount of guidance and regular check-ins which were all colloquially referred to as coaching.

44As result of intense therapy in the years following the accident, K.G. learned to do many basic functions and needs to follow a fairly strict routine daily basis. As long as he does so, he seems to do fine, but when something unusual happens, K.G. cannot be counted on to make proper decisions. For instance, on one occasion, he fell down the stairs and suffered a broken nose but did not think to go to the hospital or even call his mother to report the incident. In a more benign example, though prompted many times by his sister to take out the garbage at his mother's house when she was in the hospital, he did not do so.

45When both K.G.’s mother and sister were asked about his ability to live alone and the type of supervision he needed, both generally agreed that he does okay on his own, implying that he does not need 24-hour supervision, but there must be systems in place for him to be checked upon.

46Past records support their current beliefs. For instance, adjuster Diane Munday’s March 21, 2000 report records K.G.’s parents stating that K.G. is independent and oriented in his local neighborhood and able to travel independently by foot, and they have no concerns with him being unsupervised in the morning and day. Ms. Munday’s October 16, 2000 report records the family provides structure for various tasks but is no longer concerned with K.G. requiring supervision due to unpredictable behavior.²¹ Ms. Mabee’s December 13, 1999 report for the December 7, 1999 Form 1 makes several mentions of attempting periods without supervision as a therapeutic goal.²² Similarly, Ms. Mabee’s Form 1s in 1999 and 2000 were all completed with K.G’s. mother, and stepfather present, and in consultation with his treating Speech and Language Pathologist and OT.

47Dr. Italiano, K.G.’s family doctor, acknowledged concerns about K.G. venturing past his home but thinks K.G. does not want someone around all the time in his home as he would lose his dignity.

c. The IE did not support 24-hour Care

48Jessica Oh, MVACF ACB assessor, has been an OT since 2003 and performed hundreds, if not thousands, of assessments, including many retroactive assessments and some under the 1996 Schedule, including the Bill 59 version. Except as noted below, I accept her testimony and Form 1.

49Ms. Oh performed one regular assessment and then a second assessment to review surveillance with K.G. and his mother. The surveillance revealed K.G. reasonably navigating the neighborhood. Her assessment revealed memory issues when K.G. could not give an example of when he solved a problem, but when K.G. had mental cues walking around the house, he provided examples.

50Ms. Oh agrees that K.G. needs routine and structure to function, and his calls to his mom are key for him. She opined he needed and needs daily check-ins, and perhaps some ACB on an intermittent basis.She described the 30 minutes a day is for the check in, no time is allowed it for supervisory care in the community, and 10 minutes a week is allowed for financial supervision. She felt the past Form 1s were appropriate. While I agreed with her general approach, I disagree with her recommendation of reducing financial supervision from 30 to 10 minutes a week, as 10 minutes barely covers writing a check.

51Ms. Oh’s testimony brought out an underlying issue. K.G.’s submission is focused on 24/7 care for absolute safety and to artificially return him to a pre-accident state. However, Ms. Oh felt 24/7 care was not indicated. While the goal is to return K.G. to his pre-accident function, yet with his permanent cognitive changes his baseline is now different. K.G.’s safety incidents occurred in the past, were mitigated and he has shown some ability to respond to safety issues, such as when his basement flooded. Ms. Oh also relied on the United Nations Convention of the Rights of Persons with Disabilities, which provides that 24/7 care is not independence and as well she thinks K.G. does not want 24/7 care.

52K.G. brought up a few points that weaken Ms. Oh’s report, but only to a degree. For instance, she did not consult with the current treatment team or was aware that K.G. was receiving OT treatment, and any reliance on K.G.’s Examination Under Oath is misplaced as K.G. overstates his activities. While the report considers the opinion of Dr. Rashid, a neuropsychologist, it does so as a dissenting opinion. Ms. Oh did not cook a meal with Kevin and was not aware that he only cooks simple meals. Despite those short comings, her report shows a thorough medical review and accurately describes K.G.’s severe brain injury and functional limitations.

d. K.G.’s current treatment team does not clearly support 24-hour care

53K.G. also called his current treating OT, Talia Herztein, who took over in January 2021 when the prior OT went on maternity leave. Based on her regular sessions with K.G., short of a formal assessment, Ms. Herztein’s perspective was K.G. needs check-ins, not necessarily somebody following him around, but that someone is available 24 hours. She's working on teaching him to take the bus. Generally he does okay, but he needs lots of practice and is not too great on community safety. In terms of cooking, K.G. needs lots of cues, he does not always follow a recipe well and gets easily distracted. When asked if K.G. could put out a small fire on the stove or in the oven, she hesitantly explained he probably could, but isn't sure he would know to call 911 or even tell anybody.

54While K.G. cites various cases of 24/7 care, I find them distinguishable as they are fact specific. K.G. is generally more functional then in those cases and the goal was and is for him to reach independent living.

55In summation, while the evidence is overwhelming that K.G. would not act as effectively as others in stressful situations – indeed he might respond poorly – I don't see K.G.’s situation translates into a need for 24-hour care especially as he has been able to live on his own fairly successfully for many years and his family testified that's what he needs. K.G. needs a system in place similar to what his family has provided for him – i.e., regular check ins but, with one exception below.

56While I found the $120.40 ACB rate has generally been appropriate, the testimony was clear that K.G.’s need for ACB care would have increased for those three periods of time when his living arrangements changed. For instance, Ms. Mabee’s August 23, 2000 Report identified that changing to an independent living arrangement would require further ACB care, such as planning activities and meal schedules.²³ Ms. Oh testified that the March 2001 move to his apartment would have required a reassessment and she estimates he would have needed someone to check on him more frequently than once a day, such as in the morning, afternoon, and evening. While not a medical provider, ClaimsPro supervisor Lilya Kogut also acknowledged that an increase in ACB is necessary for a brain injured person when their living arrangements change.

57The very difficult task is setting the appropriate amount and duration of ACB for such periods without contemporaneous assessments.

58For the move to his apartment in 2001, I find the robust rehabilitation team working with K.G. on that transition obviated the need for duplicative ACB, but it does provide some insight into what was needed for his moves to Orillia in 2002 and then move into his own house in 2004.

59For instance, Ms. Munday’s March 28, 2001 report comments that the Bartimaeus Group was working with K.G. on his independent living, and that K.G. parents were assisting with his move to a new apartment, including supervision and guidance. The report also noted that because he is residing on his own, the adjuster was not requesting ACB for that month but rather sought reassessment.

60Ms. Munday’s August 16, 2001 report indicates Mr. Lindenburger felt K.G. was doing quite well independently, and questioned the need for Bartimaeus to provide ACB services, since K.G.’s mother provided support as well. Ms. Munday’s December 4, 2001 report notes “we have learned that K.G.’s mother continues to visit her son every two days and calls him several times [a day]”, and assists in managing his money, and that it may be appropriate for Linda Mabee to address current ACB being provided by K.G.’s mother, and that Ms. Robinson OT provided a discharge report and thinks the August 15, 2000 assessment is correct – but the adjuster disagrees as K.G. is in his own apartment. Ms. Munday’s January 11, 2002 report notes, per Ms. Robinson, that K.G. has adjusted well to his independent living and this mother reports no areas of concern.

61Thus, I estimate that there was an elevated level of need for 6 months after each move, with check-ins 3 times a day rather than once (30 min per check-in, 7 times a week), and sometime navigating the neighborhood (60 min, 7 times a week), and increased time for financial assistance (60 min per week). Since the time navigating the neighborhood also serves a check in, that would produce 900 minutes per week or 64.5 hours a month, producing a benefit of $451.50 a month, or ‘top-up’ of $331.10 beyond the $120.40 recently paid. That ACB amount should be paid for the two limited 6 months periods with interest, starting on the date of the move to Orillia and then for move to the new apartment in Orillia. After such period, K.G.’s ACB should return to the base rate of $120.40.

62Both this “top-up” and the base $120.40 rate are not simply a windfall. Ms. Munday’s report referenced above shows, that at least for earlier periods, MVACF was aware that the family was providing unreimbursed ACB and the evidence is clear that has been occurring to the present. Similarly, as for the move to K.G. own house, while Ms. Tambling testified that she did not arrange for a home assessment “I didn’t think he needed it”, she also added that her husband came into town every day.²⁴ In other words, K.G. clearly required extra care and he did not receive it in the form of general occupational therapy or social work or a personal support worker. I have little doubt K.G. actually did receive that care, supervision and prompting – i.e., ACB – in the form of his mother and family given the totality of the evidence.

Current Attendant Care entitlement

63In terms of the present, the current assessment, being the $120.40 rate found by the August 2000 Form 1 appears to be accurate, and its virtually the same amount of time found by Ms. Oh. Obviously, any change of circumstances – including a change in care giver – would require a new assessment. For the currently time, however, in terms of daily check-ins, K.G. condition is stable. While no treatment plans are before me, K.G.’s evidence established the O.T. treatment he is receiving is reasonable and necessary.

Award for unreasonably withheld or delayed payments pursuant to section 10 of Regulation 664, RRO 1990

64K.G. seeks an “award” under s. 10 of Regulation 664. That section permits me to “award” a lump sum of up to 50% of the amount that a person is entitled (plus interest on all amounts then owing) if I find the insurer “has unreasonably withheld or delayed payments.” It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.²⁵

65While I accept the testimony provided by several members of the adjusting team that the ‘suspension’ was intended to be temporary and with the paper file it fell though the cracks, the same witness admitted that there is no provision under the 1996 Schedule for MVACF to place a benefit on hold – and that was not a mistake. In other words, MVACF knowingly acted outside of the statutory scheme and did so without providing any notice of the suspension, and when coupled with a mistake, it resulted in a staggering delay of 20 years, which attracts an award. It also happened at a time when MVACF’s adjusters was aware K.G.’s family was providing unreimbursed ACB.

66In terms of setting the amount of the award, I find 10% to be appropriate, as the delay appears to be based on an error (albeit a lengthy one), when the error was discovered, MVACF paid the suspended amount retroactively with interest (although there is a dispute as the interest rate), K.G. was represented by counsel and an POA at all times and neither raised the issue. In terms of the advantage gained be the insurer, oddly, given the high interest rates under the 1996 Schedule, in some ways the delay worked to K.G.’s advantage and against MVACF, because the recent interest payment on the past due $120.40 ACB was many times more that the actual ACB. As for K.G.’s vulnerability, he was represented by counsel and a POA. While K.G. points to an alleged pattern of behavior citing other benefits to support a larger award, the delays in payment of IRB checks were due to computer limitations and an unrelated benefit.

Interest

67The 1996 Schedule provided that interest is payable on overdue amounts at the rate of 2% per month. Interest – even at that high rate – is considered purely compensatory and is not dependent on the good or bad faith of the insurer.²⁶ In the Federico decision²⁷, the Divisional Court settled that the 2% rate continues to be payable on amounts that become overdue after September 1, 2010, when the 2010 Schedule took effect, by virtue of the transitional provisions in the new Schedule. Subsequently, in the Sidhu decision²⁸, the Court of Appeal reached the same result that the 1996 Schedule’s interest rates apply explaining:

However, s. 2(2) of the 2010 schedule provides that interest shall be paid under that regulation in the amount determined under the previous schedule. Therefore, s. 2(2) of the new schedule changes the procedure for claiming benefits and the payment of benefits, but does not change substantive rights such as the rights to the former two per cent interest...

68Thus, the 2% rate under the 1996 Schedule applies to the benefits at issue.

ORDER

69K.G. is not entitled to any further ACB prior to the November 2000 suspension. Those rates were correct and have been paid.

70The $120.40 ACB rate, recently paid, from November 2000 to date and ongoing is correct, except for two periods during which K.G. is entitled to an increased ACB of $451.50 per month (i.e. a “top-up” of $331.10 per month over the $120.40 rate) for 6 months following his moves to: (1) Orillia in December 2003; and (2) his house in December 2004, plus interest at the 2% rate under s. 46(2) of the 1996 Schedule running from those periods.

71K.G. is entitled to an award of 10% on the $120.40 recently paid and $331.10 top-up, plus interest.

72MVAC shall be entitled to a credit for amounts and interest paid.

Released: August 2, 2022

__________________________

Jeffrey Shapiro

Vice-Chair

Footnotes

1. 1The parties agree that the Statutory Accident Benefits Schedule - Effective September 1, 2010 (O. Reg. 34/10) governs the procedural process for claims made after September 1, 2010, but substantive rights, such as the benefits available, remain governed the Schedule in effect at the time of K.G.’s accident, i.e., O.Reg. 403/96 – Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996. Unless noted, my references to the Schedule mean the “1996 Schedule”.
2. 2ACB services started with K.G.’s hospital discharge on October 8, 1999, but the Form 1 was completed a week earlier on September 30. The materials refer to both dates, but the former is correct.
3. 3The date appears to be incorrect as the $4,984.44 amount corresponds rate for the period of December 2004 to date and ongoing set out in the February 25, 2019 retroactive Form 1.
4. 4The four Form 1s from 1999 and 2000 are at Tab 6 a-d MVACF’s Document Brief. The recent Form 1s are at Tabs 6 e-f and 7. The corresponding reports appear in Tabs 13, 14 & 15.
5. 5Respondents Document Brief, Tab 14, page 13.
6. 6Some of the IE’s were unnecessary as it was fairly clear that given K.G. injuries, it is highly unlikely he will every return to gainful employment.
7. 7February 25, 2019 is the date of the accompanying report. The actual Form 1s contain various dates around that time. For example, Tab 6(F) is dated February 19, 2019 and Tab 7(A) February 27, 2019.
8. 8Dr. Fogarty, p. 50 at question 7; See also p. 11-13
9. 9In this Closing Submissions, at para. 4, K.G. claims slightly higher rates, based on a $0.15 rate increase due to 1998 amendments to the Schedule.
10. 10See Applicant’s Closing Submissions (“K.G. Submissions”) at paras. 2, 3 and 10.
11. 11Michalski (Guardian of) v. Wawanesa Mutual Insurance Co. 2005 CarswellOnt 7563 (FSCO) at para 135; See Applicant’s Brief of Authorities, Tabs 1.
12. 12Michalski v. Wawanesa, 2005 CarswellOnt 7563 (FSCO) at para 46.
13. 13A copy of the correct version is contained K.G. submissions at Schedule B, and MVACF’s Brief of Authorities at Tab 1. The amended version cited in Michalski, is Tab 2.
14. 14MVACF submissions at para. 7 citing, Chen v. State Farm Mutual Automobile Ins. Co., 2003 CarswellOnt 3746, at paras 15 – 17, and N.(T.) v. Personal Ins. Co. of Canada, 2012 CarswellOnt 10008, at para 50.
15. 15K.G.’s AB Documentation Brief, at p. 141-143.
16. 16K.G.’s AB Documentation Brief, at p. 141-143.
17. 17K.G.’s AB Documentation Brief, at p. 222-23. The letter also indicates K.G. is working part-time at Canadian Tire through a March of Dimes program.
18. 18MVACF’s Submissions at para. 8, citing, S.M. v. Wawanesa Mutual Insurance Co., 2020 CarswellOnt 15442, at para 14, and 16-000372 v. Unica Insurance Inc., 2017 CarswellOnt 4272, para 41.
19. 19See K.G. Submissions at para. 10, and also para. 3.
20. 20Applicant’s Medical Brief, p. 229-232, December 29, 2000 Progress Report by Ike Lindenburger; See also the December 29, 2000 and October 13, 2001 Progress Reports, and January 12, 2002 letter.
21. 21K.G. AB Doc. Brief, 199-200 and 250 to 259, at 256.
22. 22K.G. AB Doc. Brief, 137 to 140, such as on page 138. The Form 1 is pages 141-144.
23. 23K.G. AB Document Brief, p. 244-249, at p. 245.
24. 24Tambling Transcript, p. 89-90.
25. 25S.M. v Unica Ins. Inc., 2020 CanLII 61460 (ON LAT Reconsideration) at para. 39 (“S.M. v Unica”).
26. 26Van Galder v. Economical Mutual Ins. Co., 2016 CarswellOnt 16686 (C.A.) at paras 90-92.
27. 27State Farm Mutual Automobile Ins. Co. v. Federico (“Federico”), 2014 ONSC 109(Div. Ct.).
28. 28Sidhu v. State Farm Mutual Automobile Ins. Co., 2014 ONCA 920 at para. 9-10