Carleton v. Unica Insurance Inc., 2022 CanLII 87727

Licence Appeal Tribunal

Citation: Carleton v. Unica Insurance Inc., 2022 ONLAT 20-002008/AABS

Licence Appeal Tribunal File Number: 20-002008/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:

Shay-Lee Carleton Applicant

and

Unica Insurance Inc. Respondent

DECISION [AND ORDER]

VICE-CHAIR: Sandeep Johal

APPEARANCES:

For the Applicant: Shay-Lee Carleton, Applicant Mikolaj T Grodzki and Alex Elkin, Counsel

For the Respondent: Radhana Singh, Adjuster Debbie Orth and Mariana Sarong, Counsel

HEARD: By Videoconference: May 12 and 27, 2021 and by written submissions

REASONS FOR DECISION [AND/OR ORDER]

BACKGROUND

1The applicant was injured in an automobile accident on April 22, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ ("Schedule").

2The applicant was travelling in a vehicle when a pick-up truck drove across several lanes of traffic causing a collision with the applicant's vehicle. As a result of the accident, the applicant sustained injuries to her head and neck, amongst other injuries.

3On March 5, 2018, the applicant was deemed to have a Class 4 or Marked Impairment based on significant limitations in her Activities of Daily Living, and as a result, the applicant has been determined to have a catastrophic impairment as defined under the Schedule. The applicant applied for an attendant care benefit ("ACB") that was denied by the respondent on the basis that it was not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

4In the written submissions of the parties, the issue of whether the applicant applied for ACB's within the two-year limitation period was raised. During the videoconference portion of the hearing, the respondent withdrew this issue and therefore, it will not be addressed as part of this decision.

ISSUES TO BE DECIDED

5The following are the issues to be decided:

i. Is the applicant entitled to an attendant care benefit in the amount of $1,256.51 per month from May 24, 2018 to date and ongoing?

ii. Is the applicant entitled to an award under s. 10 of Regulation 664 for unreasonably withheld or delayed payment of benefits?

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

RESULT

6The applicant is entitled to 315 minutes per week for Level 1 attendant care services that have been incurred under the heading of Feeding and 45 minutes per week for Level 2 attendant care services that have been incurred under the heading of Hygiene.

7The applicant is not entitled to 1260 minutes per week for Level 2 Basic Supervisory Care as that is not reasonable and necessary.

8The applicant is only entitled to ACB services that she has incurred in accordance with s. 3(7), however, as no proof of an economic loss by those providing the attendant care services, being the applicant's husband and/or the applicant's mother were provided, the applicant is not entitled to payment for the ACB.

9The applicant is not entitled to an award.

ANALYSIS

Preliminary Motions

10At the commencement of the hearing, each party brought a motion to exclude evidence. The respondent's motion was to exclude the applicant's evidence which was submitted as part of her written submissions as it was not disclosed by the ordered production deadline. The applicant sought to exclude the report of Mr. Wiltshire, occupational therapist as the notice setting out the request for the insurer examination ("IE") was deficient and not in compliance with s. 44(5) of the Schedule. Both motions were denied orally with detailed reasons to be provided in writing. Both parties were given the opportunity to provide oral submissions on how much weight I should afford the evidence as a result.

Respondent's motion

11The respondent's motion is denied for the following reasons. The documents the respondent seeks to exclude are emails and photos which the respondent already had in its possession, as these documents were created by the respondent. I am not persuaded of any prejudice to the respondent. The documents were included as part of the applicant's initial written submission and not in her reply submissions, I find that the respondent had an opportunity to respond to the evidence, thereby curing any potential prejudice.

Applicant's motion

12The applicant's motion is denied for the following reasons. The applicant relies upon the Tribunal case of M.B. v Aviva Insurance Canada,² in support of her position that the respondent did not provide medical or other reasons for its request for an IE. Furthermore, that the qualification of the IE assessor was also not listed in the notice.

13The denial and notice of the IE reads as follows:

[B]ased on the information on file and in consideration of the nature of the accident injuries, the time that has elapsed post-loss and the level of recovery achieved to date, that the scope, quantum of the request appears to be greater than what one would consider reasonable at this time.

Therefore, the attendant care needs outlined on the Form 1 seems excessive. We are arranging for a second opinion to determine if the attendant care needs outlined on the Form 1 is considered reasonable and necessary as a result of the accident.

14In accordance with M.B. v. Aviva insurance Canada, there is no reference to the applicant's medical condition forming the basis of the respondent's decision, or what specific information the respondent requires about the applicant that it does not have, or that it requires.

15The question to determine is what is the remedy for a deficient notice as the Schedule is silent as to a remedy for a non-compliance? The applicant relies upon NM v. Aviva Insurance Canada,³ in support of her position that the report should be excluded. In my view, creating a remedy for a breach of s. 44(5) when none exists in the Schedule, would be reading into the Schedule a remedy that was not provided for. Other sections of the Schedule have remedies for failing to comply, see for example s. 33(6), a failure to provide information or s. 55(1) 2. a failure to attend an IE. The Legislature could have included a remedy for a section 44(5) non-compliance as it did for other sections of the Schedule, but it chose not to. Furthermore, the facts of NM are different than the present case, in NM, no notice was provided to the applicant, here, a notice was provided but with insufficient reasons.

16As the notice was deficient, excluding the evidence when it was provided in accordance with the production deadlines in the Order, would be a draconian remedy. In my view, the evidence should be allowed, but the parties can provide submissions as to the weight that should be afforded to Mr. Wiltshire's report due to its deficient notice as it did not provide adequate medical and other reasons.

Is the applicant entitled to an attendant care benefit?

17I find the applicant's request for 315 minutes per week for Level 1 attendant care services under the heading of Feeding and 45 minutes per week for Level 2 attendant care services under the heading of Hygiene are reasonable and necessary for the following reasons.

18A Form 1 is prepared by an occupational therapist ("OT") and sets out the services and the amount of care an individual requires, as well as the monthly amount payable. If a person sustains a catastrophic impairment as a result of an accident, the maximum amount of ACBs payable is $6,000 per month.

19The Form 1 outlines three different levels of personal care that qualify for ACBs. These levels differentiate the required level of need along with the corresponding skill required to perform that care. Each level has a different hourly rate, and the care activities are measured in minutes per day. Level 1 refers to routine personal care, such as help with dressing, grooming, and feeding. Level 2 refers to care for basic supervisory functions, such as hygiene and self-sufficiency in emergency situations. Level 3 refers to complex health care and hygiene functions and assisting with prescribed exercise programs.

20The applicant testified that prior to the accident she worked 30-40 hours per week, she had no physical impairments, she was responsible for cooking, cleaning, laundry, she worked out 5-days per week and was also a trainer. She had no physical issues, mood or anxiety issues before the accident. She ran between 2-5 kilometres while training for the military and working on her stamina. Now, as a result of the accident, she feels dizzy, nauseous, she was diagnosed with a concussion. She was struggling at work as a dental assistant and resigned from work in September 2019 and has not returned since. The applicant stated she has brain fog and found it difficult to follow along and she would have to write things down as she would often forget. She was exhausted, had bad headaches and would end up coming home to sleep and rest. The applicant had to take time off of work to recover and she is no longer able to clean or do laundry, her husband currently does so. Her husband also does the banking, as she would make mistakes and would pay the same bills twice.

21The Form 1 recommends 22.58 hours per month for Level 1 and 93.53 hours per month for level 2 attendant care. 315 minutes per week is recommended under the Level 1 heading of Feeding. According to the Form 1, the applicant has difficulty with meal preparation due to increased fatigue, dizziness and increased neck pain with prolonged neck flexion when looking down at the counter to prepare meals.⁴

22Under Level 2, it is recommended that the applicant receive 45 minutes per week of assistance with Hygiene for maintaining bathroom hygiene and changing of linens due to increased dizziness for forward bending. 1260 minutes per week for Basic Supervisory Care for periodic check-ins throughout the day to assist with providing her with reminders due to cognitive difficulties and to provide daily emotional support to improve her psychological and emotional well-being.

23Ms. Whitteker, the occupational therapist who completed the Form 1, made objective findings that the applicant has deficits in the areas of decreased endurance, balance and positional tolerances, as well as increased pain, dizziness and headaches. According to Ms. Whitteker, the applicant requires partial assistance for dusting, tidying, linen changes, laundry tasks, mopping floors, sweeping floors, washing dishes, cleaning the bathroom, food preparation, pet care, grocery shopping and gardening. The applicant requires full assistance with vacuuming, lawn care and snow removal. Ms. Whitteker's objective findings correspond with the applicant's limitations based on her testimony.

24Ron Wiltshire is an occupational therapist and provided a report on behalf of the respondent. Mr. Wiltshire assessed the applicant on several occasions. The most recent was in response the applicant's Form 1. Mr. Wiltshire finds that upon his assessment of the applicant, she is not in need of any attendant care assistance.

25I find the report of Ms. Whittaker and the testimony of the applicant persuasive. I place less weight on Mr. Wiltshire's report, as it does not make reference to the applicant's self reports of dizziness and how that impacts his own objective finding of decreased balance. Furthermore, his report does not assess how her dizziness and decreased balance would impact her with meal preparation and hygiene issues which include cleaning the bathroom, making the bed or changing the bed linens. It is the applicant's testimony and that of her OT, Ms. Whitteker that her balance is not great and sometimes she would become dizzy and disoriented that she would have to hold on to objects to steady herself. As a result, household chores including meal preparation and cleaning which requires bending and standing, cause her dizziness and balance issues to worsen, preventing her from completing the required task.

26As a result, I find that attendant care assistance is required under the heading of Level 1 Feeding for 315 minutes per week as recommended by Ms. Whitteker and under Level 2 for 45 minutes per week for maintaining bathroom hygiene, making the bed and with the changing of linens.

27I will now turn to discuss the applicant's claim for supervisory care for 24 hours per day, 7 days a week.

Does the applicant require 180 minutes per day, 7 days a week supervisory care?

28It is my finding that the applicant's request for 180 minutes per day, 7 days a week of supervisory care is not reasonable and necessary for the following reasons.

29Ms. Whitteker recommends 180 minutes per day of basic supervisory care for periodic check-ins throughout the day to assist with providing reminders due to cognitive difficulties, and for daily emotional support to improve her psychological and emotional well-being.

30The definition of Basic Supervisory Care for which Ms. Whitteker is recommending assistance in the Form 1 is under the heading of "applicant lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour."

31The applicant testified that she is able to identify an emergency situation such as what to do if she smelled gas in the house or if the house was on fire. She testified that those were emergency situations, and it would require her to be able to get her son and exit the house. Ms. Whitteker also notes in her report that the applicant demonstrated the physical and cognitive ability to exit her home in a safe and timely manner. In my view, basic supervisory care is for those individuals who lack the cognitive ability to identify an emergency situation and how to respond to it. That is not the situation with the applicant in this case. As a result, I find that the applicant has not demonstrated a need for assistance with basic supervisory care and I find that it is not reasonable and necessary.

Was the attendant care "incurred"?

32The respondent submits the attendant care has not been incurred as required by the Schedule,⁵ and since the applicant's husband, and on occasion the applicant's mother were providing attendant care assistance which was not in the course of their employment, occupation or profession in which they would have ordinarily engaged, then they must show proof of an economic loss in providing that assistance.

33The applicant has not provided evidence or submissions that the ACB was incurred in accordance with s. 3(7) of the Schedule and submits that I should deem the attendant care incurred in accordance with s. 3(8). However, s. 3(8) states that the Tribunal may deem the expense to have been incurred if the insurer unreasonably withheld or delayed the payment of the benefit. I am not persuaded the respondent unreasonably withheld or delayed the payment of the ACB to make a finding that the ACB should be deemed incurred in accordance with s. 3.(8).

34I was not directed to evidence of an economic loss of the applicant's husband or her mother, and therefore I find that the applicant has not satisfied s. 3(7) of the Schedule and has failed to provide proof that the ACB has been incurred.

35I will now turn to discuss whether the applicant is entitled to an award.

AWARD

36The applicant seeks an award.⁶ For the following reasons I find that the respondent did not unreasonably withhold or delay the payment of benefits and the applicant's request for an award is dismissed.

37In order for an award to be granted, the applicant must provide compelling evidence on a balance of probabilities that the respondent's conduct was excessive, imprudent, stubborn, inflexible, unyielding, and immoderate.⁷

38The applicant submits she should be entitled to an award because the respondent:

• Did not respond to the applicant's Form 1 that was submitted on May 24, 2018;
• Failed to reinstate the ACB given the Court of Appeal's decision in Tomec,⁸ and the applicant was not notified that she was entitled to the benefit and waited for the appeal to be heard by the Supreme Court of Canada before reinstating the ACB;
• Relying on Mr. Wiltshire's IE report knowing that it is defective and misleading.

39The onus is on the applicant to provide compelling evidence in support of her claim for an award, and I have not been persuaded on a balance of probabilities. The applicant provides submissions, but I have not been directed to evidence in support that meets the threshold of behaviour that can be considered excessive, imprudent, stubborn, inflexible, unyielding, and immoderate. Not responding to the Form 1 on a single occasion would not, in my view, be conduct that is excessive, imprudent, stubborn, inflexible, unyielding, immoderate and sufficient to grant an award.

40The applicant submits the respondent waited for the appeal to be heard by the Supreme Court of Canada, however, that submission is not supported by the evidence, and I am not persuaded, that on its own, that would be evidence of conduct that is excessive, imprudent, stubborn, inflexible, unyielding, and immoderate.

41The applicant submits that the respondent relied on Mr. Wiltshire's report despite knowing it was defective and misleading. These submissions are not evidence and I have not been pointed to evidence of defective or misleading reporting by Mr. Wiltshire. Not agreeing with the report or noting deficiencies in the report, in my view would not be conduct that passes the threshold to find for an award. The applicant noted the report made references to certain assessments done by certain assessors and not others. However, Mr. Wiltshire testified that his report was based on his objective assessment of the applicant, and he did not rely on what other assessors opined. As a result, I am not persuaded that his report was defective or misleading.

42As a result of the above, I find that the applicant is not entitled to an award.

ORDER

43Based on the totality of the evidence before me, I find the applicant is entitled to 315 minutes per week for Level 1 attendant care services that have been incurred under the heading of Feeding and 45 minutes per week for Level 2 attendant care services that have been incurred under the heading of Hygiene.

44The applicant is not entitled to 1260 minutes per week for Level 2 Basic Supervisory Care as that is not reasonable and necessary.

45The applicant is only entitled to ACB services that she has incurred in accordance with s. 3(7), however, as no proof of an economic loss by those providing the attendant care services, being the applicant's husband and/or the applicant's mother were provided, the applicant is not entitled to payment for the ACB to date.

46The applicant is not entitled to an award and the application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 22017 CanLII 87160 (ON LAT)
3. 32019 CanLII 94126 (ON LAT) at para. 36. ("NM")
4. 4Applicant written submissions at Tab 5 and Tab 9. Attendant Care Needs Report Form 1 by Maegan Whitteker dated May 4, 2018 and February 27, 2020.
5. 5See s. 3(7)(e).
6. 6Section 10 of Automobile Insurance, RRO 1990, Reg 664.
7. 7S.M. and Unica Insurance Inc, 2020 CanLII 61460 (ON LAT) at para. 39.
8. 8Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882