21-006848/AABS

Licence Appeal Tribunal File Number: 21-006848/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:

Colin Rimkey

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Jeffery Campbell

APPEARANCES:

For the Applicant:

Colin Rimkey, Applicant

William Harding, Counsel

For the Respondent:

Michelle Banerjee, Wawanesa Mutual Insurance Company, Claims Representative

Anju Sharma, Counsel

HEARD: by Videoconference:

September 21-23, 2022 & January 26-27, 2023

OVERVIEW

1Colin Rimkey, the applicant, was involved in an automobile accident on December 28, 2011, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This applicant suffered catastrophic injuries as a result of the accident on December 28, 2011, including a moderate to severe subdural hematoma, traumatic brain injury, C6 transverse process fracture, C5-C6 inferior and superior endplate fractures requiring fusion surgery, a torn aorta, a severely displaced manubrial fracture and fractured sternum, a pulmonary contusion and pneumothorax.

ISSUES

3The issues to be decided in this hearing are:

1. Is the applicant entitled to attendant care benefits of $2,202.51 per month from April 21, 2021 to date and ongoing?

2. Is the applicant entitled to a non-earner benefit of $320.00 per week from April 12, 2021 to date and ongoing?

3. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The Applicant is entitled to attendant care benefits in the amount of $445.50 per month from April 12, 2021 and ongoing plus interest according to s. 51 of the Schedule. The Applicant is not entitled to non-earner benefits. The Respondent is not liable to pay an award.

ANALYSIS

Issue 1 – The applicant is entitled to attendant care benefits in the amount of $445.50 per month

5I find that the applicant is entitled to attendant care benefits in the amount of $445.50 per month.

6Section 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 the benefits on a balance of probabilities.

7Section 3(7)(e) provides that a person has “incurred” an attendant care expense if they have received goods or services to which the expense relates; paid the expense; promised to pay the expense; or otherwise legally obligated to pay the expense.

8The issue in this matter is not entitlement to attendant care benefits, but, rather, the amount of attendant care benefits that are reasonable and necessary.

9The applicant’s occupational therapist, Ann McFarlane, submitted an Assessment of Attendant Care Needs (Form 1), dated November 18, 2020, to the respondent assessing the applicant’s attendant care needs at $2,202.51 per month.

10The respondent’s insurer’s examination occupational therapist, Angela Fleming, evaluated the applicant’s attendant care needs at $141.41 per month, in her Occupational Therapy Assessment Report and Form 1, dated March 17, 2021.

11Both the applicant and the respondent agree that the applicant has suffered catastrophic injuries, continues to exhibit psychological sequelae, and requires some measure of attendant care. Both the insurer neuropsychologist, Dr. David Kurzman, and the insurer occupational therapist, Ms. Fleming, opined that the applicant may need more attendant care than that which was recommended in Ms. Fleming’s report of March 17, 2021.

12The evidence of the applicant, his wife and his aunt all establish that the applicant has recovered significantly since the motor vehicle accident of 2011. The applicant has since purchased a home, has lived “independently,” has married, exercises at a gymnasium and is licenced to drive. However, the applicant continues to exhibit mood swings and fatigues easily, depending on his level of activity.

13With respect to the evidence of the occupational therapists, it must be noted that both the of the ‘competing’ Assessments of Attendant Care Needs and Form 1’s have strengths and weaknesses. Ann McFarlane has been the applicant’s occupational therapist since the motor vehicle accident and knows the applicant’s history and needs. However, she did not perform functional testing for the Form 1 of November 18, 2020. Conversely, Angela Fleming’s only contact with the applicant was the three hours that she was with him when conducting the insurer’s examination of March 3, 2022. However, she did conduct functional testing.

14The major differences between the two Form 1’s centre on queuing and supervisory care.

15With respect to the category of basic supervisory care at issue is the applicant’s lack of “ability to respond to an emergency or needs custodial care due to changes in behavior”. Ms. McFarlane quantifies supervisory care at 240 minutes per day, while Ms. Fleming calculates the same at zero.

16After analyzing the medical evidence with respect to this category, I find both conclusions to be extreme. There is no debate between the parties that the applicant had sustained major physical and cognitive injuries. There is also no debate that the applicant has achieved, at the least, an admirable level of function. However, cognitive issues such as the necessity of queuing and physical issues such as fatigue continue to be factors in the applicant’s daily life. It stands to reason that, despite the applicant’s progress since his motor vehicle accident, continued adequate basic supervisory care is required and should be available, if only for safety concerns. For those reasons, I find that 60 minutes per day in this category is reasonable and necessary.

17I also agree with the applicant that the coordination of attendant care of 60 minutes per week is required in order to assist the applicant with proper scheduling of attendant care with his providers. Ms. Fleming testified that the applicant was coordinating his own appointments and, therefore, requires no time for this category. However, the applicant’s wife, mother, and aunt all testified that the applicant has difficulty with queuing and organization. In that context, I don’t accept that it is reasonable to leave it to the applicant to ensure the coordination of his own attendant care. I therefore find that 60 minutes per week in this category is reasonable and necessary.

18Under the category of hygiene, Ms. McFarlane allotted a total of 90 minutes per week for cleaning his tub…changing is bedding…hanging his clothes, etc. I do not accept that this is necessary, as the applicant’s wife testified that she does most of the housekeeping. Under this same category of hygiene, Ms. Fleming quantifies this category at 192.5 minutes per week specifically to ensure comfort, safety, and security in his environment. Of this amount, Ms. Fleming designates 120 minutes per week largely for queuing and problem solving. This, however, has been covered above under the category of basic supervisory care. The remaining 72.5 minutes per week is attendant care provision with respect to additional assistance for when the applicant is experiencing higher levels of pain and to provide the applicant with higher level financial support. I find both of these to be reasonable and necessary, as the evidence shows that the applicant does have higher levels of pain on some days more than others, as well as the testimony of his aunt her assisting the applicant in the area of complicated financial dealings. I therefore find that 72.5 minutes per week is reasonable under this category.

19Regarding the category of medication, specifically monitoring medication intake and effect and in maintaining and controlling medication supply, I cannot agree with Ms. McFarlane’s conclusion of 28 minutes per week, as the applicant’s wife testified that the applicant does his own medication management for the most part.

20With respect to the category of feeding, I note that the applicant has lived independently for a number of years, and has had few, if any issues with food preparation. The testimony of his wife is that she does most of the food preparation, with his assistance. Accordingly, I apportion no attendant care towards this category.

21Regarding exercise, the evidence establishes that the applicant is self-motivated in this area. The applicant testified that he attends the gym at least four times per week. I apportion no attendant care toward this category.

22In summary, I find that the following is reasonable and necessary with respect to Attendant Care:

a. Form 1, Part 2 - Basic Supervisory Care @ 420 minutes per week (30.1 hours per month); Coordination of Attendant Care @ 60 minutes per week (4.3 hours per month); Hygiene @ 72.5 minutes per week (5.2 hours per month), totalling 39.6 hours per month x $11.25 per hour = $445.50 per month

Issue 2 – The applicant is not entitled to Non-Earner Benefits in the amount of $320.00 from April 12, 2021 and ongoing

23The applicant was paid non-earner benefits until April 12, 2021, at which point those benefits were terminated pursuant to the conclusions of the insurer examination of Angela Fleming dated March 3, 2021, which found that the applicant does not have a complete inability to carry on a normal life, as he has “returned to many, if not most of his activities of daily living.”

24Based on the totality of the evidence and for the reasons set out below, I find the applicant has not established that he is entitled to the non-earner benefit from April 12, 2021 and ongoing.

25Section 12(1) of the Schedule outlines the test to be applied when determining eligibility for non-earner benefits relevant to this applicant’s claim:

12. (1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

26Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as whether, “as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

27While the phrase “substantially all” is not defined in the Schedule, the Court of Appeal has held that “substantially all” does not mean “all.” See: Galdamez v. Allstate Insurance Company of Canada 2012 ONCA 508 at paragraph 39.

28In Heath v. Economical Mutual Insurance Company, (2009) 2009 ONCA 391, 95 OR (3d) 785 (CA) (“Heath”), the Court of Appeal provided guidance as to how to analyse whether a person is inhibited from substantially all of their activities: the Tribunal should compare the applicant’s life before the accident to the applicant’s life after the accident, in accordance with the following principles:

(i) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

(ii) All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

(iii) The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

(iv) “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

(v) If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.

29Here, it is difficult to compare the Applicant’s pre-accident life with his present life, as he was 18 years old at the time of the accident and is now a 29-year-old married individual. In such a situation, where there is a limited history to consider, it is important to consider not only the pre-accident activities but also the trajectory of the individual’s life. See: Mulhall v. Wawanesa Mutual Insurance Co. 2005 Carswell ON 7566. This is particularly relevant when considering an applicant’s work history (which is minimal, if at all) and his present employability.

30The evidence establishes that since the accident, the applicant has undergone extensive medical treatment and continues to undergo treatments such as massage and nerve block injections. In 2014, the Applicant moved from his parent’s home his grandparents’ home. He then purchased his own home in 2019. His wife moved in with him in 2021. They are now expecting their first child.

Testimony for the Applicant

31The evidence provided by the applicant’s mother, Shawna Rimkey, his aunt, Susan Storey, and the applicant himself paint the pre-accident portrait of an active and social grade 12 student. He was involved in his church youth group and enjoyed the social aspects of high school. They testified that, since the accident, he has become less social and has lost some friendships, partially due to his moodiness in dealing with people.

32The applicant describes his typical day as waking at 10:00 or 11:00 am, going to the gym, attending medical appointments, and attempting to have dinner ready for his wife. He described his struggles with pain, mood swings, memory difficulties and fluctuating energy levels. The quality of his sleep is dependent upon the pain and restlessness that he is experiencing at that time. The quality of his day is dependent, in turn, on the quality of sleep.

33Regarding his social life, prior to the accident, he had a core group of Christian friends. However, he believes that he is a different person now and every year he seems to lose friends. He testified that he could act inappropriately and be argumentative. Social life is very important, but friends are now hard to come by.

34With respect to his career trajectory, prior to the accident, the applicant had been accepted into the Police Foundations programs at both Georgian College in Orillia and at Canadore College in North Bay. He believes that he is now unable to successfully complete that program as he is unable to sit for more than and hour and he “can easily forget the stuff that he learned.” He did take a business course at Georgian but was only able to do one course at a time, due to pain and anxiety. He testified that it would have taken him eight years to finish the business course if he stuck with it.

35The applicant’s mother testified that, pre-accident, her son was an overall good student. He was respected by his peers and liked by his teachers. She describes the applicant’s present typical day consisting of attending the gym, medical appointments and having dinner at home or with friends.

36The applicant’s aunt testified that, although her nephew has experienced substantial improvements since the accident, he continues to struggle with day-to- day tasks due to his brain injury and chronic pain. She testified that, as she had worked as a financial advisor, she has assisted him with financial issues. She testified that her nephew has impulsive spending behaviours. Regarding his employability, she testified that the applicant has looked into house-flipping as a vocation and has an amazing flair for design and decorating. She advised that she has encouraged him to do volunteer work.

37The applicant’s wife testified that her husband struggles with pain and fatigue. She testified that, due to the fatigue, he can only do one major activity a day. She advised that, due to his brain injury, queuing and pacing are important. He also struggles with anxiety and depression, sometimes staying in bed the whole day. It is her opinion that, although it is “uncomfortable” for him not to be working, his physical and cognitive limitations make him incapable of holding employment.

Medical Evidence from the Applicant

38In an OCF-3 (Disability Certificate), dated August 7, 2013, the applicant’s family doctor, Dr. J.B. Lowry, noted that the applicant suffers from a complete inability to carry on a normal life.

39Ann McFarlane, occupational therapist, testified that she has been the applicant’s treating occupational therapist since February, 2012. She testified that the applicant’s ability to maintain a set level of activity is a problem due to lack of sleep and his level of pain. She testified that the applicant looks good but has a difficult time thinking things through and fully understanding new things. She testified that, since the accident, his social life has diminished and he has become isolated at home. In an OCF-3 dated November 24, 2020, Ms. McFarlane noted that the Applicant suffers a complete inability to carry on a normal life. In her Assessment of Attendant Care Needs Report, dated February 11, 2021, Ms. McFarlane advised:

(i) Mr. Rimkey has demonstrated a level of skill which has permitted him to move out from his parent’s home and to build upon a base of knowledge which eventually permitted him to purchase a home to live alone. His progress has, however, slowed. He has demonstrated difficulty directing his own care and identifying areas where he could develop further and delegate less. His difficulty with energy management has impacted his level of independence significantly. He has had difficulty working with a routine or more structure to his day. He is easily overwhelmed.

(ii) Mr. Rimkey has difficulty demonstrating consistency of effort in regard to his own care. He is impacted by pain, fatigue, and cognitive changes. His resiliency and endurance are lower than might be expected in someone of his age.”

Medical Evidence from the Respondent

Evidence of Angela Fleming

40Occupational therapist, Angela Fleming, testified that at the request of the respondent, she met with the applicant for three hours on March 3, 2021. In her Insurer’s Examination Occupational Therapy Assessment Report, dated March 17, 2021, Ms. Fleming concluded:

(i) Mr. Rimkey does not have a complete inability to carry on a normal life as a direct result of injuries sustained in the accident. He has returned to many, if not most of his activities of daily living. Given he is now a young adult, there have been some changes in the types of activities he engages in. He currently resides alone, cares for a pet, is involved in a romantic relationship, drives a vehicle, volunteers in the community (outside of COVID), and remains involved in his faith-based community.

Evidence of Dr. David Kurzman

40Neuropsychologist Dr. David Kurzman testified that at the request of the respondent, he met with the applicant on March 23, 2022 for the purpose of the production of an Insurer’s Examination report. In his Neuropsychology-Psychology Assessment Report dated April 21, 2022, Dr. Kurzman concluded:

In my opinion, Mr. Rimkey does not suffer a complete inability to engage in substantially all of his normal activities although he does suffer from a substantial inability to perform various activities in his normal life.

41Dr. Kurzman testified that he did not compare the applicant’s pre-accident abilities with his post-accident abilities due to his age at the time of the accident. He also testified that he did not consider the applicant’s ability to work, as, in his opinion, employment is covered by other benefits.

Surveillance

42Extensive surveillance on the applicant was conducted over seventeen days in 2017 and 2020. In the surveillance, the applicant was observed, among other activities, driving, shopping, exercising with his personal trainer, spending time with family and socializing with friends.

43Counsel for the applicant submits that this surveillance discloses that the applicant is not living a life of someone his age, as he rarely leaves his home until the afternoon, and reveals that he is visited by family almost every day.

Analysis

44There is no doubt that the applicant continues to suffer somewhat in his ability to live a normal life since the accident. I cannot conclude, however, that he is substantially incapable of carrying out all of his pre-accident activities and therefore suffers a complete inability to carry on a normal life, as defined in Heath.

45I do recognize that the applicant retains some limitations with respect to pain and energy levels. However, he has made significant progress in his recovery. As noted previously, since 2015 he has lived independently, has purchased a home, married his wife, adopted a rescue dog, is in the process of building a new home, and is now expecting his first child.

46With respect to his social life, the evidence suggests that the applicant has lost some friends, and even family, allegedly due to his impatience and inappropriateness stemming from his brain injury. However, while the applicant has lost some close friends, he has gained others, including, most importantly, his wife.

47Regarding employment, and the trajectory of the applicant’s career path, the evidence demonstrates that the applicant was looking forward to commencing his studies in Police Foundations and entering a career as a police officer. The injuries sustained in the accident of December 28, 2011 terminated that plan. Post-accident, the applicant did attempt college courses, albeit with little success, due to memory and pain issues.

48The loss of the applicant’s dream of a becoming a police officer was, and is, undoubtedly disappointing. However, we must keep the following in mind. First, there is no way to be certain that the path to becoming a police officer would have been successful, or that that path would not have changed enroute. Secondly, there is no medical evidence before the Tribunal stating that this goal is currently unattainable. Thirdly, even if becoming a police officer is unattainable, there is testimonial evidence that the applicant is probably capable of working in other occupations, such as house-flipping or designing.

49Finally with reference to the medical evidence, I note that the applicant has not produced any medical expert report concluding that he has a complete inability to carry on a normal life, thus qualifying him for non-earner benefits. There are, however, two expert reports that conclude that he does not.

50The applicant is, by any measure, affected in his activities as a result of the accident. Inarguably, he is limited by his injuries. Nevertheless, in considering the totality of the evidence, I find that he is does not have a complete inability to carry on a normal life as defined by the legislation and the case law. Therefore, I find that the applicant has not satisfied his onus to demonstrate his entitlement to non-earner benefits from April 12, 2021 and ongoing.

Issue 3 - The applicant is entitled to interest on attendant care benefits

51Pursuant to s. 51(2) of the Schedule, interest shall be paid on attendant care benefits of $304.09 per month ($445.50 less amount approved $141.41) incurred from April 1, 2021 to date.

Issue 4 - The respondent is not liable to pay an award under s. 10 of Regulation 664.

52The applicant claims an award under s. 10 of Regulation 664. Regulation 664 empowers the Tribunal to order payment of a lump sum plus interest by an insurer to an insured person if the insurer has unreasonably withheld or delayed payment of benefits The standard for an award under Regulation 664 is set out in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co [Plowright], 1993 OIC File No. A-003985 (FSCO). An award is appropriate where an insurer has engaged in conduct that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

53The record before me does not establish conduct of this nature. The respondent terminated the applicant’s non-earner benefits on the basis of properly scheduled insurer examinations. With respect to attendant care, the dispute was not that of entitlement, but of quantum. I find no breach of the respondent’s duty of good faith in either issue.

ORDER

54The Applicant has not met his onus to prove that he is entitled to non-earner benefits. The Applicant has met his onus for attendant care benefits in the amount of $445.50 per month from April 12, 2021 and ongoing.

55The Respondent shall pay attendant care benefits in the amount of $445.50 per month from April 12, 2021, plus interest on the unapproved amount of $304.09 per month. Interest shall be calculated in accordance with s. 51 of the Schedule.

56No award is payable.