Orval Reid v. Aviva Insurance Company of Canada, 2023 CanLII 44323

20-008924/AABS

Licence Appeal Tribunal File Number: 20-008924/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:

Orval Reid

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Ashu Ismail, Counsel

For the Respondent:

Lynn Highly, Adjuster Jean-Claude Rioux, Counsel Theresa Park, Counsel

Frank Benedetto, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Orval Reid, was injured in an automobile accident on April 19, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule) from Aviva Insurance Company of Canada, the respondent.

2The respondent denied the applicant’s claim for an attendant care benefit (ACB) and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is the applicant entitled to an ACB in the amount of $1,707.83 per month from April 19, 2018 to May 11, 2022?

(ii) Is the applicant entitled to an ACB in the amount of $2,030.95 per month from May 12, 2022 to date and ongoing?

(iii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that:

(i) The applicant is not entitled to an ACB in the amount of $1,707.83 per month from April 19, 2018 to May 11, 2022.

(ii) The applicant is not entitled to an ACB in the amount of $2,030.95 per month from May 12, 2022 to date.

(iii) The respondent is not liable to pay an award under Regulation 664.

(iv) The applicant is not entitled to interest on any overdue payment of benefits.

ANALYSIS

5The applicant reported that he was the seat-belted driver of a Ford F150 that was rear-ended by another vehicle while he was stopped. As a result of the impact, the applicant’s vehicle struck another vehicle. The airbags did not deploy, he was semi-conscious following the collision, and he experienced pain in his neck and lower back. The police and ambulance attended the scene, but he did not go to the hospital until a few days after the accident. He was diagnosed with a concussion, and he began physical rehabilitation therapy. The applicant reported pain in his neck, upper and lower back, and bilateral shoulder. The applicant also reported irritability, double vision, memory issues, occasional headaches, fatigue, balance issues, and sensitivity to light and noise.

The applicant is not entitled to an ACB in the amount of $1,707.83 per month from April 19, 2018 to May 11, 2022.

6Section 19(1)(a) of the Schedule states that an applicant is entitled to reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant. A prerequisite to entitlement is that the expense is “incurred,” as defined in section 3(7)(e)(iii) of the Schedule:

… an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person

7Ajodele Zapparoli, occupational therapist, completed an Assessment of Attendant Care Needs (Form 1) dated September 5, 2018 and proposed monthly attendant care in the amount of $1,707.83.

8On October 24, 2018, the respondent confirmed in a letter addressed to the applicant that it received correspondence from his legal representative on October 23, 2018 stating that he no longer wanted to claim ACB. The respondent further advised the applicant that it would cancel the s. 44 In-home occupational therapy assessment scheduled to take place on November 6, 2018. The applicant was reminded to advise it if he were to change his mind with respect to the ACB in order to reschedule the s. 44 Insurer’s Examination (IE) assessment.

9On July 22, 2020, the respondent sent a letter to the applicant acknowledging receipt of an email from his counsel addressing ACBs dated July 21, 2020. The applicant was requesting payment for ACBs; however, the respondent advised that it had not received any incurred expenses to date. The respondent advised that it would be rescheduling the IE to address ACBs. The respondent scheduled and rescheduled an IE in-home assessment to address numerous OCF-18s on October 9, 2020 and on February 4, 2021; the IE was to address the OCF-18s for an attendant care assessment and occupational therapy. The applicant did not attend the IE. The applicant was notified on April 12, 2021, that his benefits were suspended as he did not attend the IE. An IE for an Assessment of Attendant Care was never completed.

10Despite receiving a letter from the respondent on October 23, 2018 confirming that his counsel advised that he was no longer claiming ACBs, the applicant testified that he had no knowledge of his counsel advising the respondent that he no longer wanted to pursue a claim for ACBs until after the fact.

11The applicant submits that the respondent’s response to this Form 1 was non-compliant due to not providing medical reasons. The applicant further submits that once he filed the application with the Tribunal on July 30, 2020, the respondent should have scheduled an IE to assess the benefit.

12Lynn Highly, adjuster for the respondent, testified that this Form 1 was never posted on HCAI and that the respondent had not received any OCF-6s for ACBs.

13Pursuant to s. 280(1) and 280(2) of the Insurance Act, RSO 1990, c I.8, the LAT has exclusive jurisdiction to resolve disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. A crucial part of the LAT’s adjudicative jurisdiction is the existence of a “dispute” between the parties.

14Furthermore s. 55 (1) of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280 (2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit.

15The applicant is not entitled to an ACB as he, through his counsel, notified the respondent that he was no longer claiming ACBs. He did not notify the respondent after October 23, 2018, that he intended to claim ACBs and the Form 1 was never submitted to HCAI. The respondent confirmed with the applicant by a letter that it understood that he was no longer pursuing a claim for ACBs. The law firm representing him at this hearing is the same as that who had notified the respondent that the applicant was no longer claiming ACBs, and at no subsequent point was the respondent notified that the applicant intended to pursue ACBs based on the Form 1 dated September 5, 2018. The applicant or applicant’s counsel had ample time to notify the respondent of any errors associated with pursing ACBs. As such, there was no dispute between the parties for this Form 1 and therefore the Tribunal does not have jurisdiction to adjudicate this issue pursuant to s. 280 (2) the Insurance Act and s. 55(1) of the Schedule.

The applicant is not entitled to an ACB in the amount of $2,030.95 per month from May 12, 2022 to date.

16The same sequence of events relating to ACBs described above is relevant to my analysis on this issue.

17Ann McFarlane, occupational therapist, completed a Form 1 in the amount of $2,030.95 per month dated May 6, 2022.

18The respondent provided an explanation of benefit to the applicant on May 24, 2022, advising that the Attendant Care Assessment completed on May 4, 2022, would not be funded prior to the submission of a treatment and assessment plan. I was not presented with an explanation of benefits for the Form 1 in dispute and Lynn Highly testified that this Form 1 was never posted on HCAI.

19The Financial Services Commission of Ontario (FSCO) released a revised Health Claims for Auto Insurance (HCAI) Guideline on September 20, 2018, which came into effect October 1, 2018. The guideline informed insurers and health care providers that effective October 1, 2018, they must use HCAI for submitting and processing the Form 1.

20In light of the evidence, I find that his Form 1 was not properly submitted on HCAI. For the same reasons described above, I find that there is no dispute between the parties for this Form 1 and therefore the Tribunal does not have jurisdiction to adjudicate this issue.

21In the alternative, even if the Form 1 was properly submitted to the respondent, the applicant would still not be entitled an ACB because he has not proven that he incurred an expense for this benefit.

22The applicant’s wife testified that she is a retired Personal Support Worker (PSW) and that she is professionally qualified to provide attendant care service, having received a certification from the Simcoe County District School Board in 2005. At the time of the hearing, she had not received a paycheque for her work as a PSW in eight years and she was volunteering as a PSW and volunteering at Colman Nursing Home until the COVID-19 pandemic. According to the applicant’s wife’s undated, handwritten note provided to the respondent on December 10, 2020, and her oral testimony, she provided 24-hour attendant care service to the applicant since April 18, 2018 in the following ways:

1. Helps him in and out of the bath and shower
2. Helps him put on his socks
3. Helps with meal preparation and cooking
4. Drives him to doctors appointments and other places
5. Does the laundry and cleaning

23The applicant relies on Helmer v Bel-air Direct, 2018 ONSC 2888 to argue that the attendant care service provider need not be employed at the time of the accident to meet the requirement of “ordinarily engaged in her profession”. The applicant also submits that the respondent did not properly deny this benefit pursuant to the Schedule. The applicant argues that the respondent never provided a notice for an IE for this benefit and therefore it should have paid ACBs within 10 business days after receiving the assessment of attendant care needs, pending receipt of the IE.

24The respondent submits that the attendant care was not incurred. On December 10, 2020, the applicant’s counsel sent the respondent a copy of the applicant’s wife’s PSW certificate and a hand-written note which stated that she provided 24-hour attendant care to the applicant since the accident. The respondent submits that s.19 of the Schedule makes it clear that the ACB only apply to attendant care that was incurred as required by section 3(7)(e)(iii) of the Schedule.

25The respondent relies on 16-000525 v Certas Home and Auto Insurance Company, 2017 CanLII 9810 (ON LAT) and J.P. v Aviva General Insurance, 2020 CanLII 34498 (ON LAT) and submits that the applicant’s wife does not meet any of the criteria because, at the time of the accident, she was volunteering as a PSW and she continued to volunteer up until the start of the COVID-19 pandemic. The respondent submits that it is not denying that the applicant’s wife provided services but that they were not as part of her occupation/profession and there is no evidence of economic loss.

26The applicant’s entitlement to an ACB turns on whether his wife was ordinarily engaged in her profession as a PSW prior to the accident. The applicant is also entitled to an attendant care benefit under this provision if he can show that his wife sustained an economic loss in providing her service.

27Helmer refers to Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014, where Shawnoo’s mother was qualified as a PSW but was not working prior to the accident and she was unemployed. There was no evidence she was actively seeking employment or was likely to receive an offer for employment. The court in Shawnoo found that the mother would not ordinarily have been engaged in healthcare services employment. As such, the services she rendered to Shawnoo did not qualify for attendant care benefits. Applying both Helmer and Shawnoo to the present matter, I find that the applicant’s wife was not in the course of her employment, occupation or profession in which she would have ordinarily been engaged, but for the accident when she provided her attendant care services pursuant to section 3(7)(e)(iii)(A) of the Schedule.

28The applicant’s wife falls within both classes. She is a family member who took time to care for her husband and she has professional qualifications for the services she provided. However, s. 3(7)(e)(iii)(B) requires that the applicant show that his wife sustained an economic loss as a result of providing her services. On October 11, 2018, the applicant was advised by the respondent that to consider reimbursement for incurred expenses, it would require documentation including the name, address and telephone number of the attendant care service provider, the type of services performed, dates, times and amount charged per hour. Apart from the handwritten note provided to the respondent on December 10, 2020, the applicant’s wife did not provide any other details such as her hourly rate, total amount owing, type of services performed or dates and times other than to claim that she provided 24-hour attendant care. There is insufficient evidence of such economic loss as required by s. 3(7)(e)(iii)(B).

29I find that the applicant is not entitled to an ACB because he has not proven that he incurred an expense for this benefit and therefore I do not need to decide whether the attendant care costs are reasonable and necessary. While the applicant’s wife is a professional service provider, her services were not rendered in her professional capacity. She was not in the course of her employment, occupation or profession in which she would ordinarily have been engaged, but for the accident, or sustained an economic loss as a result of providing the goods or services to the applicant.

Award

30Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

31As I have found that there is no unreasonably withheld or delayed payment of benefits, there is no basis upon which to consider an award in this matter.

Interest

32As there are no benefits owing, no interest is payable.

CONCLUSION

33For the reasons outlined above, I find that the applicant is not entitled to any of the claimed benefits, award or interest. This application is dismissed.