Mundiguing v. Economical Insurance, 2023 CanLII 65739

Citation: Mundiguing v. Economical Insurance, 2023 ONLAT 21-002559/AABS

Licence Appeal Tribunal File Number: 21-002559/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:

Edna Mundiguing

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Jonathan M. Burton, Counsel

For the Respondent: Nivedita Misra, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Edna Mundiguing, the applicant, was involved in an automobile accident on September 10, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to attendant care benefits of $703.43 per month from August 7, 2020 to date and ongoing?

ii. Is the applicant entitled to $658.79 ($1,158.27 less approved $499.48) for assistive devices, proposed by Patricia Saad in a treatment plan denied on September 3, 2020?

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

RESULT

3I find that:

i. The applicant is not entitled to attendant care benefits for the period in dispute, as the benefits were not incurred;

ii. The applicant is not entitled to the outstanding balance of the treatment plan for assistive devices;

iii. The applicant is not entitled to interest.

ANALYSIS

Attendant Care Benefits

4I find that the applicant is not entitled to attendant care benefits (“ACBs”) for the period in dispute, as she has not established that she has incurred any ACBs as a result of the accident.

5Section 19 of the Schedule states 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 ACB services provided by an aide or attendant.

6Section 3(7)(e) of the Schedule provides guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (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. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.

7The applicant claims ACBs from August 7, 2020 to date and ongoing, but has not provided any submissions or evidence as to whether these benefits were incurred under any of the prongs of s. 3(7)(e). The applicant has not provided details of any attendant care assistance, names of any service providers, dates attended, what type of assistance was provided, time spent, remuneration for providing assistance, receipts or invoices, indicating proof of incurred expenses. Moreover, if the person who provided ACBs is a family member, as opposed to a professional service provider, any ACBs payable are limited to the economic loss incurred by the family member. No submissions, evidence or details of any such loss were provided by the applicant.

8The applicant submits that a ruling can be made on the quantum of the ACBs “subject to proof of incurred”. She contends that the respondent is focussing on a technicality when it argues that ACBs must be incurred in order to be payable. Respectfully, I disagree with the applicant’s position and find that the absence of proof of incurred ACBs expenses is determinative. Section 19 of the Schedule is explicit in stating that ACB expenses must be incurred to be payable.

9I further do not find the caselaw cited by the applicant supports her position that proof of incurred ACB expenses is not required. The applicant relies on the Financial Services Commission of Ontario’s decision Motor Vehicle Accident Claims Fund v. Veley, 2015 CarswellOnt 6752. However, I note that in this decision, arbitrator Evans found that the previous arbitrator had erred in finding that the respondent was liable to pay an amount of ACBs which exceeded the applicant’s actual incurred expenses, stating that “(a) blanket order for ACBs regardless of the expenses incurred is inappropriate”. The applicant further states that this decision supports her position that witness testimony is sufficient proof of incurred expenses. However, I agree with the respondent that this is not applicable in the present matter, given that these proceedings are being conducted by written hearing, without any witness testimony or affidavit evidence.

10As such, I find that the applicant is not entitled to payment to of ABCs, as she has failed to prove on a balance of probabilities that she incurred any ACB expenses in accordance with s.3(7) of the Schedule. Further, the applicant has not offered analysis on why s. 3(8) may apply to deem the expenses incurred.

The applicant has not established entitlement to the OCF-18 for assistive devices

11The applicant submitted an OCF-18 dated August 25, 2020 in the amount of $1,158.27 for a number of assistive devices, including: lumbar support and seat cushion, ergonomic office stool, ergonomic foot rest, external keyboard, external mouse, blue-light filter, heat pad, bookstand, laptop stand, wrist ergonomic support, personal massager and education promoting health and preventing disease.

12The respondent partially approved the OCF-18 in the amount of $499.48, for the personal massager and ergonomic stool, but denied the remainder of the devices, based on the insurer’s examination (“IE”) assessment of Jeena Abraham, OT. In denying the remaining items, Ms. Abraham noted that the applicant already had her own lumbar brace and that with respect to the heating pads, the applicant reported that she preferred cold therapy for pain reduction. With respect to the remaining assistive devices, Ms. Abraham noted that they were ergonomic office equipment that was no longer necessary, as the applicant had completed her nursing course and would be taking her license examination at the end of 2020. Given the applicant’s employment as a personal support worker, Ms. Abraham found that ergonomic office/computer equipment was not reasonable and necessary.

13The applicant has not provided any specific submissions or evidence as to the reasonableness and necessity of the remaining proposed assistive devices. The applicant simply provides the general submission that based on the medical record, there is no reasonable basis to deny her claim. The applicant further states that the devices are required regardless of whether she has completed her schooling.

14To receive payment for a treatment and assessment plan, the applicant bears the burden of demonstrating not only that she suffers from a physical impairment, but also that the proposed treatment is reasonable and necessary. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

15The OCF-18 in dispute specifically states that the proposed devices were meant to address the applicant’s difficulties studying for her Practical Nurse Registration Examination, due to post-accident pain symptoms and cognitive symptoms. Although in her submissions she states that these devices were still necessary regardless whether her schooling was completed, no reasons were provided as to why these studying devices are still required. Without any specific submissions to rebut the respondent’s argument that these assistive devices are no longer required, I find that the applicant has not established that the outstanding balance of the OCF-18 in dispute is reasonable and necessary.

Interest

16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.

ORDER

17For the reasons outlined above, I find that:

i. The applicant is not entitled to attendant care benefits for the period in dispute;

ii. The applicant is not entitled to the outstanding balance of the treatment plan for assistive devices;

iii. The applicant is not entitled to interest.

18The application is dismissed.