Citation: Cox v. The Personal Insurance Company, 2024 ONLAT 21-011858/AABS

Licence Appeal Tribunal File Number: 21-011858/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:

Peter Cox

Applicant

and

The Personal Insurance Company

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Applicant: Lora Castellucci, Counsel

For the Respondent: Andrea R. Lim, Counsel

HEARD: In Writing

OVERVIEW

1Peter J. Cox, the applicant, was involved in an automobile accident on July 2, 2016, 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, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent partially approved the applicant’s claim for attendant care benefits (ACBs). The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to attendant care benefits in the amount of $4,575.39 per month from July 2, 2016 to April 5, 2018?

2. Is the applicant entitled to attendant care benefits in the amount of $1,344.62 per month from February 1, 2017 to July 1, 2018?

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

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

RESULT

4The applicant is not entitled to attendant care benefits (ACBs).

5The applicant is not entitled to interest.

6The applicant is not entitled to an award.

ANALYSIS

ACBs

7The applicant sustained multiple orthopaedic injuries on July 2, 2016 as a result of a motor vehicle accident (“MVA”) while traveling in North Dakota. He was transported by Latitude Air Ambulance Services (“Latitude”) from the accident scene to Trinity Hospital in Minot, North Dakota where he underwent multiple surgeries. He was there until his discharge on July 4, 2016. The applicant was then transported, once again by air ambulance, to Simcoe, Ontario, where he was admitted to the Norfolk General Hospital until his discharge to his home on September 13, 2016.

8On March 15, 2017, two Assessments of Attendant Care Needs (“Form 1s”) authored by occupational therapist Janelle Love-Miles were submitted to the respondent. The first Form 1 quantified the applicant’s attendant care needs at $4,575.39 per month from July 2, 2016 to January 31, 2017. The second Form 1 quantified his needs at $1,344.62 from February 1, 2017 to present (the applicant’s claim for this hearing is until the two year mark of July 1, 2018).

9On May 1, 2017, the respondent advised the applicant by letter that, upon review of the Form 1s, they agree to pay for “incurred services described in the form to the maximum amount of $3,000/month for the period of July 2, 2016 to January 2017: and [as] of February 1, 2017, the amount of attendant care per month will be $1,344.62”.

10Section 19 of the Schedule provides that ACBs 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 these benefits on a balance of probabilities: see Scarlett v. Belair Insurance, 2015 ONSC 3635.

11The applicant submits that he should receive retroactive payment of attendant care benefits for the full amounts set out in both Form 1s on the grounds that his needs were not attended to as required for the periods set out in both Form 1s and he incurred reasonable and necessary goods and services which have not been paid.

12The respondent submits that they paid for the attendant care portion of the invoice from Latitude in the amount of $1,050.00 on August 17, 2016. The respondent also submits that, as they have agreed to pay the ACBs to the maximum allowed by the Schedule until January 31, 2017, and then to the amount recommended in the second Form 1, the applicant’s ACBs have never been terminated. Rather, the respondent submits that the only dispute regarding the applicant’s ACBs is whether they have been incurred as defined by the Schedule. I agree. The evidence indicates that the respondent approved the ACBs as quantified in the Form 1s and subject to the $3,000 monthly maximum for a non-catastrophically impaired person, according to the Schedule. The question that remains is whether the ACBs have been incurred as is required by the Schedule.

Were the ACBs Incurred?

13Section 3(7)(e) of the Schedule provides that a person has “incurred” an attendant care expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.

14The definition of “incurred” in s. 3(7)(e) sets out two categories of attendant care providers:

a. professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and

b. non-professional service providers.

15Pursuant to s. 3(7)(d)(iii)(B) of the Schedule, if the ACBs were provided by a non-professional service provider, he, she or they must have sustained an economic loss as a result of providing the goods and services to the insured person.

16The applicant submits that the ACBs in dispute have been incurred by the following:

i. Trinity Hospital

ii. Latitude

iii. The applicant’s grandmother

iv. Elaine Shay

a. Trinity Hospital

17The applicant refers to invoices from Trinity Hospital in Minot, North Dakota in the amount of $117,578.29. The applicant submits that some services provided by Trinity Hospital (such as room and board, and bedside care services) are attributable to attendant care.

18The respondent submits that the amount of the one Trinity Hospital invoice that they received from Trinity is in the amount of $51,511.17, and did not include attendant care services, but services that would appropriately be classified as medical services under s. 15(1) of the Schedule. The respondent requested, by letters dated August 26, 2020 and February 18, 2021, that Trinity Hospital provide an itemized list and cost of any attendant care services incurred by the applicant. The requested list was never received by the respondent.

19Upon review of the invoices from Trinity Hospital, I note a total of $53,590.29 in itemized expenses. The respondent submitted that they only received the invoice for $51,511.17. It is unclear from the submitted documentation how the applicant arrived at the amount of $117,578.29. Nevertheless, I agree with the respondent that the services itemized in those invoices appear to be in respect of medical benefits. There was no evidence presented which satisfied me to the contrary. As such, I conclude that no attendant care benefits are attributable to Trinity Hospital.

b. Latitude

20The invoice from Latitude, dated July 4, 2016 is in the amount of $18,001.00. Although the invoice was not itemized, the respondent submits that they later made requests of Latitude as to what portions of that invoice were for ACB services. On August 8, 2016, Latitude advised the respondent the breakdown of the invoice of $18,001.00 consisted of $14,449.00 for all medical equipment and the bedside-to-bedside services, $1,750.00 for the cost of the pilot, $1,050.00 for the cost of the medical crew and $752.00 for the cost of the ambulance. The respondent then paid the amount of $1,050.00, deeming that to be for attendant care services.

21Although it would seem that any incurred ACBs would be categorized under bedside-to-bedside services and may exceed the amount of $1,050.00 that was ultimately paid by the respondent under the cost of the medical crew, the applicant did not provide any evidence or submissions that this was the case. Therefore, I am satisfied that the amount of $1,050.00 paid to Latitude with respect to Latitude is all that the applicant is entitled to.

c. The applicant’s grandmother

22The applicant submitted that, after the applicant’s admission to the Norfolk General Hospital, his grandmother attended the hospital on a daily basis and assisted him by providing emotional care and support. After the applicant was released from the Norfolk Hospital, he lived with his grandmother where she assisted him with such tasks as “obtaining required equipment (wheelchair, [Versaframe] for toilet, tub transfer [bench]) and medication.”

23The respondent submits that they have not received any evidence in support of a promise to pay the attendant care expenses of the grandmother as required by s. 3(7)(e)(ii) of the Schedule.

24I agree with the respondent in this matter. The applicant has not provided a breakdown of the benefits incurred by the grandmother, nor any indication of the grandmother’s economic loss in providing the attendant care to the applicant. As such, I find that no ACBs are payable with respect to the grandmother’s services to the applicant.

d. Ms. Elaine Shay

25The applicant submits that Elaine Shay (“Ms. Shay”), a retired nurse, assisted the applicant in securing the applicant’s admission to Norfolk General Hospital as well as attending with him at the Brantford General Hospital for his orthopaedic consult.

26The applicant submitted Ms. Shay’s journal which documents her efforts to assist the applicant from July 2, 2016 to August 4, 2016.

27While Ms. Shay’s journal reveals a detailed record of her assistance to applicant, and her undoubtably valuable support to the applicant, no evidence was provided with respect to any economic loss which was incurred by her efforts, nor that she provided those services in the course of her employment, occupation, or profession in which she would ordinarily be engaged but for the accident. As such, I find that, pursuant to s. 3(7) of the Schedule, no ACBs were confirmed as incurred. Therefore, no ACBs are payable for the services of Ms. Shay.

Deemed Incurred ACBs

28The applicant submits that if the Tribunal determines he has failed to prove any of her expenses incurred, it should find the expenses deemed incurred under s. 3(8) of the Schedule. Section 3(8) authorizes the Tribunal to deem an expense incurred if the expense was not incurred due to the unreasonable withholding or delayed payment of a benefit.

29The applicant has not established circumstances that would justify deeming her ACBs incurred. I see no evidence of unreasonably withheld or delayed benefits. The respondent submitted correspondence to the applicant on May 1, 2017, October 2, 2017, August 26, 2020, February 18, 2012, May 13, 2021, October 27, 2021, February 1, 2022, April 4, 2022 requesting invoices from the service providers and proof of economic loss sustained by the same. I see no adequate responses to these requests.

30As I have found that the respondent approved ACBs pursuant to the Form 1s submitted (subject to the non-catastrophic limit of $3,000 per month), that the respondent requested confirmation that the ACBs were incurred and that the applicant failed to submit that subsequent confirmation, I find that the respondent has not unreasonably withheld or delayed payments of ACBs.

31To conclude, the respondent did not unreasonably withhold or delay the payment of benefits to the applicant. There is no evidence that would enable the Tribunal to deem his ACBs incurred.

32Based upon the above, I find that no ACBs are payable.

Interest

33As no benefit is payable, no interest is payable.

Award

34Section 10 of Regulation 664 (the “Regulation”) provides that the Tribunal may make an award if the respondent has unreasonably withheld or delayed payments.

35In summary, the applicant submits that he is entitled to a 50% award under s. 10 due to the respondent’s unfounded bad faith denial of ACB in breach of the respondent’s breach of duty of good faith to the applicant.

36The respondent submits that an award is not called for because it adjusted the applicant’s claims in accordance with the findings of its independent OT assessor, paid within, or sometimes in excess of, the incurred ACB based on invoices submitted to it.

37I make no award. On the evidence before me, I find that payment was not unreasonably withheld or delayed by the respondent.

38The respondent approved the applicant’s claims of ACBs as proposed by the Form 1s, subject to both the maximum monthly limit for non-catastrophically impaired persons and proof of those ACBs being incurred. The withholding of the ACBs until evidence of the same being incurred does not constitute unreasonable withholding or delaying of payment.

39I therefore find that there is no basis for an award under s. 10 of the Regulation.

ORDER

40The applicant is not entitled to any payment for ACBs, in addition to the amounts already paid by the respondent.

41The applicant is not entitled to interest.

42The applicant is not entitled to an award.