Licence Appeal Tribunal File Number: 21-015648/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:
Gail Spencer
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Tara L Lemke, Counsel
For the Respondent:
Stephen Whibbs, Counsel
HEARD:
By written submissions
OVERVIEW
1Gail Spencer, the applicant, was involved in an automobile accident on July 29, 2021, 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 in the amount of $3,000.00 per month from September 9, 2021 to ongoing?
ii. 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?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $942.19/month in attendant care benefits from December 9, 2022 and onwards.
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest.
ANALYSIS
Attendant Care Benefit (ACB)
6Section 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 ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
Quantum
7In a letter dated August 20, 2021, the respondent approved attendant care up to the non-Catastrophically Impaired (CAT) limit of $3,000.00 per month. This was based on a Form-1by Sandeep Kaushik, occupational therapist, that was received by the respondent on August 10, 2021. He assessed the applicant’s attendant care needs at $10,468.76 per month.
8At the respondent’s request, the applicant submitted a new Form-1 dated December 9, 2022 also by Mr. Kaushik. Her attendant care needs were re-assessed at $942.19 per month.
9The Form-1 of the respondent, dated April 18, 2023 by Danielle Reich, occupational therapist, assessed the applicant’s attendant care needs at $763.37 per month.
10According to the applicant, there is no evidence of changes between December 2022 and April 2023 that warrant a decrease in the quantum of attendant care. She notes that the main difference between the Form-1s of Mr. Kaushik and Ms. Reich are the minutes allotted under Level 3. She submits that given her functional limitations, the Form 1 of Mr. Kaushik should be preferred and the quantum of attendant care should remain at $942.19 per month.
11The respondent relies on the Form-1 by Ms. Reich which calculates the ACB quantum at $763.37, but makes no submissions on why this Form 1 should be preferred over Mr. Kaushik’s Form-1 from December 9, 2022.
12The dispute on quantum centres on the allotment of minutes for Level 3 care. The applicant’s Form-1 by Mr. Kaushik is accompanied by an Occupational Therapy Reassessment of Attendant Care Needs Report which provides reasons for each allotment of minutes. The following reasons are given for the minutes allotted for exercise:
(a) Assistance is required to implement an exercise program regimen to avoid unsafe movements and promote good recovery. Ms. Spencer still has trouble going for walks outside her home. She requires supervision to regularly complete a walking program to improve her tolerances.
(b) 20 minutes approximately in total per day were allotted to an exercise and walking regimen for five days a week.
13The Occupational Therapy Reassessment of Attendant Care Needs Report also mentions that the applicant continues to use a 4-wheeled walker inside her home. This observation shows that the applicant has stability issues when walking.
14The Form 1 of Ms. Reich allots no time exercise but provides no reasons or insight for this.
15In my view, the Occupational Therapy Reassessment of Attendant Care Needs Report establishes that there is a need for supervision while the applicant walks for exercise as recommended by Mr. Kaushik. Consequently, I find that the Level 3 minutes allocated for exercise are reasonable and necessary.
16The report gives the following reasons for the Level 3 minutes allotted to bathing:
(a) Assistance is required to wash hard-to-reach areas like lower leg and back, as well as for drying the client after showers. Further, assistance was also required to clean up the equipment and area after use. She continues to use. She continues to use the bath bench to transfer into the shower area and completes the activity in sitting position.
(b) 10 minutes per day have been assigned for the entire activity.
17Mr. Kaushik performed an in-person assessment and determined that the applicant required assistance for bathing and drying herself in her lower leg and back. Again, the Form-1 by Ms. Reich allots no minutes, but provides no explanation on why no minutes were allotted. Consequently, I find that 10 minutes per day, seven times per week for bathing and drying is reasonable and necessary because this allotment of attendant care is explained and justified in Mr. Kaushik’s report.
18Mr. Kaushik allots 10 minutes per week for the maintenance of equipment and supplies for the following reasons:
(a) Assistance is required to monitor the safety of equipment and to ensure proper functioning on an ongoing basis.
(b) 10 minutes once per week were attributed to this part.
19On the face of it, 10 minutes per week to monitor the safety and ensure the functioning of the applicant’s equipment appears reasonable. Ms. Reich allots 5 minutes for the same item of attendant care, but provides no explanation for this allotment. As such, there is no evidence before me that meaningfully undermines the recommendation in the applicant’s Form-1. For these reasons, I find that the allotment of 10 minutes for maintenance of equipment and supplies is reasonable and necessary.
20The applicant’s attendant care benefit is calculated as follows based on my findings on the applicant’s Form-1:
Level 1: $459.17/month
Level 2: $210.70/month
Level 3: Exercise 20 min/day x 5 days= 100 min/week
Bathing 10 min/day x 7 days = 70 min/ week
Maintenance 10 min/ week = +10 min/week
Total 180 min/week
180 min/week divided by 60 = 3 hrs
3 hrs x 4.3 = 12.9 hrs/month
12.9 x $21.11/hr = $272.32/month
Total: $459.17 + $210.70 + 272.319 = $942.19/month
21I find that the applicant is entitled to $942.19/month in attendant care benefits from December 9, 2022 and onwards.
22In summary, there is no dispute that the applicant was entitled to an ACB of $3,000.00 per month from August 10, 2021 to December 8, 2022. Based on the analysis above, I have found that the applicant is entitled to an ACB of $942.19 per month from December 9, 2022 and ongoing.
Incurred attendant care and interest
23According to the applicant, the invoices for attendant care dated August 31, 2021 and September 15, 2021 were paid by the respondent. The invoices for October 15, October 31, December 15 and December 31, 2021 were not paid. The invoices for September 30, November 15 and 30, 2021 were only partially paid.
24The applicant submits that the respondent refuses to pay these invoices in accordance with the Superintendent’s Guideline No. 01/18: Attendant Care Hourly Rate Guideline (“Guideline”) issued by Financial Services Commission of Ontario (FSCO). She points out that the Guideline provides a means calculating the monthly benefit for incurred attendant care expense. The Guideline does not determine the actual rates for attendant care to be paid by the respondent. This is also confirmed by the Bulletin A-03/18 (“Bulletin”) also issued by FSCO.
25The applicant cites the Guideline:
The maximum hourly rates to be used with the Assessment of Attendant Care Needs (Form 1) to calculate the monthly attendant care benefit payable are set out below…insurers shall use the resulting monthly attendant care benefit amount to pay the benefit.
26According to the applicant, the maximum hourly rates only apply to calculating the monthly attendant care benefit for the purposes of completing the Form 1. She submits that insurers must “revert to the question of whether the rate is reasonable and necessary” and whether the total amount being invoiced exceeds the amount on the Form 1.
27The applicant further submits that the respondent cannot refuse to pay or partially pay invoices for attendant care because the hourly rate of the service provider is greater in the Form 1 as doing so in inconsistent with the Guidelines.
28The respondent submits that it is not liable to pay an hourly rate that exceeds the maximum rate set in the Guidelines.
29Additionally, respondent notes that the invoices provided by the applicant do not provide a breakdown of the time spent for each level of attendant care in the Form 1. Consequently, the respondent relies on the “ratio method” used in S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) to calculate the amounts payable. This method is explained in the letter of the respondent dated October 21, 2021:
As there is no detailed breakdown of what services was provided in those hours, we will review the invoice as a percentage or “ratio” based on Form 1. The hours listed in the invoices will be assigned attendant care rate according to the ratio of the hours per month allocated in part 1, 2, and 3 of the form 1 that was submitted.
30The respondent calculated the ratio of time in the Form 1 dated August 20, 2021 as follows:
13.86% of the hours for Level 1
78.55% of the hours for Level 2
7.59% of the hours for Level 3
31The respondent applied the above ratio to the hours of attendant care invoiced by the service provider and paid attendant care according to the amount of time and the rate allocated to each level.
32According to the respondent, this approach is consistent with the method found in paragraph 19 of the Divisional Court’s decision in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (“Malitskiy”).
33The respondent also relies on Daly v. ING Halifax Insurance Company, 2006 CanLII 42548 (ON CA) in which the Court of Appeal found that insured persons can dispute the number of hours of attendant care provided, but not the hourly rates on a Form 1.
34I agree with the applicant that the wording in the current Guideline establishes a means of calculating the monthly benefit and does not dictate the maximum rate to be paid for attendant care. This is made clear in the Bulletin:
The Attendant Care Hourly Rate Guideline has been revised to require that the maximum hourly rates set out in the guideline be used with the Assessment of Attendant Care Needs (Form 1) to calculate the monthly attendant care benefit in accordance with section 19 (2) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS).
Previous guidelines could be interpreted to strictly apply the maximum hourly rates as the maximum payable for attendant care services, rather than using the hourly rates to calculate a monthly benefit as was originally intended.
35I also agree with the respondent that there is no requirement in the statutory scheme for it to pay rates that are higher than those used to determine the monthly benefit in the Form-1. The Guideline merely states that “Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.”
36The invoices in evidence list three different rates for attendant care. The applicant argues that there is no evidence that “the rate” is unreasonable. She also argues that the invoices do not exceed the amounts on the Form 1.
37In my view, the applicant has not established that the rates in the invoices are reasonable because she provided no evidence to support such a finding.
38Moreover, even if the applicant established that the invoiced rates are reasonable marketplace rates for attendant care, the applicant still has not shown how the statutory scheme and related instruments give the Tribunal the authority to determine the rates payable for attendant care. The Schedule only provides the Tribunal a means of calculating the monthly benefit.
39The only invoices for attendant care in evidence cover the period from August 16, 2021 to November 30, 2021. These invoices list the hours of attendant care provided and the rates which vary between $33.50 to $37.00 per hour. The invoices do not provide a breakdown of the three levels of care from the Form 1. Under these circumstances, the respondent was unable to determine the amount of attendant care received by the applicant for each level of care in the Form 1. As noted above in paragraphs 26 and 27, the respondent applied the ratio method to determine the benefit payable.
40According to the applicant, the respondent paid the full amount of the invoices dated August 31 and September 15, 2021. The applicant submits that the respondent paid the invoices dated September 30, November 15, and November 30, 3021 using the ratio method.
41The applicant also submits that the invoices dated October 15, and October 31, 2021 have not been paid. This submission is inconsistent with the respondent’s letter dated March 10, 2022 which states that payment has been issued for the October 2021 invoices using the ratio method.
42No other invoices for attendant care are in evidence.
43I reviewed the invoices issued between August 31 and November 30, 2021 and determined that the respondent either paid the invoices in full for or paid the invoices using the ratio method during this period.
44Both parties entered into evidence a balance summary dated February 11, 2022 by Second Family Care, the company that provides attendant care to the applicant. The summary covers the period of August 31, 2021 to January 31, 2022.
45The balance summary shows that invoices dated December 15 and December 31, 2021 are unpaid. However, these invoices are not in evidence. The summary does not show the type or the quantity of service that was provided to the applicant in December, 2021. Consequently, I find that there is insufficient information to determine if there is an outstanding balance for incurred attendant care from December, 2021.
46The applicant provided a letter from the respondent dated July 28, 2023 which shows that the respondent paid invoices for attendant care from January, 2022 to April, 2023 using the ratio method. The respondent also reports paying interest for these past due amounts.
47As such, there is no evidence of the respondent not paying for incurred attendant care between August, 2021 and onwards.
48The applicant made no submissions on the interest payments covering the period from January, 2022 to April, 2023. Consequently, there is no basis to consider her entitlement to any further interest.
49For these reasons, I find that the applicant is not entitled to any outstanding payments for incurred attendant care. I further find that no interest is payable pursuant to section 51 of the Schedule.
Is the respondent estopped from changing the calculation of attendant care?
50The applicant relies on the two part test for estoppel in Bradfield v. Royal Sun Alliance Insurance, 2019 ONCA 800 (CanLI) (“Bradfield”):
a. the insurer must have knowledge of the facts that support a lack of coverage; and
b. unlike waiver, there must be "a course of conduct by the insurer upon which the insured relied to its detriment"
51The applicant submits that the respondent paid two invoices in full and she had no reason to think that further invoices would not also be similarly paid. The respondent changed how it calculated attendant care in January, 2022. As a result, she incurred a significant outstanding balance for attendant care.
52The respondent submits that the Financial Services Commission of Ontario decision in Abuhana Quraishi v. Belair Insurance Company Inc., 2002 ONFSCDRS 176 establishes that estoppel only applies when, among other factors, an insurer unequivocally waives a known right. In Quraishi, the insurer never waived the right to reassess a claim. In light of this decision, the respondent submits that it is allowed to re-assess the ACB invoices and apply the ratio method.
53I note that the recommendations made in Form-1 dated August 10, 2021 were accepted by the respondent in its letter dated August 20, 2021. The invoices dated August 31 and September 15, 2021 were paid in full. In a letter dated October 29, 2021 the respondent advised the applicant that invoice dated September 30, 2021 would be paid using the ratio method. As such, about 30 days passed between the issuance of the invoice and the respondent’s notification that it would proceed to calculate the amount of ACB payable according to the ratio method.
54I find that the facts in Bradfield are markedly different from the facts in this case. In Bradfield a trial judge erred by inferring that the insurer had knowledge of an insurance policy breach for three years, between 2006 and 2009, before denying coverage. On appeal, the Court of Appeal found that the insurer did not have actual knowledge of the breach until 2009, and therefore, was not estopped from denying coverage. In this case, a month passed before the insurer notified the applicant that it would be using the ratio method to calculate the amount of ACB payable. These are far less compelling circumstances than those in Bradfield and, in my view, do not warrant the application of estoppel.
Award
55The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
56The applicant submits that the respondent has systematically denied payment of incurred attendant care. She also submits that the respondent’s actions have resulted in significant harm to the applicant who has had to rely on the assistance of family members instead of receiving care from professional providers. According to the applicant, she cannot access attendant care at the market rate and the respondent has benefitted by not having to pay the ACB. The applicant argues that these factors justify an award.
57The respondent submits that the threshold for an award is high. According to the respondent, the applicant has not specified the basis for an award, nor met the “high burden” to justify an award. In any event, the respondent was entitled to rely on “IE reports.”
58As noted above, a detailed review of the invoices, balance summary from the attendant care provider, and other documents do not show that the respondent withheld monthly ACB payments.
59I disagree with the respondent’s position on the quantum of the ACB. Even so, the respondent relied on the Form 1 of Ms. Reich. As such, its position is evidence based, and in my view, cannot be described as unreasonable.
60For these reasons, I find that the respondent is not liable to pay an award.
ORDER
61The applicant is entitled to $942.19/month in attendant care benefits from December 9, 2022 and onwards.
62The applicant is not entitled to the payment of any outstanding balances for attendant care, nor interest.
63The respondent is not liable to pay an award.
Released: May 22, 2024
Harry Adamidis
Adjudicator