Licence Appeal Tribunal File Number: 22-007124/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:
Sophie Dutrisac
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Éliane Lachaîne, Counsel
For the Respondent: Hermina Nuric, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sophie Dutrisac (the “Applicant”) was involved in an automobile accident on March 13, 2019, and sought benefits from Economical Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Applicant sustained physical and psychological injuries as a result of the accident and claimed entitlement to attendant care benefits (“ACBs”). The Respondent agrees that the Applicant is entitled to ACBs for the period claimed but disagrees over what quantum of the benefit is payable. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the Applicant entitled to ACBs in the amount of $1,542.76 per month for the period from April 7, 2022 to-date and ongoing?
ii. Is the Respondent liable to pay an award under section 10 of Regulation 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
4I find that the Applicant has not demonstrated entitlement to ACBs in the amount of $1,542.76 per month. No award or interest is payable.
5The application is dismissed.
ANALYSIS
6The onus is on the Applicant to demonstrate her entitlement to the benefits claimed.
7Section 19 of the Schedule addresses ACBs. Section 19(2) states that “the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled “Assessment of Attendant Care Needs” that is required to be submitted under section 42” of the Schedule. It further states that the monthly amount is calculated by “multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care and adding the amounts determined under clause 9a), if more than one type of attendant care is required”.
8The Applicant initially claimed entitlement to ACBs in accordance with a Form 1 dated June 4, 2021, which supports entitlement to ACBs totalling $1,536.76 per month. In response via letter dated June 17, 2021, the Respondent agreed to pay ACBs in accordance with the June 4, 2021 Form 1, subject to the incurred provisions outlined in section 3(7)(e) of the Schedule.
9Pursuant to section 3(7)(e) of the Schedule, an expense in respect of goods and services is not incurred unless the person has received the goods or services to which the expense relates, the insured person has paid the expense or promised to pay the expense or is otherwise legally obligated to pay the expense, and the person who provided the goods or services did so in the course of their employment, occupation or profession in which they would ordinarily have been engaged, but for the accident, or sustained an economic loss as a result of providing the goods and services.
10The June 17, 2021 letter from the Respondent also asked that the Applicant return an expense claim form with information regarding the services provided that relate to ACBs. Specifically, it asked for the service provider’s name, address, and phone number, as well as the dates and hours the services were provided and the services performed, together with supporting documentation to confirm the expenses were incurred. There is no evidence before me that the Applicant ever submitted an expense claim form, or the information requested.
11The Applicant submitted a subsequent Form 1, dated May 5, 2022, which supports entitlement to ACBs totalling $1,542.76 per month. While the Respondent approved the form in the online claims submission service, it failed to deliver a letter to the Applicant to confirm this, until September 13, 2022. In the September 13, 2022 letter, the Respondent agreed to pay for ACBs according to the latest Form 1, but repeated its position on the expense being incurred and receiving information on the services provided.
12To-date, the Applicant has provided no expense claim form or invoice demonstrating that she incurred the expense of an aide or attendant. She concedes that she never incurred any expenses relating to ACBs and has never provided the Respondent with an invoice from the service provider or vendor. I acknowledge that the Applicant submitted an email from a vendor, discussing services related to ACBs. It outlines what the service provider proposes to do with respect to invoicing for the goods and services proposed in the Form 1 and asks that the Applicant’s mother confirm her acceptance of the arrangement in a reply email. No reply email was submitted to confirm that the Applicant, or her mother, ever agreed to the arrangement. This is insufficient evidence of an incurred expense, and does not meet the incurred requirements outlined in section 7(3)(e) of the Schedule.
13Accordingly, the Applicant’s only path to receiving payment for ACBs is for me to deem the expenses to be incurred, pursuant to section 3(8) of the Schedule. Pursuant to section 3(8) of the Schedule, the Tribunal may deem an expense to be incurred if it finds that the insurer unreasonably withheld or delayed payment of the benefit. I find that this is not a case to deem the expense to be incurred.
14The Applicant submits that she is entitled to monthly ACBs totalling $1,542.76, regardless of the services provided and the hourly rate of the service provider. She further submits that the Respondent’s failure to reply to her May 5, 2022 Form 1 constitutes the unreasonable withholding or delay of her ACBs. Alternatively, she submits that the Respondent’s position in adjusting her claim for ACBs is not in accordance with the Superintendent’s Guidelines and is thus, unreasonable and leads to the unreasonable withholding or delay of ACBs.
15The Respondent submits that the Applicant is not entitled to ACBs because she has not submitted any invoices for consideration. It further submits that it is not obligated to pay any expenses relating to ACBs that exceed the maximum hourly rate prescribed by the Superintendent’s Guideline. The Respondent submits that there is nothing to suggest that the Applicant had to go without incurring ACBs because she does not have the financial means to cover any difference between the market rate and the maximum hourly rate provided by the Superintendent’s Guideline. It further submits that it is adjusting the Applicant’s claim according to the principles of Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (“Malitskiy”), and that adhering to the letter of the law is not unreasonable, because the law is assumed to be reasonable.
16The Superintendent’s Guideline No. 01/18: Attendant Care Hourly Rate Guideline provides the maximum hourly rates used to calculate the monthly attendant care benefit, in accordance with section 19(2)(a) of the Schedule. This guideline confirms that the maximum hourly rates as follows: $14.90 for level 1, $14.00 for level 2, and $21.11 for level 3. It also states that “… insurers shall use the resulting monthly attendant care benefit amount to pay the benefit.” This guideline applies to all accidents occurring after April 14, 2018.
17The Revised Attendant Care Hourly Rate Guideline and Clarification of Health Care Providers Subject to the Professional Services Guideline (Bulletin No. A-03/18) clarifies the application of the Attendant Care Hourly Rate Guideline. It states that “…the maximum hourly rates set out in the guideline [shall] 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 Schedule. It further states that “(p)revious 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.”
18Malitskiy involved an accident that pre-dated the April 14, 2018 Superintendent’s Bulletin. Its jurisprudence involved a principle for allocating funds to incurred expenses relating to ACBs where the invoices fail to include adequate detail of the services provided. The principle is still applied by some insurers, to-date. Malitskiy is a decision from the Divisional Court and is binding on the Tribunal.
The Applicant is not entitled to ACBs due to a delayed response
19I find that the Applicant is not entitled to ACBs on account of the Respondent’s delayed response to the May 5, 2022 Form 1. Indeed, the Respondent failed to give written confirmation of its approval of the Form 1 to the Applicant for about 4 months; however, this does not automatically entitle the Applicant to ACBs, regardless of whether they were incurred pursuant to the Schedule. It is trite law that insurers are not held to a standard of perfection, and it is accepted that they will occasionally err when adjusting claims. Approving a benefit in the online system but failing to send the written letter to confirm the approval is a reasonable error.
20Even if I were to find that it was an unreasonable error, I find that the error did not result in the withholding or delaying of payment of benefits to the Applicant. The Applicant was approved for up to $1,536.76 in ACBs, according to a Form 1, dated June 4, 2021, which the Respondent agreed to pay for. Yet, the Applicant never incurred any expenses related to ACBs following the approval. From this I infer that funding is not the reason why the Applicant has not incurred any expenses related to ACBs and there is no reason why it would be any different following the submission of the May 5, 2022 Form 1.
21Additionally, there is no compulsory provision in the Schedule that entitles the Applicant to payment of ACBs on account of a delayed response. Typically, the Schedule includes consequences for instances where an insurer fails to give a timely response to a claim for benefits, often codifying the insured persons entitlement to the benefit regardless of whether it is reasonable and necessary, such as in section 38(11)2. However, the process for claiming entitlement to ACBs, as outlined in section 42 of the Schedule, includes no such consequences. If the legislature wanted to include the consequence of making ACBs payable due to a delayed response, regardless of whether they were incurred, it would have codified it like the other benefits. As for the deemed incurred provision under section 3(8) of the Schedule, I have explained why I declined to apply this provision. Accordingly, I find no entitlement to ACBs from a statutory perspective.
Advising the Applicant that it will follow Malitskiy is not an error
22Malitskiy involved an accident that occurred prior to the Superintendent’s Bulletins. In it, the Court found that the insured person was entitled to no more than the maximum hourly rate prescribed by the Superintendent’s Bulletin, despite that rate falling below the minimum hourly wage for employment in the province of Ontario. Malitskiy upheld the Tribunal reconsideration decision which found a balance for claims for ACBs that fail to include adequate accounting of the services provided. The balance involved allocating proportional percentages of the insured person’s entitlement to ACBs to the 3 levels of care.
23The principle outlined in the jurisprudence of Malitskiy can still be applied today and it is not an error to follow it. Indeed, Malitskiy involved an accident pre-dating the changes, it provides guidance on how to adjust claims with inadequate information in the invoices. Advising the Applicant that it will apply the Malitskiy principle is good communication on behalf of the Respondent to manage the Applicant’s expectations. Despite all the above, the principles of Malitskiy do not apply to the Applicant’s case because she has not incurred any expenses relating to ACBs and has not provided any invoices, let alone invoices with inadequate information, for which the Malitskiy principles could be applied.
24Lastly, the Applicant can avoid the application of the Malitskiy principles by providing a detailed invoice for the services incurred. As noted, the Respondent has agreed to pay for ACBs incurred in accordance with the Form 1 dated June 4, 2021 and the Form 1 dated May 5, 2022, and it would not be able to apply the Malitskiy principles if the Applicant provided an adequate account of her expenses related to ACBs. However, she has chosen not to do so. As a result, I find no entitlement to payment for ACBs to-date.
Award
25The applicant sought an award under section 10 of Regulation 664. Under section 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. Having found no benefits were unreasonably withheld or delayed, it follows that no award is payable.
CONCLUSION AND ORDER
26The Applicant is not entitled to payment for ACBs for the period claimed because she did not incur any expenses relating to ACBs pursuant to section 3(7)(e) and 3(8) of the Schedule.
27No interest or award is payable.
28The application is dismissed.
Released: June 14, 2024
Brian Norris
Adjudicator