Licence Appeal Tribunal File Number: 22-007856/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:
Maria Noemi Castro Rubio
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
David J Levy, Counsel
For the Respondent:
Kristine Kim, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Maria Noemi Castro Rubio, the applicant, was involved in an automobile accident on September 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General 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 $1,973.47 per month from May 25, 2022 to date and ongoing?
ii. Is the applicant entitled to $2,866.80 for moving expenses proposed by Marla Rosenfeld, submitted February 7, 2023?
3In her submissions the applicant confirmed that the issue of rehab support worker services listed as issue no. [2]2 in the Case Conference Report and Order, has been withdrawn.
RESULT
4The applicant is entitled to incurred attendant care benefits up to $1,192.52 a month.
5The applicant is not entitled to moving expenses.
ANALYSIS
Background
6On September 4, 2015, the applicant and her two children were injured in an automobile accident, when as pedestrians they were struck by a motor vehicle. On January 21, 2021, the applicant was deemed catastrophically impaired (“CAT”) under Criterion 8.
7The applicant’s psychiatric CAT assessor diagnosed the applicant with a neurocognitive disorder secondary to traumatic brain injury, somatic symptom disorder, with predominant pain, persistent, posttraumatic stress disorder, generalized anxiety disorder and major depressive episode in the context of an underlying bipolar 1 disorder. The applicant was found to suffer from marked impairments in the areas of social functioning, concentration, persistence and pace, and adaptation.
8The respondent had previously approved an Assessment of Attendant Care Needs form (“Form 1”) dated April 13, 2021 in the amount of $2,040.59 of monthly attendant care services. From August 2021 to June 2022, the applicant had incurred approximately $400 to $500 per month in attendant care services, when the new Form 1 dated May 25, 2022 was submitted.
Attendant Care Benefits
9I find that the applicant is entitled to attendant care benefits (“ACBs”) in the amount of $1,192.52 per month.
10The Schedule provides that the respondent is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aide or attendant. If a person sustains a catastrophic impairment as a result of an accident, the maximum amount of ACBs payable is $6,000 per month.
11The applicant relies on a Form 1 and Occupational Therapy (“OT”) assessment reports dated July 10, 2020 and June 12, 2022 from her occupational therapist Marla Rosenfeld. Ms. Rosenfeld found that the applicant was still “partially disabled” from completing her pre-accident personal care tasks as she lacked the physical, cognitive and emotional reserves to successfully participate in and complete the majority of her daily pre-accident activities. Ms. Rosenfeld found that the applicant required $1,973.47 in monthly attendant care services.
12The respondent relies on the Form 1 and OT assessment of Susan Javasky and updated reports from Dr. Gratzer, psychiatrist and Dr. Berbrayer, physiatrist. Ms. Javasky found that the applicant still required emotional support and assistance with certain household duties such as cleaning the bathtub, totalling approximately $386.28 in monthly attendant care services.
13The areas of disagreement between the parties are as specified below:
Applicant’s Form 1
Respondent’s Form 1
Level 1
Dressing/Undressing Upper Body
(6 min/3x week)
Occasional Help with overhead clothing and zippers
(0 min)
Food preparation/ Service
(60 min/ 7x week)
Assistance for main meal tasks due to lifting and carrying of heavy items and chopping
(0 min)
Hygiene
(60 min/ 7x week)
Ensures comfort, safety and security in this environment
Level 2
Basic supervisory care
(180 min/ 7x week)
Intermittent daytime cueing and emotional support to initiate and follow through on tasks
(0 min)
Level 3
Exercise
(60 min/ 7x week)
Assistance to ensure initiation/follow through of exercise program including outdoor walks
(0 min)
14In terms of areas of agreement, both parties agree that the applicant requires 10 minutes a day of assistance in hygiene/cleaning tasks although it is allocated slightly differently. The applicant allocates 5 minutes to cleaning the bathroom and 5 minutes to bedroom tasks. The respondent allocates 10 minutes daily to cleaning the bathroom after use. As such, both parties agree that 10 minutes daily is reasonable and necessary for hygiene and cleaning assistance.
15I find that the applicant has led sufficient evidence to establish that assistance in the areas of dressing and undressing the upper body and meal preparation is reasonable and necessary. However, I find that 30 minutes daily for meal preparation is sufficient, rather than 60 minutes daily requested by the applicant.
16The applicant continued to report pain in her back, neck and both shoulders and weakness in her hands to her physiatry assessor Dr. Veronica Kekosz. The respondent’s physiatry assessor Dr. David Berbrayer further noted that while the applicant had good movement in both shoulders, she reported shoulder pain with repetitive movement and rotation of her right shoulder, in addition to neck, thoracic and lumbar spine pain. Given the applicant’s continued reported pain symptoms and chronic pain diagnosis, I find that the proposed 6 minutes of assistance three times a week to help with overhead shirts, bras and zippers to be reasonable.
17With respect to meal preparation, the applicant reported that post-accident she continued to be responsible for meal preparation for herself and the family. She prepares light breakfasts, school lunches and dinner. The requested attendant care assistance is only with respect to the main meal, which I infer to be dinner. Ms. Rosenfeld notes that the applicant reported she could not take heavier items out of the oven and had difficulties chopping and that as a result, the applicant avoided cooking particular food. From the evidence, I find that 60 minutes daily to assist in meal preparation is excessive. The applicant appears to require assistance only with lifting heavier items and some repetitive movements. As such, I find that 30 minutes daily for such meal preparation tasks would be sufficient.
18In terms of emotional support and cueing, both parties agree that the applicant requires such assistance, although it is identified differently in the Form 1s. The applicant further requests three hours a day vs. the respondent’s proposed one hour. I find that the applicant has established that three hours a day of emotional support and cueing is reasonable and necessary.
19The respondent’s psychiatric assessor Dr. David Gratzer opined that from a psychiatric perspective the applicant was not able to perform the personal tasks that she normally engaged in pre-accident. He noted the applicant’s ongoing problems with mood, motivation, energy, focus, concentration and memory. The applicant’s occupational therapist Ms. Rosenfeld found that the applicant required significant 1:1 assistance by way of emotional support, reassurance and cueing to encourage participation and follow-through throughout the day. Ms. Rosenfeld noted that the applicant was informally receiving this assistance daily by reaching out to her case manager, occupational therapist, psychologist and personal support worker by phone and text when she was unable to cope.
20I place significant weight on the assessment and Form 1 of Ms. Rosenfeld. The applicant’s occupational therapist had observed the applicant on a weekly basis and was actively involved in her care. Her observations that the applicant’s daily functioning was severely limited by her daily anxiety, pain and fatigue are reflected in the applicant’s reports to all of the parties’ assessors. Although the respondent’s OT assessor Ms. Javasky found that the applicant was independent in most aspects of her daily functioning, I agree with the applicant that the respondent’s OT assessment for the most part considered the applicant’s physical ability to complete tasks, rather than psychological or emotional considerations.
21In her Form 1 Ms. Rosenfeld recommended three hours of emotional support and cueing throughout the day, one hour each in the morning, afternoon and evening. I find this to be reasonable and necessary, particularly given Ms. Rosenfeld’s reports that the applicant currently reaches out to her various support workers throughout the day and on weekends to receive support and reassurance, at which point she is able to proceed with her day. Ms. Rosenfeld opined that without such ongoing support, the applicant became overwhelmed and unable to function.
22Finally, with respect to the proposed one hour daily of assistance to ensure initiation and follow-through with her exercise program, I find that this is not reasonable and necessary. In her Form 1 Ms. Rosenfeld already proposed three hours of emotional support and cueing to assist in initiation and completion of tasks. In my view, such emotional support and cueing would similarly apply to initiation and follow through of her exercise program and walking. Therefore, I find that this assistance is already provided for in the Form 1.
23As such, I find that the applicant is entitled to attendant care services totalling $1,192.52 a month comprising of:
i. 18 minutes per week for undressing and dressing the upper body;
ii. 210 minutes per week for meal preparation and serving;
iii. 70 minutes per week for bathroom and bedroom hygiene; and
iv. 1260 minutes per week for emotional support and cueing.
OCF-18 for moving expenses
24I find that the applicant has not established entitlement to the treatment plan for moving expenses.
25The applicant submitted a treatment plan in the amount of $2,866.80 for moving expenses following her divorce. She submits that as a result of her accident-related impairments, she did not have sufficient physical, cognitive or emotional abilities to manage the packing and relocating of items during her move.
26The respondent submits that pursuant to s. 16(1) of the Schedule, reasonable and necessary rehabilitative expenses are limited to those listed in s. 16(3) of the Schedule. It argues that moving expenses resulting from a divorce do not fall under any of the subsections of s. 16(3). The respondent further cites Tribunal decisions 17-003087 v Peel Mutual Insurance Company, 2018 CanLII 81877 (ON LAT) and Foster v. Co-operators, 2021 CanLII 134960 (ON LAT) where the Tribunal found that such moving expenses were not payable.
27I agree with the respondent and cited caselaw that the applicant has not met her onus to prove entitlement to moving expenses. The applicant does not dispute that her move was as a result of relocation due to divorce. As a result, the cause of the applicant’s move was not the accident. Rather, it was the sale of her home after her divorce that necessitated the move. As such, I do not find that such moving expenses would fall under the list of rehabilitation benefits payable under s. 16(3) of the Schedule.
Interest
28The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
29I find that:
i. The applicant is entitled to incurred attendant care benefits up to $1,192.52 a month from May 25, 2022 to date and ongoing.
ii. The applicant is not entitled to moving expenses.
Released: August 27, 2024
__________________________
Ulana Pahuta
Adjudicator