Stewart v. The Co-Operators Insurance Company, 2025 CanLII 61177

Stewart v. The Co-Operators Insurance Company, 2025 CanLII 61177

Citation: Stewart v. The Co-Operators Insurance Company, 2025 ONLAT 23-011844/AABS

Licence Appeal Tribunal File Number: 23-011844/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:

Cody Stewart

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Tamara Gostek, Counsel

For the Respondent:

Daniel M. Himelfarb, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Cody Stewart (the “applicant”) was involved in an automobile accident on August 7, 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 Co-operators General Insurance Company (the “respondent”) 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 the housekeeping and home maintenance (“HH”) benefits in the amount of $93.00 per week from May 11, 2023, and ongoing?

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

RESULT

3I find that:

i. The applicant has established entitlement to weekly HH benefits in the amount of $93.00 from May 11, 2023, to date and ongoing. However, he is not entitled to payment of the benefit from May 11, 2023, to date because he has not proven that the benefit has been incurred.

ii. The respondent is not liable to pay an award.

ANALYSIS

Background

4The applicant was involved in a serious accident on August 7, 2021, where he sustained significant injuries. The applicant was taken from the scene of the accident via ambulance to Hanover Hospital and then, due to the severity of his injuries, he was transported to St. Michael’s Hospital by helicopter. The clinical notes and records (“CNRs”) of St. Michael’s Hospital show that the applicant sustained a traumatic brain injury (“TBI”), major neurocognitive disorder, hemorrhagic brain contusion, a subarachnoid hemorrhage, a thoracic aorta intimal tear (which required surgery), multiple bilateral rib fractures and a lacerated spleen. As a result of his TBI, the applicant remained in a coma for nearly a month, and was discharged to Toronto Rehabilitation Institute for brain injury rehabilitation on September 14, 2021. The applicant was subsequently discharged from Toronto Rehabilitation Institute on October 2, 2021.

5The applicant has also been diagnosed with psychological impairments and has been diagnosed with chronic pain syndrome, for which he is receiving nerve block and trigger point injections.

6The respondent has accepted that the applicant as having sustained a catastrophic (“CAT”) impairment under Criterion Four on March 23, 2023, as a result of the accident. However, the respondent takes the position that the applicant has made a significant recovery since 2021 and is functioning well on a day to day basis.

Housekeeping and Home Maintenance Benefits

7I find that the applicant has demonstrated that he suffers a substantial inability to perform the HH tasks that he normally performed prior to the accident. However, the applicant is not entitled to payment of HH in the amount of $93.00 per week from May 11, 2023 to date, because he has not proven that the benefit has been incurred.

8Section 23 of the Schedule provides that reasonable and necessary HH benefits are payable to catastrophically injured persons who suffer a substantial inability to perform the HH tasks that they normally performed prior to the accident. HH benefits are capped at the rate of $100.00 per week.

9The applicant argues that his ongoing physical, cognitive, and psychological injuries prevent him from engaging in the majority of his housekeeping tasks. He argues that prior to the accident, he shared grocery shopping, sweeping, vacuuming, cooking, dusting, laundry, cleaning the washrooms, cleaning up after his children, taking out the garbage and recycling, and pet care for their dog with his wife, and that he did the outdoor maintenance such as mowing the lawn, snow removal, lawn care, and gardening. The applicant argues that following the accident, he is unable to perform these tasks, and as his wife is overwhelmed with not only having to take care of five children but him as well, he had no other choice but to hire a professional cleaner, Ms. Carol Jackson, for housekeeping services.

10To this end, the applicant relies upon the s. 25 occupational therapy and in-home assessment report by Ms. Sasha Stewart, occupational therapist (“OT”), dated November 5, 2021; the psychological assessment report of Dr. Andrei Kozlowski, psychological associate, dated January 4, 2022; the section 44 report of Dr. Abdul-Wahab Khan, physiatrist dated August 17, 2022; the s. 44 OT in-home assessment report by Ms. Nancy Van Loenen, OT, dated September 19, 2022; the CNR of Dr. Hugh Perrin, family physician; the s. 44 CAT OT in-home assessment report by Ms. Melanie Robbins, OT, dated March 2, 2023; and the s. 25 in-home assessment report by Mr. Justin Moy, dated August 17, 2023.

11The respondent argues that the applicant is more functional than portrayed in his hearing submissions, as surveillance footage and photographs show him driving, walking to the park with his children, running errands at the mall and grocery store, lifting a baby seat into his car, taking out the recycling, and mowing the lawn. The respondent further argues that the applicant testified at his Examination under Oath (“EUO”) that his wife was primarily responsible for indoor housekeeping chores prior to the accident with the exception that they would share grocery shopping tasks, and that the applicant testified he was not responsible for outdoor maintenance. It argues that his testimony at the EUO is at odds with his reporting to various assessors (Mr. Moy, Dr. Khan, and Ms. Loenen) and his position at this hearing.

12To me, it is clear from the medical records that the applicant requires HH services. I am alive to the respondent’s position that there is not a single record that supports that the applicant has a substantial inability to perform his pre-accident HH tasks. I do not concur because Dr. Kozlowski, Ms. Stewart, Mr. Moy, and Dr. Rowe have all concluded that the applicant is restricted from performing these tasks, had a lower moderate disability as a result of his TBI and requires HH assistance. For example, on December 1, 2021, Dr. Kozlowski opined that the applicant had not yet achieved physical recovery and as such, remained restricted from performing all facets of his pre-accident routine. On November 5, 2021, Ms. Stewart, opined that as a result of the changes to the applicant’s cognitive and psychological functioning, he required assistance with cleaning the kitchen, wiping counters, dusting upper and lower areas, washing the dishes, mopping, sweeping the floors, removal of garbage, recycling, laundry, grocery shopping, and outdoor maintenance.

13On March 2, 2023, s. 44 assessor, Dr. Gillian Rowe, neuropsychologist opined that the applicant had demonstrated impairment in speed of processing, learning and memory, and various areas of executive functioning, which were most apparent when tasks were complex, time-limited, involved a large amount of material, and when he was in either physical or emotional distress. As a result, Dr. Rowe concluded that the applicant had a lower moderate disability in accordance with the GOSE-E evaluation. On August 17, 2023, Mr. Moy concluded that assistance with housekeeping tasks was recommended because the applicant demonstrated significant difficulty with bending at the lumbar level in sitting or standing positions to access lower levels, demonstrated decreased standing and walking postures with frequent weight shifting observed, and right and left hand grip were found to be significantly below age and gender norms.

14I place significant weight on the opinions of Dr. Kozlowski, Ms. Stewart, Mr. Moy, and Dr. Rowe because they are also corroborated by the CNRs of the applicant’s family physician, Dr. Hugh Perrin. Indeed, on October 11, 2022, Dr. Perrin noted that the applicant was not “able to work around house” and “not able to help around house”, and that when he completed some vacuuming tasks, this resulted in back pain. On February 10, 2023, Dr. Perrin noted that the applicant could not load dishes in the washing machine without aggravating his back, but he was able to wash dishes at the sink.

15Moreover, the CNRs of Dr. Perrin document ongoing issues with memory, concentration, headaches, chronic pain (which resulted in a referral to a chronic pain clinic where he was diagnosed with chronic pain syndrome and is receiving weekly trigger point and nerve block injections), and significant psychological difficulties. In my view, these significant impairments as documented in Dr. Perrin’s CNRs support the applicant’s position that he is substantially unable to perform the HH tasks he did prior to the accident especially where it has been noted that he was unable to help with HH without having pain, has significant cognitive, physical, and psychological impairments, his chronic pain specialist, Dr. David D. Souza, opined that the applicant’s lower back range of motion was moderately restricted due to pain, and his treating neuropsychologist, Dr. A. Snaiderman, concluded on April 11, 2024, that the applicant continued to require daily personal support worker (“PSW”) support because of his complex psychosocial and cognitive deficits.

16I acknowledge that requiring PSW support is not akin to requiring HH assistance, however, I find that since the applicant’s impairments are such that he requires daily PSW support, on a balance of probabilities, it is unlikely that he is able to complete his pre-accident HH tasks.

17In short, contrary to the respondent’s position, I find that there is ample evidence to establish that the applicant is substantially unable to perform his pre-accident HH tasks.

18I also place little weight on the s. 44 reports of Dr. Khan and Ms. Loenen’s that opine the applicant does not suffer a substantial inability to perform his pre-accident HH tasks. First, Dr. Khan conducted objective testing which revealed reduced range of motions in the cervical spine, lumbar spine, and left shoulder, yet he concluded that the applicant was not precluded from completing his pre-accident HH tasks. Second, Dr. Khan concluded that the applicant had no accident-related diagnoses or associated impairments, despite the extensive records diagnosing the applicant with extensive physical injuries such as multiple fractures, an aortic tear necessitating surgery, and chronic pain syndrome, requiring weekly trigger point and nerve block injections. Third, Ms. Loenen opined that there were inconsistencies between the applicant’s self-reporting and the surveillance but she did not clarify these inconsistencies with the applicant during the assessment, nor did she consider the fact that surveillance cannot show the level of pain the applicant was experiencing at that time or his documented memory issues.

19Next, the respondent argues that the applicant is not entitled to HH benefits because he was not responsible for the majority of the HH tasks prior to the accident. The basis for this rationale is because the applicant testified at his EUO that his wife was primarily responsible for the indoor HH tasks, with the exception of grocery shopping which they shared prior to the accident, and that his landlord was responsible for the outdoor maintenance. I am not persuaded by these arguments because I agree with the applicant that the extensive medical documentation demonstrates that he has significant issues with memory, focus and concentration.

20Indeed, these memory deficits are noted in the CNRs of Dr. Perrin and his treating neuropsychologist, Dr. Snaiderman. The applicant has also reported these concerns to the various ss. 25 and 44 assessors, and Dr. Rowe opined that the applicant had an impairment in speed of processing, learning and memory, and various areas of executive functioning. Therefore, I agree with the applicant that the alleged inconsistent reporting at the EUO can be explained by his memory issues, and does not detract from his self-reporting of the various HH tasks he did prior to the accident to Ms. Stewart, Dr. Khan, Ms. Loenen, Ms. Robbins, and Mr. Moy.

21Notably, during these five separate occasions, the applicant reported that he was responsible for the following tasks prior to the accident: grocery shopping, sweeping, vacuuming, cooking, dusting, laundry, cleaning the washrooms cleaning up after his children, taking out the garbage and recycling, and pet care for their dog (these tasks were shared with his wife and brother-in-law), and that he did the outdoor maintenance such as mowing the lawn, snow removal, lawn care, and gardening.

22The applicant has also produced a lease and letter from his landlord which corroborates his evidence that he was responsible for the outdoor maintenance tasks. Upon review of the lease and letter, I note that both support that the landlord was not responsible for outdoor maintenance tasks such as snow removal and lawn care, and to the best of the landlord’s knowledge, the applicant was responsible for these tasks. I place significant weight on this evidence because it supports the applicant’s self-reporting to the five assessors noted above, and clarifies his evidence given at the EUO. As noted above, the applicant has documented memory deficits and therefore his evidence on one occasion at the EUO, that the landlord was responsible for outdoor maintenance holds little weight especially where he reported to five assessors otherwise and has produced other corroborating evidence from his landlord.

23I am alive to the respondent’s argument that the letter from the landlord should be given no weight because it was only provided after the denial and the landlord was never questioned. I am not persuaded by these arguments as there is no requirement to produce this letter prior to the HH denial and the respondent has not referred me to evidence to establish that it took steps to conduct a cross examination or even required one.

24In my view, I am also not persuaded by the respondent’s argument to conclude that the applicant is not entitled to HH because he reported on one occasion that he was not responsible for HH tasks prior to the accident, especially where his memory, focus and concentration concerns are well documented by not only his treating practitioners but the respondent’s s. 44 assessor, Dr. Rowe, and his evidence is corroborated by the lease and letter from the landlord.

25I am also not persuaded by the respondent’s argument that since the applicant did not object during the EUO or correct his answers then he has not met his onus that he was doing outdoor home maintenance prior to the accident. I agree that the applicant should have taken steps to correct his answers following the EUO. However, I am not persuaded by the respondent’s position to find that the applicant is not entitled to HH because on one occasion at an EUO he testified that his landlord did outdoor maintenance. This is especially so where the applicant has documented cognitive impairments, reported to the vast majority of the assessors otherwise and produced corroborating evidence from his landlord.

26In a similar vein, I am not persuaded by the respondent’s position that the applicant is not entitled to HH benefits because he was not responsible for the majority of the HH tasks prior to the accident. To support its interpretation of s. 23, the respondent relies upon the authority of Atkinson v. Economical Mutual Insurance Company, 2023 CanLII 91458 (ON LAT). I am not bound by previous Tribunal decisions, and I disagree with the interpretation that in order to be entitled to HH benefits under s. 23, the applicant has to be responsible for the majority of the HH tasks prior to the accident. Rather, s. 23 clearly states that the test for HH is that the applicant must have a CAT impairment that results in a substantial inability to perform the HH tasks that he normally performed before the accident. Thus, there is no requirement under s. 23 of the Schedule, that the applicant has to perform the majority of the HH tasks prior to the accident, rather if he has a substantial inability to perform the tasks that he normally performed before the accident, he meets the test for HH. In my opinion, it would be contrary to the consumer protection nature of the Schedule to interpret s. 23 as suggested by the respondent especially where there is no such requirement in the Schedule.

27I also find that the surveillance footage and photographs conducted from May 8, 2022 to May 20, 2022, July 13, 2022 to September 7, 2022, and June 9, 2023, to June 14, 2023, does not negate my finding that the applicant is entitled to HH benefits.

28I acknowledge that the applicant is seen lifting several items, driving, walking with or without an outdoor walker, taking out the recycling and mowing the lawn; however, in my view, this footage and photographs shows a brief snapshot and not a whole picture of the applicant’s functional ability to complete his HH tasks on a daily basis. This is because surveillance footage and photographs cannot depict the level of pain the applicant is experiencing or whether he can complete these activities on a daily basis.

29Significantly, I note that out of the 21 occasions surveillance was conducted, the applicant only completed recycling tasks and mowed another individual’s lawn on one single occasion. Moreover, I note that the applicant required assistance from another individual to remove the lawn mower from his vehicle. I further note that the applicant’s lawn was unkept and he was not once seen mowing his own lawn. Further, Dr. Rowe on March 2, 2023, reviewed the surveillance and maintained her opinion that the applicant had a lower moderate disability in accordance with the GOSE-E evaluation.

30Also, the CNRs of Dr. Perrin and the applicant’s treating neuropsychologist, Dr. Snaiderman show that the applicant was able to perform some HH tasks on certain days when he had sufficient pain relief after receiving weekly injections as noted in the CNRs of May 26, 2023 and June 28, 2023. However, as documented in the CNRs from September 29, 2023, to April 11, 2024, the applicant’s TBI and psychological impairments deteriorated significantly. As a result, on April 11, 2024, Dr. Snaiderman opined that the applicant required daily PSW support services.

31The respondent also argues that the surveillance footage and photographs show that the applicant is more functional than he reports, and therefore his credibility is impacted. I acknowledge that on May 9, 2022, May 20, 2022, August 25, 2022, and June 13, 2023, the applicant is seen lifting a baby car seat, his outdoor walker, several recycling bins, and a large bag of soil which the respondent argues is contrary to his self-reporting to various assessors and therefore affects his credibility. I do not concur because the applicant has reported to Ms. Loenen that prolonged lifting aggravated his lower back pain, not that he was unable to complete any lifting tasks. I acknowledge that the applicant reported to Ms. Robbins that he was only able to complete light lifting, however as noted above, the applicant has documented memory issues, and therefore I am not persuaded that these inconsistences in the evidence is due to credibility issues and are rather due to his TBI.

32The respondent further argues that the applicant is seen walking without a walker and driving which is inconsistent with his reporting to various assessors. I disagree, from May 8, 2022, to May 20, 2022, the applicant was only seen on a few occasions without a walker and spent the vast majority of time using one especially when picking up his children from school or doing other activities around the community. The only times he was seen without a walker was during a brief interval when he crossed the street, and in his driveway. Therefore, I disagree that the applicant was inconsistent with respect to his walker when he reported to Dr. Khan, Dr. Hines and Ms. Loenen on June 21, 2022, July 4, 2022, and August 25, 2022, that he used his walker when outside his home and for community outing.

33Moreover, Dr. Khan reviewed the surveillance footage, and when asked by the respondent if there were any contradictions, he made no comments with respect to the applicant not using a walker on some occasions. Further from July 13, 2022, to September 7, 2022, the applicant was seen with a walker except for one occasion on August 25, 2022. To summarize, I disagree that the applicant’s reporting with respect to his walker is inconsistent because he largely used one from May 8, 2022 to September 7, 2022.

34I further acknowledge that the applicant was seen without a walker in the recent surveillance conducted on June 9, 2023, to June 14, 2023. However, the respondent has not referred me to any evidence during this or after this time-period, where the applicant’s self-reporting was inconsistent with the surveillance. Rather on August 17, 2023, the applicant reported to Mr. Moy that he used a outdoor walker for long distances. Meanwhile, the surveillance footage shows the applicant using no walker to walk short distances to get mail, walking from the school driveway to the front to pick up his children, and walking in several plazas to pick up pizza, get groceries or fill up his gas.

35I further acknowledge that the surveillance footage from 2022 to 2023 does show the applicant driving on various occasions which is at odds with his reporting to various assessors, however this inconsistent evidence is irrelevant to the issue of whether he suffers a substantial inability to perform his HH duties, as his ability to drive has no relation to his pre-accident HH duties.

36However, although I have determined that the applicant has proven his eligibility for the benefit, he is not entitled to payment because he has not proven that the benefit has been incurred pursuant to s. 3(7)(e) of the Schedule. The language in s. 23 of the Schedule is clear that an insurer is only liable to pay for incurred HHs. Section 3(7)(e) of the Schedule defines 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 incurred HHs on a balance of probabilities. Here, the applicant relies upon a statutory declaration from Ms. Jackson and receipts to demonstrate that he incurred $558.00 from April 1, 2023, to May 6, 2023 in HH services.

37I find that the applicant has not met the first prong under s. 3(7)(e) because there is limited evidence to establish that Ms. Jackson completed the tasks that the applicant normally performed prior to the accident. I concur with the respondent that it is not responsible for paying HH services that were not normally performed prior to the accident by the applicant, as this is clear from the language in s. 23. Problematically, the applicant provided no submissions on the exact tasks that Ms. Jackson completed, and the evidence tendered does not assist me in this regard. For instance, the receipts provide no information on what services were provided by Ms. Jackson, and rather contain the dates, and the amount paid per week. Likewise, the statutory declaration completed by Ms. Jackson is of little probative value as minimal information was provided on what tasks she completed from April 1, 2023, to May 6, 2023. Rather, Ms. Jackson noted that she was completing HH tasks because of the applicant’s involvement in the accident, however this does not provide me with the information required to determine whether these HH tasks were normally performed by the applicant prior to the accident. Therefore, I find that the applicant is not entitled to the $558.00 amount from April 1, 2023 to May 6, 2023.

38With respect to the time period of May 7, 2023, to date, the applicant has provided no submissions or referred me to evidence to establish that he has incurred HH services. I note that in the statutory declaration Ms. Jackson declared that she provided HH services until June 22, 2023, however I have not been provided with any proof that he paid for, promised to pay for, or became legally obligated to pay for, the service to which the expense relates, as required by the Schedule. Likewise, the applicant made no submissions, nor did he tender evidence to support that his family members sustained economic loss during this time period. As a result, I find that the applicant has not met his onus in proving that HHs have been incurred from May 7, 2023, to date.

39For the above-noted reasons, the applicant is not entitled to payment of HHs in from May 11, 2023, to date, because he has not proven that the benefit has been incurred.

The respondent is not liable to pay an award

40I find that the applicant has not met his evidentiary onus to establish that he is entitled to an award or interest.

41Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The test for a s. 10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

42The applicant argues that the respondent ignored the numerous reports which confirmed the type of housekeeping he was engaged in before the accident, and instead relied upon his testimony at the EUO. Further, the applicant argues that even after receiving the lease and letter from the landlord, the respondent maintained its denial of HH benefits. Finally, the applicant argues that the respondent did not accept that he was CAT based on his OCF-19, and required him to attend further examinations, and that he has had an “uphill battle” with the insurer from the onset.

43The respondent argues that an award is not warranted because it has adjudicated the claim fairly and responsively in accordance with the evidence received.

44I find that the applicant has not established that the respondent unreasonably withheld or delayed payments of his HH benefits. This is because a differing of opinion regarding entitlement to HH does not establish grounds for an award claim. Here, the respondent relied upon the testimony given by the applicant at the EUO, and the applicant did not raise any issues with this testimony until his submissions. Moreover, I disagree that the respondent ignored the applicant’s self-reporting in the various ss. 25 and 44 reports, but rather it relied upon the applicant’s own testimony at the EUO. Further, the respondent taking a difference of opinion with respect to the lease and letter from the landlord does not establish that its behavior rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Rather, the respondent disagreed that the lease and letter from the landlord rose to the level of establishing entitlement to HH benefits. It is well-settled that insurers are not held to a standard of perfection in their adjusting decisions and that a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.

45Finally, the fact that the respondent did not accept the applicant as CAT based on his OCF-19 and required insurer’s examinations does not rise to the level of warranting an award because s. 45(3)(b) clearly states that this can be done.

46For all these reasons, I find that the respondent is not liable to pay an award or interest.

ORDER

47For the reasons outlined above, I find that:

i. The applicant has established entitlement to weekly HH benefits in the amount of $93.00 from May 11, 2023, to date and ongoing. However, he is not entitled to payment of the benefit from May 11, 2023, to date because he has not proven that the benefit has been incurred.

ii. The respondent is not liable to pay an award.