ACBs Paid at the written Form 1 rate not on disputed verbal rate - Weaver and Aviva

December 15, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Weaver and Aviva

Decision Date: October 13, 2017
Heard Before: Adjudicator Kimberley Parish

ENITLEMENT TO BENEFITS: ACBs applied for; medical benefits; prescription sunglasses considered sunglasses; ACB awarded for the period of the Form 1; insurer not helpful; insured signed forms without reading them; conflicting testimony on what insured was advised of

David Weaver was injured in a car accident on October 11, 2013, when he was the front passenger in a pick-up truck. The driver of the vehicle fell asleep at the wheel and the vehicle rolled over, ejecting Mr. Weaver from it. The vehicle then rolled onto Mr. Weaver, pinning him underneath the vehicle for approximately 45 minutes before he was eventually freed. Mr. Weaver was transported by ambulance to Midland Hospital, and then airlifted to Sunnybrook Hospital where he was treated for broken ribs, pelvis, a torn urethra, and lacerations to his wrists and elbows. He sought accident benefits from Aviva and applied for arbitration at the FSCO when mediation failed.

Issues:

1. Is Mr. Weaver entitled to attendant care benefits in the amount of $3,000.00 per month from October 11, 2013 to January 9, 2014?
2. Is Mr. Weaver entitled to a medical benefit in the amount of $80.00 for an eye examination fee on December 11, 2013?
3. Is Mr. Weaver entitled to payments for damage to clothing, glasses, hearing aids, etc. in the amounts as follows for expenses submitted to Aviva on December 11, 2013:
   1. $400.00 for sunglasses
   2. $75.00 for a pair of jeans
   3. $37.00 for one Harley Davidson t-shirt
   4. $150.00 for a jacket
   5. $120.00 for a pair of shoes
4. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Weaver?
5. Is Mr. Weaver entitled to interest for the overdue payments of benefits?

Result:

1. Mr. Weaver is entitled to attendant care benefits at the rate of $1,483.94 per month from October 16, 2013 to November 30, 2013.
2. Mr. Weaver is entitled to receive to a medical benefit in the amount of $80.00 for an eye examination fee, expense submitted to Aviva on December 11, 2013.
3. Mr. Weaver is entitled to payment for damage to sunglasses submitted to Aviva on December 11, 2013, $400.00 for sunglasses
4. Mr. Weaver is not entitled to payment for:
   1. $75.00 for a pair of jeans
   2. $37.00 for one Harley Davidson t-shirt
   3. $150.00 for a jacket
   4. $120.00 for a pair of shoes
5. Mr. Weaver is entitled to a special award in the total amount of $1,137.69 for attendant care benefits, plus applicable interest thereon from May 1, 2016. Mr. Weaver is further entitled to a special award in the amount of $40.00 for the eye exam and $200.00 for the sunglasses, plus applicable interest thereon from December 17, 2013.
6. Mr. Weaver is entitled to interest for any overdue amounts, in accordance with the Schedule with respect to the benefits found to be payable.

It was Mr. Weaver’s position that because of the injuries sustained from the car crash on October 11, 2013, Mr. Weaver is entitled to ACBs at the rate of $3,000.00 per month from October 11, 2013 to January 9, 2014, for services provided by Mr. McLeod, and that articles of clothing and eyewear were damaged and these expenses should be paid by Aviva. As a result of Aviva’s alleged unreasonable withholding of payment of these benefits, Mr. Weaver was claiming entitlement to a special award.

It is Aviva’s position that the benefits in dispute for this Arbitration have been properly denied and therefore the benefits in dispute are not payable and Mr. Weaver is not entitled to a special award as Aviva has not unreasonably withheld or delayed payment of the benefits in dispute for this Arbitration.

Mr. Weaver is 55 years old, and was self-employed operating a family business involving global exporting of dairy cattle at the time of the accident. Mr. Weaver stated the only physical limitation he had prior to the MVA was low back pain, for which he saw a chiropractor. Mr. Weaver had an opiate and cocaine addiction in 2001, for which he received treatment at a clinic. He is no longer addicted to those narcotics. Mr. Weaver he now takes prescribed opiates to manage his pain from the accident. There is no surgical option for his injuries.

Mr. Weaver was released from the hospital three days after the accident. He remained catheterized for nearly three weeks. He was living alone on a one-floor home, and was unable to provide his own hygiene, dress himself, transfer himself out of bed, do his own laundry, or cook his own meals. Mr. Weaver felt very vulnerable and un safe. He had short-term memory loss following the MVA, and was taking prescription pain medication, and sometimes more than prescribed in an attempt to relieve his pain.

Mr. Weaver testified that Mr. McLeod, a long-time friend arrived shortly after Mr. Weaver’s release from hospital and he agreed to help Mr. Weaver with his attendant care. Mr. Weaver testified that he offered to pay Mr. McLeod for his services. An initial Form 1 was done by an OT. The assessment was arranged by Aviva. Mr. Weaver stated the meeting lasted approximately 90 minutes and he answered and provided information she sought, but he was not asked to demonstrate that he could perform any of the activities which she was assessing. The resulting Form 1 stated Mr. Weaver qualified to receive attendant care services in the amount of $1,483.94 per month.

Mr. Weaver stated that he asked The OT how much he could pay Mr. McLeod for the attendant care which he was providing, and The OT told him he could pay him up to $100.00 per day. Mr. Weaver stated he had not retained legal counsel at the time this initial attendant care assessment was done, and further stated he was not advised by Aviva he could obtain his own assessment of attendant care needs, or prepare a rebuttal to the initial attendant care assessment.

Mr. Weaver stated that from October - December 2013 Mr. McLeod drove Mr. Weaver to his physiotherapy appointments 3 times per week, helped him with picking up groceries, cooking and cleaning. Mr. Weaver stated that to date, he has paid Mr. McLeod $4,500.00 for the attendant care services which he provided from October 14 - November 30, 2013, as noted on the Expenses Claim Form dated December 3, 2013 provided to Aviva on December 11, 2013. Mr. Weaver stated the OCF-6 form claimed ACBs for the period from October 14 - November 30, 2013 but only noted an amount of $3,000.00 because this was the maximum amount his prior legal counsel stated he could claim. Mr. Weaver said this OCF-6 was completed by his prior legal representative’s office, and that he had signed the form without reviewing it.

There was a second attendant care assessment done on December 16, 2013, concluding that his needs were $0. He disagreed with the assessment. Mr. Weaver was ambulating with a walker, and but was still receiving some assistance from Mr. McLeod with lifting heavy items. Mr. Weaver stated when he ran out of money he told Mr. McLeod he promised to pay him for the ongoing attendant care when he received payment from Aviva. Mr. Weaver stated he continued to receive attendant care from Mr. McLeod until January 9, 2014. Mr. McLeod provided him with psychological and physical support. Mr. McLeod stopped providing any attendant care services after January 9, 2014, as he took a job.

Aviva’s counsel, Mr. Keating asked Mr. Weaver why the OCF-6 had noted Mr. McLeod assisted Mr. Weaver with hygiene and dressing for only one week. Mr. Weaver responded he needed attendant care for more than one week and he was unsure why his prior legal representative’s office filled in $3,000.00 for that period.  Mr. Weaver agreed he was provided an opportunity to review the OCF-6 form completed by his prior legal counsel before he signed it. Mr. Keating asked Mr. Weaver why a second OCF-6 had never been submitted to Aviva for ACBs; Mr. Weaver responded that he did not know why, but further stated Aviva had not paid anything for attendant care when expenses were previously submitted.

Mr. McLeod provided full testimony to the tribunal supporting Mr. Weaver’s case. Mr. McLeod testified that he was present during the first attendant care assessment on October 30, 2013, and sat in for approximately 30 minutes of it. Mr. McLeod denied that the O.T. asked Mr. Weaver during the assessment to demonstrate any activities in the house. Mr. McLeod testified that he did not sit in for the second O.T. assessment in December 2013.

The OT was an experience individual who testified that she did not tell Mr. Weaver who he could or could not use as an attendant care provider, and that she did not provide an amount to Mr. Weaver regarding how much he could pay an attendant care service provider. She had testified Mr. Weaver was using a walker when he answered the door for the October 30, 2013 assessment, but this was not noted within her report. The OT denied having a conversation with the attendant care service provider when she was performing the October 30, 2013 assessment. The OT confirmed she had no documentation to review prior to the assessment. The OT agreed that she did not make requests to obtain Mr. Weaver’s medical records, to speak with Mr. Weaver’s family or his family doctor regarding the prescribing of opiates and his prior addiction thereto, or information about how long Mr. Weaver required 24-hour care. The OT said she had observed Mr. Weaver transfer in and out of bed, and she had no concern regarding Mr. Weaver’s ability to do so. The OT stated that Mr. Weaver showed her around his home. The OT stated she did not ask Mr. Weaver how many Percocet tablets he had taken prior to her arriving for the initial assessment in October 2013. The OT testified that she stopped the functional testing during the initial October 2013 assessment because Mr. Weaver was experiencing pain.

Testimony shows that Mr. Weaver required and received 24-hour care during a three-month period following the MVA. Aviva did not send out anyone to perform an assessment of attendant care needs until nearly three weeks following the MVA. The OT admitted that Mr. Weaver initially required 24-hour care and that a retroactive Form 1 could have been completed, but the “Insurer ignored instructing her to do so.” This denied Mr. Weaver the proper assessment of his needs. During both of her assessments, The OT failed to inquire how many Percocet tablets Mr. Weaver took prior to either assessment, or report on the effect they may have had on his performance during the assessments. The OT could not complete formal testing on Mr. Weaver during the October 2013 assessment due to his experiencing right side abdominal discomfort, but The OT testified Mr. Weaver was functional in his lower extremity movement.

Mr. Weaver’s and Mr. McLeod’s uncontested testimony was that Mr. McLeod was paid $100.00 per day for 45 days for the attendant care services, until Mr. Weaver could no longer afford to pay him. Mr. McLeod continued to provide attendant care services, based upon Mr. Weaver’s promise to pay following his receipt of compensation from Aviva.

Upon Aviva’s receipt of an OCF-6 in December 2013, Aviva refused to reimburse Mr. Weaver for the attendant care services he had paid and provided no further explanation.

Aviva claims that Mr. Weaver submitted an OCF-1 dated October 29, 2013. Mr. Weaver testified he was given an opportunity to review his OCF-6 before signing it, but he did not review the document before signing it. Aviva submitted that by signing the form, Mr. Weaver certified that the information provided was true and correct.

On or about December 17, 2013, Aviva sent Mr. Weaver and his prior legal counsel a letter that ACBs were not payable, as the definition of incurred had not been met per s. 3.7(e) of the Schedule, and a copy of this provision was included with the letter.  Aviva submitted that subject to legislated limits, the maximum amount of a monthly attendant care benefit is determined in accordance with an “Assessment of Attendant Care Needs” Form 1, per s. 19(2) of the Schedule and Motor Vehicle Accident Claims Fund v. Veley.[21] Therefore in accordance with The OT’s Form 1s, the maximum quantum of ACBs payable to Mr. Weaver was $1,483.94 per month from October 30 to December 16, 2013, and $0 per month thereafter.

The Arbitrator reviewed all of the evidence and the law and found that Mr. Weaver is entitled to ACBs in the amount of $1,483.94 per month from October 16, 2013 to November 30, 2013. This was the amount noted on the Form 1 dated October 30, 2013. The only other Form 1 completed was for $0, dated December 16, 2013. Both Form 1s were completed on behalf of Aviva.

Mr. Weaver testified that his sunglasses which had prescription lenses were lost in the MVA. He has testified that he needed to get an $80.00 eye exam so he could obtain a prescription to replace them, and provided a receipt dated October 29, 2013 in the amount of $80.00. The Arbitrator found this expense reasonable and necessary. The sunglasses Mr. Weaver lost in the MVA constitute prescription eyewear.

Regarding the remaining items ($75.00 for a pair of jeans, $37.00 for a Harley Davidson t-shirt, $150.00 for a jacket, and $120.00 for shoes) the expenses were not paid as no receipts were provided showing they were replaced.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.