Applicant Fails to show expenses were incurred - WE and Wawanesa Mutual Insurance Company, 2018 CanLII 39471 (ON LAT 17-002054)

June 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant Fails to show expenses were incurred - WE and Wawanesa Mutual Insurance Company, 2018 CanLII 39471 (ON LAT 17-002054)

Date of Decision: March 14, 2018
Heard Before: Adjudicator Paul Gosio

HOUSEKEEPING EXPENSES: applicant makes case that expenses are reasonable and necessary; applicant fails to show that service provider (sister) suffered an economic loss as a result of providing service; no expenses are payable

WE was in a car accident December 30, 2014.  Shortly after the accident, WE began to develop pain in her lower back and right shoulder.  When she could no longer complete the housekeeping and home maintenance tasks that she normally performed before the accident to the standard and frequency that she had done before her sister took a leave of absence from work and helped WE with her those tasks from January 2015 until the end of October 2016.  As a result, WE sought a housekeeping and home maintenance benefit pursuant to the Schedule.

Wawanesa denied WE’s entitlement due to the findings contained in in an OT report dated December 12, 2016.  WE disagreed with Wawanesa’s decision applied to the LAT for arbitration. 

Issues

1. Is WE entitled to receive a housekeeping and home maintenance benefit in the amount of $8,800.00 for the time period from December 30, 2014 to December 30, 2016?
2. Is WE entitled to be reimbursed by Wawanesa for the cost of obtaining WE’s employment file from Joseph Brant Hospital?
3. Is WE entitled to interest on any overdue payment of benefits?

 Result

1. WE has not met her onus of establishing on a balance of probabilities that she is entitled to the benefits claimed.

Under the Schedule, housekeeping and home maintenance benefits are restricted to those who have either sustained a catastrophic impairment or have purchased the optional benefit.  In this case, WE purchased the optional benefit. The test under s. 23 of the Schedule requires a consideration of the following:

1. The housekeeping and home maintenance services that WE normally performed before the accident;
2. Whether WE suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident; and
3. If a substantial inability is found, whether the expenses incurred as a result of that substantial inability are reasonable and necessary.

WE’s affidavit sets out the housekeeping and home maintenance tasks that WE normally performed before the accident.  They include: vacuuming, sweeping and mopping, dusting, cleaning the washrooms, doing the laundry, preparing and cooking meals, grocery shopping, snow shoveling, gardening and mowing the lawn.

WE submits that she suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident due to the pain she experienced in her lower back and right shoulder and that these injuries resulted in her being unable to complete tasks that require her to sit for prolonged periods of time, bend down to levels below the waist, lift or move heavy objects requiring both arms, or complete repetitive movements of her right arm/shoulder.

Based on the medical evidence the Arbitrator was satisfied that WE suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident due to the pain she experienced in her lower back and right shoulder.  WE’s affidavit in conjunction with the medical evidence was persuasive.

Wawanesa’s denial of WE’s entitlement to the housekeeping and home maintenance benefit was based on the findings contained in an OT Assessment Report dated December 12, 2016 which concluded that WE does not currently suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.  Th Arbitrator assigned the OT assessment and corresponding report little weight as it only addresses WE’s functioning at the time of the assessment which was completed on December 5, 2016. His assessment and report provided very little insight into WE’s functioning for the majority of the time period in dispute.

Wawanesa also admitted the Disability Certificate completed April 29, 2015 in support of its denial of the housekeeping and home maintenance benefit which noted that WE was working full time hours and full duties as a registered practical nurse.  Wawanesa submits that this speaks to WE’s functional abilities and is evidence of her ability to perform the housekeeping and home maintenance services that she normally performed before the accident.

The Arbitrator disagreed with Wawanesa’s submission.  WE, by way of her affidavit, provided details of her work related restrictions and explained that she regularly worked through pain.  She further explained that she did not report her restrictions and/or pain to her employer as she was still within the probationary period and wanted to maintain her employment.  WE’s evidence was found to be compelling in this regard.  Her ability to continue working full time hours and full duties as a registered practical nurse within the context that she described does not compel the conclusion that she was able to perform the housekeeping and home maintenance services that she normally performed before the accident.       

 Wawanesa directed the Arbitrator to part 6 of the Disability Certificate wherein the OT indicated that WE did not suffer a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.  WE submits that she provided the OT with details regarding her struggles to complete her housekeeping and home maintenance task and is unsure why the OT “incorrectly” filled out this portion of the Disability Certificate.

After reviewing the totality of the evidence the Arbitrator placed little weight on this portion of the Disability Certificate.  WE applied for accident benefits on April 1, 2015.  Under part 7 of the Application for Accident Benefits, WE described difficult cooking, cleaning, bathing the kids; unable to shovel snow or do yard work; difficulty at work (need to take more pain meds to get through shifts) and difficulty sleeping due to pain in arm and back.

On September 20, 2016 the OT completed a subsequent Disability Certificate wherein she noted that WE was suffering from a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.  She further noted that WE continued to work full time hours and full duties despite the pain she was experiencing because she did not want to jeopardize a potential full time job offering.  The OT went on to explain that WE would benefit from some assistance at home and that this was not discussed in detail at the time the first Disability Certificate was submitted. On this basis the Arbitrator was satisfied, on a balance of probabilities that the objective medical evidence before me, in conjunction with WE’s affidavit, demonstrates that WE was suffering from a complete inability to perform the housekeeping and home maintenance tasks that she normally performed before the accident.

Where the Expenses Incurred?  Section 3(7)(e) of the Schedule sets out the definition of “incurred” and states that an expense is not incurred unless:

1. The insured person has received the goods or services to which the expense relates;
2. The insured person has paid the expense, has promised to pay the expense, or is otherwise legally obligated to pay the expense, and;
3. The person who provided the goods or services:
   1. 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
   2. Sustained an economic loss as a result of providing the goods or services to the insured person.

The Arbitrator was satisfied that WE actually received the housekeeping and home maintenance services provided by her sister and relied on WE’s affidavit and submitted OCF-6s and accompanying forms as being accurate, and that a legal obligation to pay for the services exists.  Although WE has not yet paid for the services provided, she has promised her sister that she will be compensated in the future.  The Arbitrator found that this promise creates the requisite legal obligation contemplated under section 3(7)(e)(II) of the Schedule.

Did the Service Provider Suffer an Economic Loss?

Section 3(7)(e)(III) of the Schedule provides for two different classes of service provider:

1. Professional providers who are typically, though not necessarily, at arms-length from WE; and
2. WE’s family or friend who sustain an economic loss as a result of providing the service.

There is no evidence  to suggest that WE’s sister provided the housekeeping and home maintenance services in the course of her employment, occupation or profession.  As such, WE would be entitled to the housekeeping and home maintenance benefit if she can show that her sister sustained an economic loss as a result of providing her services. The evidence does not establish, on a balance of probabilities, that WE’s sister sustained an economic loss as a result of providing her services.

As such, WE has failed to establish, on a balance of probabilities, that she incurred an expense as required by the Schedule.

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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.