Caregiver Benefits Approved Even Though Insured Does Not Cohabit Full Time

January 26, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

V. L. v TD Meloche Monnex – Caregiver Benefits; Treatment plans; Residing with does not mean permanently living with

V. L. v TD Meloche Monnex

Date of Decision: December 16, 2016
Heard Before: Adjudicator Nicole Treksler

V. L. was injured in a car accident on January 21, 2014, and sought caregiver and rehabilitation benefits pursuant to SABs. T.D. Meloche denied caregiver benefits because it alleges V. L. did not and does not reside with his parents to whom he was allegedly providing care and did not provide proof of incurred expenses for caregiver services.

T.D. Meloche also denied V. L.’s rehabilitation benefit for an electric assist motor bicycle in a treatment plan dated May 17, 2016, for the following reasons:

• The proposed goods would not address V. L.’s complaints as they relate to his alleged inability to ride a bicycle; and
• The proposed goods are unreasonably expensive, and there are far more economical options available that would be of greater benefit to V. L..

The onus is on V. L., on a balance of probabilities, to show that he resided with his parents at the time of the accident, has adequate proof of incurred expenses and that the electrical assist motor bike is a reasonable and necessary expense for his rehabilitation.

Issues:

1. Is V. L. entitled to receive a weekly caregiver benefit in the amount of $300 from January 1, 2014 to December 31, 2014?
2. Is V. L. entitled to receive a rehabilitation benefit in the amount of $3,333.50 as set out in a treatment plan (OCF-18) completed by Polyclinic Rehabilitation Institute Inc., dated May 17, 2016?
3. Is V. L. entitled to interest on the overdue payment of benefits?

Result:

1. V. L. is entitled to receive a weekly caregiver benefit in the amount of $300 per week from February 1, 2014 to November 1, 2014.
2. V. L. is entitled to receive a rehabilitation benefit in the amount of $3,333.50 as set as set out in a treatment plan (OCF-18) completed by Polyclinic Rehabilitation Institute Inc., dated May 17, 2016.
3. V. L. is entitled to all applicable interest on the benefits.

V. L. sustained physical and psychological injuries which prevented him from providing care to his elderly parents.  As such, he hired a caregiver, I. M., to look after his parents. For 5 years prior to the accident, V. L. provided caregiver services to his parents on an ongoing, consistent and regular basis. V. L. purchased caregiver benefits as an optional benefit, to specifically ensure that he was covered, in the event he was unable to provide care to his parents.  V. L. does not have any other dependents as his children are adults.  V. L. always sought to live close to his parents. He initially lived 350 meters from his parent’s condominium. As his family grew, he moved to a home 900 metres walking distance from door to door, but a 3 km drive. V. L. indicates that he lived with his parents and his parents lived with him from time to time, including at the time of the accident.

The Arbitrator reviewed the test for caregiving benefits is set out the Schedule which states that:

The Insurer shall pay a caregiver a benefit to or for an insured person who sustains a catastrophic impairment as a result of an accident if, as a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she was engaged at the time of the accident and if, at the time of the accident,

a)   The insured person was residing with a person in need of care; and
b)   The insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

The first issue is whether V. L. resided with his parents at the time of the accident. The second issue is whether V. L. provided adequate proof of expenses.

T.D. Meloche did not challenge that V. L. was the primary caregiver and has not provided any evidence to the contrary.  As such the Arbitrator took the view that T.D. Meloche accepts that V. L. is the primary caregiver in this matter. The Question remains did V.L. reside with his parents? The Arbitrator reviewed the evidence and the law and noted that the term “reside with” is not defined in the Schedule.

TD Meloche argues that that the term “reside with,” in the common or ordinary sense of the words, means that there is an intention to remain in the same residence, whether that is an apartment, condo, detached home, townhome or trailer. T.D. Meloche further asserts that in order for the term to have meaning, there must be some limit. In this case, V. L. lives 900 metres walking distance from door to door, which is a 3 km circuitous drive from his parents’ home.  The two locations are separate residences, on different streets, with different mailing addresses and different postal codes. To conclude that “resides with” is capable of extending over several kilometers would render the term meaningless and create significant uncertainty.

The Arbitrator disagreed with TD Meloche noting neither party presented any evidence to determine what the Legislature intended regarding the residency requirement for caregiver benefits. The legislature could have narrowly defined “reside with,” by adding the word “permanently reside with,” but that was not contemplated. As such the Arbitrator took the view that the term “reside with” must be interpreted on a case by case basis to reflect different family arrangement and dynamics. The Arbitrator was therefore satisfied that V. L. was “residing with” his parents at the time of the accident.

The Arbitrator examined the medical evidence regarding V.L.’s parents and noted that given the nature of V. L.’s parents’ ailments, the level of care that V. L. provided was consistent and regular. V. L.’s parents could not have possibly lived independently without their son’s daily assistance. Irrespective of the level of care that V. L. provided, it is not a determining factor in deciding whether V. L. met the residency requirement. The Arbitrator was convinced that  V. L. intended to live close to his parents in order to provide care for when they would require it—it was part of his culture to do so. In V. L.’s testimony, he indicated that he had lived about 350 metres away, but his family grew so he had to find another home. V. L. testified that he would have lived closer, but the only available home, he could afford, was 900 meters walking distance away. V. L. had the intention to live close to his parents to provide care and lived close enough to provide such care on a daily basis.

Was there adequate proof of incurred expenses?

T.D. Meloche submits that V. L. has not provided any documentary evidence, such as receipts, withdrawals from a bank account, etc. that he had paid for caregiving services.  In addition, T.D. Meloche argued that under the Schedule, I. M. did not provide the services in the course of the employment that she would have ordinarily engaged, but for the accident.  V. L. provided a notarized confirmation of caregiving services signed by I. M. which provided the following information:

1. Length of service: February 1, 2014 - November 1, 2014
2. To whom the services were provided to: V. L.’s parents
3. Type of services provided: safety and supervision, providing company, dressing them, bathing them, food preparation, running errands, taking them to the park, driving them to their appointments, etc.
4. Hours per week: 20

        Hourly rate: $20

T.D. Meloche submits that this documentation was not adequate as it did not leave a paper trail for it to follow and investigate the claim.  As such, this type of documentation prejudices T.D. Meloche. V. L. indicates that there is no paper trail because he paid I. M. in cash. The Arbitrator found nothing in the Schedule which states the form in which incurred expenses must be provided to the Insurer, and accepted V. L.’s documentary evidence. The Arbitrator concluded that I. M. provided care in the course of her employment. V. L. indicated that I. M. had worked for 8 years previously as a nanny for his children. I. M. testified that she ordinarily cleans offices.

Is V. L. entitled to rehabilitation benefit for an electric assist motor bicycle?

Prior to the accident, V. L. regularly commuted to work on his bicycle, his preferred mode of commuting. Since the accident, he had not been able to do so. V. L. provided affidavits from two staff members indicating that V. L. used to come to work by bike and no longer does so. V. L. submits that the he can no longer commute to work on his bike as the pain in his neck, lower back and arms have intensified.  V. L. relied on section 16 of the Schedule which states that rehabilitation benefits shall pay for reasonable and necessary expenses for the “purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.”

r. G, Chiropractor, submitted two treatment and assessment plans, dated May 17, 2016 and June 1, 2016, recommending, amongst other things, an electrical assist bicycle will help V. L. return to his pre-accident lifestyle with little or minimal impact on his neck, lower back and arm injuries.  The parties agreed that the Tribunal will only consider the treatment plan dated May 17, 2016, as the other treatment plan was not listed in V. L.’s application nor was it one of the issues at the case conference.

T.D. Meloche’s position is that the proposed electric motor was not reasonable and necessary based on Dr. JM’s physiatrist report. Dr. JM indicated that the motor would not alleviate the strain placed on V. L.’s wrists and back by cycling. In her report, she indicated that V. L. stated that his pain is exacerbated by sustained postures, which are required by cycling. Dr. JM explains that V. L.’s wrist pain would be exacerbated by supporting his body with his wrists using the handlebars. She suggested a stationary recumbent bicycle, which would alleviate the need to sustain a hunched posture and eliminate the need to support his own body weight with his wrists and arms. T.D. Meloche submits that there is no medical information to indicate that V. L. is unable to pedal a bike. T.D. Meloche argues that there is no correlation between V. L.’s ability to pedal and V. L.’s neck, lower back and arm injuries. Further, T.D. Meloche argues that there are cheaper options available that V. L. can use to retrofit his bike.

In response to Dr. JM’s report, Dr. Gn indicated that V. L.’s bike was fitted to provide him with a vertical seat position to eliminate any forward lean onto his hands and wrists.  Dr. G also advised V. L. to use a lumbar support belt while riding and had a shock absorbing seat installed to minimize lower back compressive forces. Further, Dr. G indicated that the bicycle would provide a significant amount of cardiovascular exercise, as V. L. would only use the motor to provide assistance when he went up hills.

V. L. indicated that the other cheaper options were not appropriate to retrofit his bike. In fact, V. L. attempted to retrofit his bike, but it did not work. As a result, he bought a new bike that was purchased cost much more than the treatment plan. V. L. is content to receive the amount that is indicated in the treatment plan.

The Arbitrator took the view that the treatment plan is reasonable and necessary in order for V. L. to return to his pre-accident status.

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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.