Expenses for ACB Not Shown to Be Incurred - Y. D. v Aviva Insurance LAT 16-001810

July 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Y. D. v Aviva Insurance         LAT 16-001810

Date of Decision: June 22, 2017
Heard Before:  Cezary Paluch

Payment for Attendant Care: Were expenses incurred? Lack of paperwork; husbands job would not normally be the care of his wife;

YD was in a car accident on December 23, 2015.  She claimed statutory benefits from Aviva Aviva, but when a dispute arose regarding her entitlement to attendant care benefits and for payment of a cost of examination. YD proposes ACBs are eligible for coverage because they were properly “incurred” as the service provider was an accredited medical physician, YD’s husband, SD. In the alternative, YD argues that Aviva should be estopped from taking the position that the ACBs were not “incurred” as Aviva initially paid the benefits from December 23, 2015 until May 22, 2016. Simply put, YD says, it would be inequitable or in bad faith to permit Aviva to change their opinion that SD no longer fit in within the accepted class of service providers.

Aviva submits that the ACBs are not eligible for coverage because they were not “incurred”.  Aviva essentially advances two main arguments in support of its position. First, that there was no legal obligation between YD and the service provider to pay for the service rendered.  Second, SD’s services did not fit within either class of attendant care providers that the legislation requires.

Aviva acknowledges that the initial adjuster on the file incorrectly handled YD’s file by misinterpreting s.3(7)(e) of the Schedule and agreeing to fund the monthly ACBs which were paid from December 23, 2015, until May 22, 2016. Several months later, upon further review of the file, Aviva, changed its position and held that the submitted expenses did not meet the definition of an incurred expenses in s. 3(7)(e) of the Schedule.

Issues:

1. Is YD entitled to attendant care benefits in the amount of $6,000.00 per month for the period May 23, 2016 to July 27, 2016?
2. Is YD entitled to attendant care benefits in the amount of $1,797.00 per month for the period July 28, 2016 to December 31, 2016?
3. Is YD entitled to the cost of examination in the amount of $1,971.78, treatment plan dated June 27, 2016, for in-home assessment and attendant care needs?
4. Is YD entitled to interest on any overdue payment of benefits?
5. Can the LAT use an equitable remedy such as estoppel by convention to prevent the enforcement of provisions in a statute in appropriate circumstances?

RESULT:

1. YD is not entitled to attendant care benefits claimed because she has not proven on a balance of probabilities that she incurred the expenses for this benefit as required by the Schedule.
2. The cost of examination for an attendant care assessment is not reasonable and necessary.
3. The equitable remedy requested by YD lies beyond the scope or authority of the LAT to award.
4. The appeal on interest must be dismissed.

The Schedule authorizes ACBs to pay for reasonable and necessary expenses incurred to hire someone to help with self-care activities that an insured person is unable to perform as a result of their accident related injuries. Such activities are understood to include bathing, grooming, dressing, feeding, ambulating, supervisory care and toileting.  The amount of a monthly ACBs is determined in accordance with a worksheet mandated by statute used to calculate the services being Form 1.

On December 30, 2015, an occupational therapist, assessed YD’s attendant care needs and completed the Form 1 and concluded that YD would require considerable aid with her personal care activities including 722.4 hours of assistance payable at $9,081.36 per month. YD chose to have attendant care provided by a family member, her husband, SD, who happened to be a medical doctor rather than a traditional third-party arm’s-length service provider.

On January 8, 2016, in response to the Form 1, Aviva began to pay the ACBs in the amount of $3,000.00 as this would be the normal policy limits for someone who sustained non-catastrophic injuries. On April 14, 2016, with respect to receipt of an Expenses Claim Form (OCF-6) dated March 21, 2016, Aviva requested proof of economic loss sustained by SD by requesting employment information or pay stubs before or during the period the attendant care services were completed.

It stands to reason that Aviva would request this information as the Schedule was changed in 2010 to require proof of economic loss after previously not requiring an applicant to show that the attendant care provider sustained an economic loss.

On April 19, 2016, Aviva stated that the initial explanation of benefits letter contained a mistake and the proper amount of the benefits under YD’s policy was $6,000.00 (not $3,000.00) as she had purchased the optional coverage. Therefore, while the Form 1 amount was $9,081.31 per month, the maximum benefit payable under the Schedule was $6,000.00 per month.

On June 14, 2016, after an Insurer’s Examination, a new Form 1 was completed by an occupational therapist, who concluded that YD no longer required an aide to complete her personal care duties and the monthly ACBs were calculated as $0.00. ACB’s would not be paid for any incurred expenses past June 30, 2016. On July 27, 2016, another occupational therapist, hired by YD, completed another updated Form 1, and concluded that YD demonstrated insufficient physical tolerances to complete self-care tasks independently and recommended that she receive attendant care assistance calculated at $1,797.02 per month. On August 4, 2016, YD filed her application to the Tribunal for dispute resolution as required by the Insurance Act.
The Arbitrator reviewed the evidence and the law. He noted that in order to receive ACBs, an expense must be incurred. The Arbitrator reviewed all the receipts and paperwork entered as evidence. He noted the testimony of SD, who testified that he provided the attendant care to YD and was “constantly at her beck and call” especially during the acute phase of her injury.  He conceded that YD’s son also provided care to her from time to time but it was SD who was the primary caregiver and there was no other person hired to provide attendant care. SD reviewed the list of the specific tasks that the occupational therapist set out in the initial Form 1 and confirmed that he provided this type of care to YD. Similarly, with respect to the second Form 1 of July 27, 2016, prepared by LL, SD stated that he started to provide reduced care at the rate of $1,792.01 per month. SD also testified that his wife gradually made progress in terms of her self-care and became totally independent by the end of 2016.

When asked about the ACE Form that he signed and whether it was a standard form, SD responded: “That I provided, yes.”  When asked whether in October 2016, in fact, he provided 426 hours of supervisory care, he replied: “Probably”.  When asked to quantify whether he spent the number of hours he claimed his answer was “The amount of time I can’t quantify.” When asked in re-examination by YD’s lawyer, whether there was any way to measure how much time he was providing attendant care to his wife, SD, explained that it was actually impossible to measure. He said: “Without having a timer there, clocking in and out, it is impossible.”

The Arbitrator noted that there were discrepancies and insufficient evidence regarding the services claimed by YD versus the actual services provided by SD (at least from July 2016 onwards), and the absence of key information with respect to material issues required to be proven.  The legislative history of the Schedule makes it clear that the amendments were designed to provide a system of checks and balances on attendant care. The attendant care benefit is intended to reimburse an insured person for money expanded to a professional attendant care provider.

Based upon the analysis above, and the evidence taken as a whole, the Arbitrator found that the services allegedly performed by SD were not proven.  In the alternative, if part of these alleged services were performed, they were not performed to the extent or at the cost alleged in the various claims.

The Arbitrator then reviewed the 2 classes of service providers in the Schedule. They are professionals who are typically, though not necessarily, at arms-length from YD; and, YD’s family or friend who sustain an economic loss as a result of providing the service. YD’s husband stands at the cross roads of these two classes of service providers. He was a family member of YD who was also professionally qualified to provide the requisite attendant care services by virtue of his medical profession.

According to YD’s affidavit, her husband SD provided care for her given his abilities as a medical doctor and that she preferred his assistance over an outsider with lesser abilities and qualifications. The Arbitrator noted that SD, and OBGYN, had stopped working at the end of January 2015, and was not seeing patients or providing patient care at the time of the accident in December 2015. He was going to be writing a book when his wife suffered her accident.  He returned to work sometime in August 2016.

The Arbitrator applied a broad interpretation to the legislative provisions in question and accepting that the goal of the legislation is to reduce hardship on accident victims, but was still unable to conclude that YD’s husband’s services fits within the meaning and intent of s. 3(7)(e)(iii)(A). This determination is made after considering carefully all of the evidence including the oral evidence of SD. The legislative provision requires that the service is the product of an employment, occupation, or profession in which YD’s husband would have normally been engaged even if his wife was not involved in a motor vehicle accident.

Having considered all of evidence, and compared the activities and tasks on the Form 1s and job duties of the service provider, the Arbitrator concluded that SD’s normal employment or profession was not the same as caring for his wife. Any other conclusion would ignore that the service provider be ordinarily engaged in providing such services during his or her profession or employment but for the accident.

YD is entitled to an attendant care benefit under this provision if she can show that her husband sustained an economic loss in providing her service. If no such loss is sustained, no ACBs are payable in respect of care provided by a family member, even if the family member provided the care in the course of employment, occupation or profession.

In response to the Court of Appeal for Ontario’s decision in Henry v. Gore Mutual the Schedule was amended to limit the benefit payable to a family member to the amount of economic loss sustained by the family member. There was no evidence adduced to quantify or identify with any certainty any economic loss on a pecuniary or monetary basis.  Keeping in mind that “economic loss” solely remains a factual determination – “a rough check”, and not a means of calculating the actual loss that is required, this evidence was still very vague and the allegations of loss were not quantified or corroborated with any supporting documentation. The Arbitrator did not find that oral testimony of SD alone was sufficient to establish economic loss and the required threshold finding for “incurred expense” was not met.

In the Arbitrator’s opinion, there was insufficient evidence of such economic loss particularly that economic loss should be restricted to monetary or financial loss and not to some expanded or broader definition that encompasses loss of profits or loss of time or loss of opportunity. The onus was on YD to demonstrate an economic loss to date. She has not done so. Therefore, SD did not sustain an economic loss because of providing the attendant care services to YD. Accordingly, this part of the test is also not met.

The Arbitrator concluded that based on the answers to the above three requirements, that there is no period for which attendant care benefits satisfy the requirements of the Schedule because they were not “incurred” and are not eligible for coverage. Therefore, the application before the Tribunal is dismissed.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.