Late and Insufficient Proof of Income Loss Results in ACBs Being Denied - Massicotte and Echelon

July 19, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Massicotte and Echelon

ATTENDANT CARE BENEFITS: ACBs; unclear information provided by applicant; information provided late; incomplete information provided; ACB benefits denied on basis of incomplete and late information

Date of Decision: May 24, 2017
Heard Before: Adjudicator Thérèse-Reilly                                                                             

Issues:

Ms. Angela Massicotte was hurt in a car accident September 30, 2012. She applied for benefits from Echelon, was denied and applied for Arbitration at FSCO.

The issues in this Hearing are:

1. Is Ms. Massicotte entitled to Attendant Care Benefits (“ACBs”) from January 1, 2015 to January 31, 2016?
2. Is Ms. Massicotte entitled to ACBs from February 1, 2016 to February 28, 2017?
3. Is Ms. Massicotte entitled to a Special Award?
4. Is Ms. Massicotte entitled to interest on any amounts ordered?

Result:

1. Ms. Massicotte is not entitled to receive an ACB from January 1, 2015 to January 31, 2016. 
2. Ms. Massicotte is not entitled to receive an ACB from February 1, 2016 to February 28, 2017. 
3. Ms. Massicotte is not entitled to a Special Award.
4. Ms. Massicotte is not entitled to interest.

Ms. Massicotte sustained a Catastrophic Impairment (CAT) as a result of the car accident.  Echelon paid Ms. Massicotte’s $6000 a month in attendant care benefits (ACBs) in 2014, but has made no payments since January 2015.  Ms. Massicotte claims she is entitled to payment of $6000 a month for ACBs for two periods from:

1. January 1, 2015 to February 1, 2016, for services provided by Ms. Melissa Chapin, and
2. February 1, 2016 to date and ongoing for services provided by Mr. Brendan Lafontaine

Echelon maintains Ms. Massicotte has not met her burden of proving economic loss for either service provider. Moreover, Ms. Massicotte is not entitled to payment of ACBs from January 1, 2015 to date and ongoing due to her failure to provide information as reasonably requested by Echelon under sections 33 and 46.2 of the Schedule, as noted below. Echelon maintains the quantum is $3,793.46 per month.

The onus is on Ms. Massicotte to prove that she is entitled to an ACB as sought. ACBs are provided under section 19 of the Schedule. Section 19 states that ACG shall pay for all reasonable and necessary expenses that:

1. that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility….

The Schedule goes on to define maximum benefit amounts, and to also specifies that:

1. an aide or attendant for a person includes a family member or friend who acts as the person’s aide or attendant, even if the family member or friend does not possess any special qualifications…..

(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. (my emphasis)

Ms. Massicotte lives in North Bay with her teenaged children. She no memory of the car accident, and testified she has a brain injury. She was hospitalized in Tennessee following the accident for two weeks, and then for a month in North Bay. She has had various medical treatments including treatment by a psychologist, physiotherapy treatment, speech therapy, and occupational therapy. Some of the treatments were provided in Toronto. She attends the appointments with the service providers. At the time of the Accident she was a self-employed IT consultant. She is no longer self-employed as an IT consultant.

 Ms. Massicotte has two service providers (attendants) who help her with daily activities, medical appointments, and the children. She attends appointments in Toronto and North Bay. She sees and OT monthly. She claims ACB for the attendants and in her submissions, Ms. Massicotte takes the position that economic loss need only be proven once.

Her attendants are a father/daughter pair. The daughter, Ms. C, worked at a restaurant and the YMCA for $12.62/hr prior to working for Ms. Massicotte.  Ms. C now works full time retail for $14/hr but still works for Ms. Massicotte. Her father Mr. L helps with appointments and other duties. He also works part time at a restaurant. She knows both from before the accident.  Ms. C had known Ms. Massicotte for 10 years. He wages for the last several years were submitted to the court for review. Ms. Massicotte’s in her submissions, concludes that attendant care services were provided to Ms. Massicotte by Ms. C and that she left her paid employment at the restaurant in 2013 to provide care to Ms. Massicotte. She also took on part-time work at Sears in 2014 and earned $6,568.42. If she had not been working with Ms. Massicotte at that time, Ms. C would have obtained additional part-time jobs. It is on this basis that she has sustained an income loss.

Ms. R is a neighbour who testified at the hearing that following the car accident Ms. Massicotte changed, and was no longer the confident woman and good mother she once was. She easily become overwhelmed feeling anxious, withdrawn and Ms. R fears for Ms. Massicotte’s welfare in an emergency. Ms. M is an OT who presented an overview of Ms. Massicotte’s condition indicating that she has TBI, headaches, an injured right eye, blurred vision, dizziness, balance issues, memory problems and anxiety. Ms. M noted that Ms. Massicotte is easily overwhelmed.

She conducted an in-home assessment of Ms. Massicotte and prepared a Form 1 - Assessment of Attendant Care Needs and an in-home assessment report, dated April 16, 2013. In this report, Ms. Maurice stated Ms. Massicotte required assistance with medication, with feeding, and with mobility (for stairs); however, the majority of the time she allotted on the Form 1 was for 24-hour supervision.  The total Form 1 cost was in the amount of $7,735.69.     

An IE completed in May 2013 concurred that Ms. Massicotte required 24-hour care. Ms. M reassessed Ms. Massicotte in 2015 and her opinion remained unchanged that Ms. Massicotte required 24-hour care for safety. The IE done in July of 2015 indicated that Ms. Massicotte required 12 hours a day supervision.

Echelon maintains Ms. C’s income documents on pre-MVA do not demonstrate an economic loss beyond April 2014.  Ms. C made more money after April 2014 than in 2012. The income documents also do not demonstrate an economic loss in 2015 in that she earned more money in 2015 than in 2014.

Ms. Massicotte submits that if the Arbitrator finds there is an ongoing need to prove economic loss, the requirement is met for the period of January 2015 to February 1, 2016 in that Ms. C would “have maintained other employment while working at Sears, or taken on more hours there, but did not do so because she was providing attendant care to Ms. Massicotte. Her work history of holding more than one job at a time supports her evidence in this regard.” The expense for attendant care for Ms. C from January 1, 2015 to January 31, 2016 is therefore incurred. 

Echelon noted that Ms. C in testifying had difficulty recalling specific dates of employment, hours worked and income received. She could not recall details of her date of promotions, wage increases and other jobs she claims to have had. She reported only T4 income from the restaurant and the YMCA. Echelon submits that Ms. C provided no documentation regarding her employment at the YMCA until the week prior to the Hearing. This is contrary to section 33 of the Schedule as will be discussed below. As well, Echelon, in its submissions, concludes that Ms. C has not demonstrated an economic loss beyond April 2014. In fact, it maintains she actually earned more money in 2015 than she did in 2014, and she had commenced a full-time position working in a field relating to her career goals. Echelon concludes economic loss is not proven.

Echelon states it overpaid Ms. Massicotte’s ACBs in 2014, but that it is not seeking a repayment. Further, Ms. C could have established an economic loss if she had turned down the full-time position at Sears but she did not. Echelon asked Ms. C to provide an authorization to obtain employment information from Sears. The authorization is signed February 15, 2016.

Mr. L testified that he has provided attendant care services to Ms. Massicotte from February 1, 2016 to the present. He also testified that in providing attendant care, he was “always there for her” and that he was on call 24/7. He testified that he worked at a restaurant prior to working for Ms. Massicotte where he earned $13.50 an hour and his hours varied between 15-30 hours each week. He started at the restaurant in 2012 and stopped working there at the end of January 2016 in order to start work with Ms. Massicotte. He maintains full-time hours were available to him in 2016 but he did not take on the additional hours. In 2015, he worked at the North Bay hospital during the summer. He was also a student at Nipissing University until December 2015.  

His tax return for 2015 and T4 slips for the restaurant and hospital were not provided to Echelon until two weeks before the Hearing. These show he earned a total income in 2015 of $13,496.11. Since February 1, 2016, he has not earned other income except for 3 shifts for a taxi company. Massicotte’s representative stated that Mr. L left his paid employment to provide attendant care for Ms. Massicotte and he earned less in 2016 than in 2015, earning zero income after 2016. As such, he suffered an economic loss because of providing attendant care to Ms. Massicotte and the expense is incurred. Ms. Massicotte accordingly submits that she is entitled to the ACB for the time period from February 1, 2016 to date. 

Echelon states Mr. L produced his 2015 income tax return two weeks prior to the Hearing, and his T4 income from the restaurant at $5,891.11. He also reported $7,605.00 in T4 income from another company, which he testified was a summer job doing testing of fire alarms. Mr. L testified that he did not return to work for that company in the summer of 2016, and that after he graduated from university in 2015, he was offered full-time work, which he turned down to work for Ms. Massicotte.

Mr. MM, an adjuster with Echelon, testified the ACB was stopped because Echelon learned the service provider at that time had stopped working at the restaurant and in July 2015, Echelon received a document that Ms. C had changed employment and was now working at Sears.  Echelon needed more financial information to determine an economic loss. He asked for financial statements from Ms. C under section 33 of the Schedule to confirm income as Ms. C was now working at Sears. He obtained a release from Ms. C to obtain employment information from Sears.    He testified that it was not until February 2017 that he received necessary income information from Mr. L. He did not have time to review the information before testifying.

Mr. MM testified that numerous requests were made for updated income information from the Service Providers and this was necessary to establish economic loss. Counsel for Ms. Massicotte in a letter, dated July 6, 2015, affirmed to Echelon there was an ongoing incurred expense and that Ms. C continued to provide attendant care. A letter from Sears, dated June 18, 2015, was attached to the July 6, 2015 letter and it seems reasonable that some notice was provided at this time to Echelon of the employment with Sears.   

Echelon states it paid Ms. Massicotte’s ACB at the rate of $6,000.00 per month for 2014. Echelon maintains Ms. Massicotte failed to disclose employment information in response to its requests for supporting documentation in 2015. Moreover, it maintains Ms. C did not provide further information regarding her economic loss until July 16, 2015. In that letter, Ms. Massicotte, for the first time, advised Echelon that Ms. C was working part-time at Sears, and that her economic loss arose from turning down the opportunity to work full-time. Sears provided Mr. MM a letter from dated June 1, 2015, stating that Ms. C had been offered full-time hours “over the past year.”

Echelon submits that Mr. MM’s requests for information were reasonable and necessary to determine Echelon’s liability to pay the ACB, and whether Ms. C had sustained an economic loss.  Echelon submits that in 2015, Ms. C failed to advise Echelon that she was working full-time at Sears. Ms. Massicotte submitted an OCF-6, dated September 8, 2015, for ACBs provided through to August 2015, it did not disclose the change in employment to Echelon.

Pursuant to section 33 and 46.2 of the Schedule, and as a result of Ms. Massicotte’s and Ms. C’s failure to provide the requested documentation, Echelon outlines an additional reason relating to the denial of the ACB as of September 30, 2015 (11 business days following the September 15, 2015 request letter) to February 23, 2017. It is Echelon’s position that Ms. Massicotte, and Ms. C on her behalf, are still in non-compliance with sections 33 and 46.2 for the failure to provide a signed statement from Ms. C with respect to her employment details, an authorization for the Sears employment file (which was provided subsequently), and information required to determine Ms. Massicotte’s entitlement to the benefit. Accordingly, Ms. Massicotte’s ACB remains suspended. The benefits as claimed until February 1, 2016 are not payable.

Echelon states that Mr. L submitted his 2015 income tax return on time but that it revealed that he had also worked at another company Echelon was not not advised. Mr. L did not clarify until his testimony at the Hearing that he has not returned to work at the other company since he began providing attendant care to Ms. Massicotte. Echelon maintains that had Mr. L provided his 2015 income tax return and a signed statement confirming that he had not returned to any employment as a result of caring for Ms. Massicotte, Echelon could have confirmed the economic loss and paid the benefit, if payable.

Both Ms. Massicotte and Echelon referred to Several previous FSCO decision with regard to the quantum of benefits, and the Arbitrator reviewed them in conjunction with the other evidence and the Regulations.

The Arbitrator noted that the onus is on Ms. Massicotte to prove that she is entitled to an ACB as sought. Echelon resists payment of the ACB on the basis that they were not “incurred” within the meaning of section 3(7)(e) of the Schedule and allegations of non-compliance as per sections 33 and 46(2) of the Schedule, with the result that no ACBs are payable.

Ms. Massicotte maintains that if economic loss can be shown at any time after the MVA, the economic loss threshold has been met for all periods after the MVA. Ms. Massicotte maintains the decision in Henry has been interpreted by Arbitrators and Judges in subsequent decisions to assert that if a single economic loss is sustained by a non-professional service provider, all ACBs listed in the Form 1 are payable.

Echelon, on the other hand, maintains it is not sufficient to show an economic loss at a specific point in time during the entire passage of time from one person. Echelon refers to Keeping and Aviva Canada Inc., where Arbitrator Mongeon held that an economic loss must be demonstrated in support of each claim for attendant care expenses.

The Arbitrator was satisfied that economic loss has not been established by Ms. C on an ongoing basis, and accepted Echelon’s position of non-compliance with Section 33 of the Schedule by Ms. C.

The Arbitrator foun Ms. Massicotte failed to provide information and documentation that was reasonably requested of her pursuant to s. 33 and 46.2 of the Schedule. Accordingly, ACBs are not payable based on non-compliance with section 33 for the period January 1, 2015 to January 31, 2016.

With respect to the claim for ACBs from February 1, 2016 to date and ongoing, the oral evidence and income documents provided to Echelon by Mr. L and Ms. Massicotte demonstrate that Mr. L has sustained an economic loss. Mr. L testified that he did not return to work for a company in the summer of 2016. He testified that after he graduated from university in 2015, he was offered full-time work, which he turned down to work for Ms. Massicotte.

The Arbitrator found the evidence of Mr. L establishes that he was employed prior to becoming an attendant care provider and he lost income as a result of taking on the role of Ms. Massicotte’s attendant care provider.   However, Mr. L did not produce his 2015 income tax return until two weeks prior to the Hearing. He failed to provide his income documentation and other documents to support the claim for economic loss as required under s. 33. No evidence was provided outlining a reason for the delay.  On that basis no ACBs are payable.

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