October 17, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Stuart Mutch,
Date of Decision: September 30
Anthonidas Aloysius was injured as the result of three car accidents that took place on January 31, 2003, December 10, 2005, and May 8, 2006. He applied for benefits from Royal and SunAlliance payable under the Schedule, however disputes arose which the parties were unable to resolve and Mr. Aloysius applied for arbitration at the FSCO.
A. Procedural issues:
Royal alleges that it has a section 32 defense in regard to the following:
the claim for housekeeping benefits post-104 weeks arising from the 2003 accident
the claim for all housekeeping benefit claims arising from the 2006 accident.
the claim for attendant care benefits arising from the 2003, 2005 and 2006 accidents
Royal alleges that it has a limitation defense in regard to the following:
the claim for housekeeping benefits arising from the 2005 accident
the claims for attendant care benefits arising from the 2003 and 2006 accidents.
B. Substantive Issues
Has Mr. Aloysius sustained a catastrophic impairment as the result of any one of the accidents referred to above?
Is Mr. Aloysius entitled to attendant care benefits at the rate of $481.60 per month from January 31, 2003 to date and ongoing, $527.65 per month from December 10, 2005, to date and ongoing and $571.30 per month from May 8, 2006, to date and ongoing?
Is Mr. Aloysius entitled to benefits for housekeeping and home maintenance from February 1, 2005 to date and ongoing? If not, is he entitled to same from the date of the second accident, December 10, 2005 to date and ongoing?If not is he entitled to same from the date of the third accident, May 8, 2006 to date and ongoing?
Is the treatment plan dated June 22, 2012 by Dr. TH, in the amount of $1,852.00 reasonable and necessary?
Is Royal liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Aloysius?
Is Royal liable to pay Mr. Aloysius’ expenses in respect of the arbitration?
Is Mr. Aloysius liable to pay Royal expenses in respect of the arbitration?
Is Mr. Aloysius entitled to interest for the overdue payment of benefits?
Mr. Aloysius has sustained a catastrophic impairment as a result of the 2003 accident.
Mr. Aloysius is not entitled to Attendant Care Benefits.
Mr. Aloysius is entitled to housekeeping and home maintenance benefits from February 1, 2005 in the amounts claimed, to date and ongoing.
Mr. Aloysius is not entitled to a medical benefit in the amount of $1,852.00 as set out in the treatment plan of Dr. TH dated June 22, 2012.
Mr. Aloysius is not entitled to a Special Award.
If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.
Royal shall pay Mr. Aloysius interest on any outstanding amounts according to the terms of the Schedule.
EVIDENCE AND ANALYSIS
Housekeeping claims arising out of the 2003 accident
Section 32 of the Schedule, in force at the time of the 2003 accident, states that a person shall notify the insurer of his or her intention to apply for a benefit no later than the 30th day after the circumstances arose that gave rise to entitlement to the benefit, and that a person shall submit an application for the benefit to the insurer within 30 days of receiving the application forms. Failure to comply with the time limits set out in that part of the Schedule does not disentitle the person to a benefit if the person has a reasonable explanation.
Royal alleges that Mr. Aloysius did not notify the insurer of his intention to apply for a housekeeping benefit until 10 years after the 2003 accident. The documentary evidence does not bear this out. Therefore the argument that Mr. Aloysius’ claim for housekeeping arising out of the 2003 accident is barred by section 32 has no merit.
Housekeeping Claims Arising Out of the 2006 Accident
The same issue is raised by Royal with regard to the housekeeping claims arising out of the 2006 accident. Given that Mr. Aloysius was, by his own admission, doing no more than a nominal amount of housekeeping at the time of the 2006 accident, due to the injuries suffered in the 2003 and perhaps to some degree the 2005 accident, the procedural issues raised by counsel are perhaps moot.
One would assume that the circumstances that gave rise to the entitlement to the benefit were essentially the accident itself. Mr. Aloysius did not make an Application for Accident Benefits unitl 80 days after the accident. Mr. Aloysius’ counsel takes the position that the time limits in section 32 only allow an insurer to delay paying a benefit. They do not disentitle the insured to a benefit. The arbitrator found that the insurer had been provided with sufficient information within one month of the accident to evaluate the claim.
Arbitrator Mutch determined there is no reasonable explanation for the fact that nearly eight year gap exists between the accident and the time Mr. Aloysius first applied for housekeeping and home maintenance benefits. Mr. Aloysius had been represented by counsel for this entire period. Mr. Aloysius is barred from advancing a housekeeping claim arising out of the 2006 accident by operation of s.32.
CLAIMS FOR ATTENDANT CARE BENEFITS ARISING OUT OF THE 2003, 2005 AND 2006 CAR ACCIDENTS
2003 Accident - The same facts and reasoning apply to this issue as to the housekeeping claim arising out of the 2003 accident. The OCF-9, dated April 3, 2003, states “As per the Insurer’s Examination, home assessment conducted by Herrold & Vernon, you are not substantially disabled from performing your pre-accident activities of daily living including your personal care. No attendant care assistance is required.” As stated earlier, one can deduce that Mr. Aloysius applied for these benefits, if not within 30 days, then very shortly after that deadline. Royal promptly assessed Mr. Aloysius’ Attendant Care needs. This is not an egregious breach of s.32. This claim does not fail because of non-compliance with s. 32.
2005 Accident - The first documented indication Mr. Aloysius applied for Attendant Care benefits as a result of the 2005 accident is contained in the OCF-9 dated March 18, 2014, which refers to a Form 1 dated June 18, 2013. Royal claims this is not the correct form and that nothing had been submitted within 30 days of the expense being incurred and no reasonable explanation for the delay was provided.
It is a flagrant violation of the terms and spirit of s.32 to make a claim for benefits nearly eight years after the accident, particularly when one is already familiar with the accident benefits scheme and is represented by counsel. Mr. Aloysius is barred from advancing an attendant care claim arising out of the 2005 accident by operation of s.32.
2006 Accident - There is no evidence of any claim for Attendant Care Benefits arising out of the 2006 accident before the Form 1 dated August 7, 2013. There is no explanation proffered as to the delay in making this claim. Mr. Aloysius is barred from advancing an attendant care claim arising out of the 2006 accident by operation of s.32.
Royal alleges that it has limitation defenses in regard to the following:
the claim for housekeeping benefits arising from the 2005 accident
the claim for attendant care benefits arising out of the 2003 and 2006 accidents
Housekeeping Benefits – 2005 Accident
Royal claims it has a limitation defense with regard to the housekeeping claim arising out of the 2005 accident. The documentary evidence indicates that the housekeeping claim was denied on March 10, 2006, and the Application for Mediation appears to have been received March 11, 2011. With regard to the housekeeping claim arising out of the 2005 accident, Mr. Aloysius has failed to comply with the limitation period set out in the Insurance Act and in the Schedule. This claim is denied.
Attendant Care Benefits – 2003 Accident
Royal alleges that it has a limitation defense to Mr. Aloysius’ claim for attendant care benefits arising out of the 2003 accident, alleging that attendant care benefits were never claimed but were nonetheless denied on April 3, 2003 and that Mr. Aloysius did not dispute the denial within the two years as required.
Is a Claim Necessary for a Proper Denial?
Mr. Aloysius’ counsel takes the position there must be a claim before there can be a proper denial. He cites the previous cases of Ross and TTC Insurance Company, Zeppieri and Royal Insurance Company of Canada among others. Mr. Aloysius’ counsel states that the proper procedure for denying the claim was not followed, specifically referral to a Designated Assessment Centre, that the reasons for the denial were not clear and unequivocal and therefore there is no denial and the limitation period does not start to run. Finally Mr. Aloysius’ counsel argues that the OCF-9 form denying attendant care benefits does not include the insured’s right to dispute the denial and therefore does not conform to the principles set out in Smith.
Arbitrator Mutch reviewed both court decisions and FSCO decisions and determined that in the court decisions all that is necessary is a clear and unequivocal denial of that benefit to start the limitation period running. While the FSCO decisions before 2011 view a claim as a prerequisite to a valid denial that sets the limitation period running, the subsequent decisions of the courts take the opposite view. It appears that the state of law is that if the insurer has made a clear and unequivocal denial of a benefit, regardless of whether it has been claimed, the limitation period begins to run.
The issue now becomes whether Royal’s denial was clear and unequivocal. Counsel for Mr. Aloysius argues that Royal has failed to provide proof that the OCF-9 denying attendant care benefits was actually delivered to Mr. Aloysius. Arbitrator Mutch had no reason to think that it was not, and the wording of the denial was clear enough. However, what is equally important is the requirement set out in section 49 of the Schedule that the claimant be provided with a written notice concerning the claimant’s right to dispute. With regard to the denial of Attendant Care Benefits for the 2003 accident there is no evidence that Royal provided Mr. Aloysius with any information regarding the right to dispute the denial or the limitation period applicable to that right. Thus the Arbitrator found that there was no proper denial of these benefits, the limitation period did not begin to run, and Mr. Aloysius was within his rights to mediate and arbitrate this issue.
Attendant Care Benefits – 2006 Accident
Mr. Aloysius is precluded from advancing this claim because of failure to comply with s. 32, and there is no need for the Arbitrator to consider the argument that this claim is outside the limitation period.
Conclusion Regarding Procedural Issues Raised
The 2005 and 2006 attendant care and housekeeping claims are denied because of failure to comply with section 32 or with the limitation periods. The only issues to be determined are those arising from the 2003 accident: the attendant care benefits and housekeeping claim post 104 weeks. As no housekeeping is payable post-104 weeks unless the insured is catastrophically impaired, the Arbitrator must determine whether the Mr. Aloysius falls into that category.
The Question of Catastrophic (“CAT”) Impairment
Mr. Aloysius claims to suffer a catastrophic impairment and therefore is entitled to housekeeping and attendant care benefits beyond the two year mark. Due to deterioration or decompensation in work or work-like settings (Sometimes referred to as Adaptability). Arbitrator Mutch indicated this was the issue at arbitration. Mr. Aloysius’ counsel raised the argument that Royal never properly denied Mr. Aloysius’ claim that he was catastrophically impaired as a result of the 2005 and 2006 accidents. As the claims from those accidents have been denied on procedural grounds, there is no need to consider whether there is merit to this argument.
No medical experts were called to give evidence at the hearing.
Royal claims that a catastrophic impairment must be the result of one particular accident and not a combination of any of number of accidents. As Arbitrator Mutch found that Mr. Aloysius is barred from the benefits claimed that arise out of the 2005 and 2006 accidents, he only considered whether Mr. Aloysius is catastrophically impaired as a result of the 2003 accident. In its submissions, Royal concedes that the CAT claim arising out of the 2003 accident was properly applied for, however, Royal argues that Mr. Aloysius had significant health problems prior to the 2003 accident.
It is undisputed that Mr. Aloysius was in two previous car accidents, and Royal also alleges that Mr. Aloysius had previous mental health issues, and quoting from previous medical files that Mr. Aloysius was an unreliable historian whose claims to good mental health prior to the accident may be called into question.
The Schedule is concerned with the degree of a person’s impairment as related to a motor vehicle accident(s).With the exception of an approximately six week period following the 1999 accident there is no evidence that Mr. Aloysius was significantly impaired in his work, family or social functioning prior to the 2003 accident. For whatever reason, the 2003 accident resulted in a rapid decline in Mr. Aloysius’ functionality. The question is whether this decline amounts to a catastrophic impairment.
Mr. Aloysius’ Evidence
Mr. Aloysius is 47 years of age, happily married and has three children of the marriage, presently aged 18, 15 and 13. At the time of the accidents Mr. Aloysius resided in a three bedroom, two-storey house in Mississauga. At the time of the first accident he was employed as an assistant machine press operator at Indalex Aluminium Solutions in Mississauga working shift work since 1994. He regularly worked substantial overtime. He testified that he enjoyed his work and this is reflected in the reports of several of his treatment providers.
The accident of concern in this hearing occurred on January 31, 2003, as Mr. Aloysius was driving he slowed to make a left- hand turn. The driver behind him decided to pass him on the driver’s side of the car and hit him on the driver’s side. He stated that his pain became worse in the days after the accident, that he developed pain in the left lower back, headaches and disturbed sleep. Mr. Aloysius testified that from the 2003 accident to the 2005 accident his pain was always present, and that he began to feel sad all the time and anxious. He became irritable and would lose his temper. He admitted to damaging drywall with his fist and damaging garbage cans. He became depressed, lethargic and unmotivated. He developed memory problems. He avoided both friends and members of his extended family. He stated that he is irritable and would argue with his friends for no reason and so they have stopped calling him and he has stopped calling them. His wife corroborated his testimony, stating that he was confrontational with others and that he had no interest in socializing both with friends and members of the extended family. Mr. Aloysius also stated that he felt evil was “ruling” him and that he suffered from auditory and visual hallucinations, as well as suicidal thoughts. He stated that his auditory hallucinations began after the 2005 accident. A July 27, 2004 report contradicts this, stating “[Mr. Aloysius] has had the auditory hallucination now for about the past three or four months. Mr. Aloysius testified that he could not return to work after the 2003 accident because he could not manage his job physically or mentally. He stated that he was required to make decisions in the course of his job and that he can no longer do that. He indicated that serious injury could result if he was inattentive at work.
Medical evidence concludes that Mr. Aloysius has impairment in the Adaptability domain. The Arbitrator examined the entire medical history and concluded that as the result of the 2003 accident Mr. Aloysius is markedly impaired in that domain, and on that basis Mr. Aloysius to be catastrophically impaired.