COVID-19 UPDATE  

Insured entitled to retroactive attendant care benefits

September 19, 2015, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Decision Date: 2015-07-24, Adjudicator: Janette Mills, Regulation:

 

 

REASONS FOR DECISION

 

Issues:

 

Ms. Whyte was injured in an automobile accident on August 28, 2008 and sought benefits from State Farm Mutual Automobile Insurance Company (“State Farm”) pursuant to the Schedule.[1] Mediation commenced on April 5, 2013 and Pre-Hearing discussions were held on September 22, 2014. The parties were unable to settle their dispute and Ms. Linette Whyte applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended. At the outset of the hearing the parties advised that the only issue to be determined is the Applicant’s entitlement to attendant care benefits.

 

The issues in this Hearing are:

 

 1.         Is the Applicant entitled to Attendant Care Benefits from August 28, 2008 to August 28, 2010?

 

2.         Is the Applicant entitled to a Special Award?

 

3.         Is the Applicant entitled to interest on any amounts owing?

 

Result:

 

1.         The Applicant is entitled to Attendant Care Benefits from September 6, 2008 to May 6, 2010.

 

2.         The Applicant is not entitled to a Special Award.

 

3.         The Applicant is not entitled to interest on amounts owing prior to May 2010.

 

EVIDENCE AND ANALYSIS:

 

Background

 

The Applicant was injured in a motor vehicle accident on August 28, 2008. At the time of the accident, the Applicant was a single mother with two daughters. Previous to the accident occurring, she had been employed as a personal support worker. The Applicant had a pre-existing heart condition and had been suffering from depression. At the time of the accident, the Applicant was collecting Ontario Disability Support Payments (“ODSP”).

 

As a result of the injuries sustained in the accident, the Applicant was hospitalized for nine days. She suffered heart failure, lung contusion, cervical, thoracic and lumbar spine injuries and bilateral shoulder injuries, which resulted in her being diagnosed with chronic pain disorder. Furthermore, the car accident exacerbated her pre-existing condition of depression and anxiety.

 

 

 

There was no dispute between the parties regarding the Applicant’s injuries and the chronology of the accident benefit claim.

 

 

 

The Position of the Applicant

 

 

 

The Applicant was in a serious car accident on August 28, 2008. She spent nine days in the hospital and after her discharge, required assistance from friends and family members to carry on her activities of normal daily living.

 

 

 

She contacted State Farm upon her discharge from the hospital and informed them of the accident. Subsequently, she received accident benefits for caregiving and housekeeping and home maintenance.

 

 

 

When the Applicant first applied to State Farm for benefits, she was unrepresented. She relied on State Farm to guide her through the claims process. Despite numerous indications of the severity of her injuries and the assistance she required in the accident benefit applications, State Farm did not advise the Applicant that she was entitled to apply for Attendant Care Benefits. In fact, to the contrary, they designated the Applicant’s injuries as coming within the Pre-Approved Framework (“PAF”) Guideline, wherein her eligibility for Attendant Care Benefits is automatically determined to be zero. In doing so, they effectively cut the Applicant off from applying for and receiving accident benefits to which she was potentially entitled.

 

 

 

The Applicant submitted that she was unrepresented throughout the first 20 months of her claim – the period of the Attendant Care Benefits now in dispute. Despite being a personal support worker, she is unsophisticated and had difficulty filling out the accident benefit claim form sent to her by State Farm. State Farm was well aware of this and took advantage of the Applicant to its own benefit. In doing so, State Farm acted in bad faith.

 

 

 

The Position of State Farm

 

 

 

State Farm submits that the Applicant is asserting a retroactive claim for Attendant Care Benefits, and such a retroactive claim is not payable under the Schedule. The Applicant did not submit a Form 1 until May 10, 2010. On receipt of the Form 1, State Farm, in good faith, paid Attendant Care Benefits from May 10, 2010 up to August 28, 2010, the 104 week mark.

 

 

 

State Farm further submits that the Applicant was paid Caregiver Benefits and Housekeeping and Home Maintenance Benefits throughout the 104 week period and that any services she required were subsumed under these benefits. Furthermore, it is the Insured’s responsibility to submit a Form 1 to the Insurer. It is not until this is done that an insurer can know of the Insured’s claim and the Schedule makes clear that there is no obligation on the Insurer to pay Attendant Care Benefits prior to this point. Therefore, it would be unreasonable to require the Insurer to pay retroactive benefits.

 

 

 

The Legislative Scheme

 

 

 

Attendant Care Benefit

 

 

 

16.

 

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit.

 

(1.1)  Despite subsection (1), if the accident occurred after April 14, 2004, no attendant care benefit is payable to an insured person whose impairment is a Grade I or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline.

 

(2)  The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

 

(a) services provided by an aide or attendant; or

 

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

 

(3)  Subsection (2) does not apply to expenses for which payment may be obtained under clause 14 (2) (g), 15 (5) (k) or subsection 24 (1.6).

 

(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

 

(5)  The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

 

1. If the accident occurred before October 1, 2003, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

 

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

 

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

 

2. If the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

 

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

 

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

 

3. If the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the monthly limit under subsection 27 (5). O. Reg. 281/03, s. 5; O. Reg. 458/03, s. 6 (2).

 

 

 

Notice and Application for Benefits

 

 

 

32.

 

(1)  A person shall notify the insurer of his or her intention to apply for a benefit under this Regulation.

 

(1.1)   A person shall notify the insurer under subsection (1) no later than,

 

(a) the 30th day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred before October 1, 2003; or

 

(b) the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred on or after October 1, 2003. O. Reg. 281/03, s. 11 (1).

 

(2)  The insurer shall promptly provide the person with,

 

(a) the appropriate application forms;

 

(b) a written explanation of the benefits available under this Regulation;

 

(c) information to assist the person in applying for benefits; and

 

(d) information on any possible elections relating to income replacement, non-earner and caregiver benefits.

 

 

 

 

Attendant Care Benefits

 

 

 

39.

 

(1)  An application for attendant care benefits for an insured person must be in the form of an assessment of attendant care needs for the insured person that is prepared and submitted to the insurer by a member of a health profession who is authorized by law to treat the person’s impairment.

 

(2)  Within 10 business days after receiving the assessment of attendant care needs, the insurer shall give the insured person a notice that,

 

(a) advises the insured person which, if any, expenses described in the assessment of attendant care needs the insurer agrees to pay; and

 

(b) advises the insured person that the insurer requires the insured person to be examined under section 42, if the insurer has not agreed to pay all expenses described in the assessment of attendant care needs.

 

(3)  An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with subsection (1) is submitted to the insurer.

 

 

 

 

Time Limit for Proceedings

 

 

 

51.

 

(1)  A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

 

(2)  Despite subsection (1), a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280 (8) of the Act or within 30 days after the person performing the evaluation provides a report to the parties under section 280.1 of the Act, whichever is later.

 

 

 

Evidence

 

 

 

(i)                 The Applicant

 

 

 

Linette Whyte testified that she did not have counsel at the outset of her application for accident benefits. She relied on and trusted State Farm to assist her in navigating her way through the accident benefit scheme. She testified that although she had initially filled out the accident benefit claim forms incorrectly, a State Farm representative was helpful in assisting her to complete them.

 

 

 

She was unaware that she may have been eligible to receive Attendant Care Benefits and relied upon State Farm to guide her through the process. She was initially assessed as coming within the PAF but later, due to the extent of her injuries, she was removed from the PAF.

 

 

 

The Applicant testified that upon her discharge from the hospital, she required help at home to assist her with cooking meals, shopping, hair grooming and dressing, and that her inability to perform these tasks for herself remained at varying degrees throughout the following 104 weeks.

 

 

 

Initially, her sister provided her with help and the Applicant’s boyfriend (who is now her husband) would assist when he could. The Applicant testified that from the time that she arrived home from the hospital up until her husband moved in sometime in October/November 2008, her sister was her primary helper. Thereafter, her sister would help periodically but her husband attended to most of the things she could not do without assistance. This included such things as bathing, shaving, cutting her toe nails, putting on her pantyhose, shoes and boots. He would also help her during the night to go to the bathroom as she was unable to get out of bed unassisted.

 

 

 

The Applicant testified that she was forgetful after the accident and she had pain to her neck, shoulder and back, which prevented her from cooking traditional West Indian food preferred by the family. She informed State Farm of her difficulties but did not tell them that she could not bathe herself as she felt embarrassed and did not want a stranger to assist her.

 

 

 

The Applicant was not told what an in-home assessment or a Form 1 was, nor was she told to hire an occupational therapist to do an in-home assessment. The Applicant testified that on September 18, 2008, she attended at Physio-Health and Fitness Clinic in Oshawa. She was assessed by Ms. Maria Liu, a physiotherapist, who classified her injuries as coming within the PAF. On November 13, 2008, Ms. Liu re-assessed the Applicant and recommended that she be taken out of the PAF. The basis for her recommendation was that the Applicant had difficulty carrying on her activities of normal life and that the recommended course of treatment fell outside of that provided for within the PAF.

 

 

 

During this time, the Applicant filled out the accident benefit claim and expense claim form (OCF-6)[2] and an activities of daily living form (OCF-12).[3]

 

 

 

The Applicant had no recollection of seeing the Explanation of Benefits (OCF-9), issued on December 5, 2008, wherein it refers to the necessity of a Form 1 in order to claim Attendant Care Benefits.[4] She also did not recollect the letter, dated September 18, 2008, referring to the benefits that she may be entitled to and a description of those benefits, including Attendant Care Benefits.[5] In any event, she would not have understood what a Form 1 was and no one explained it to her.

 

 

 

In August 2009, the Applicant retained counsel to assist her with her accident benefits claim.[6] In May 2010, a Form 1 was completed and State Farm eventually paid her Attendant Care Benefits from May 2010 to August 28, 2010, in the amount of $999.39 per month.[7] The Applicant testified that her condition gradually began to improve but she still requires and receives assistance from her husband in dressing and getting in and out of her vehicle.

 

 

 

In June 2011, at the request of her counsel, an occupational therapist attended at the Applicant’s home to do an in-home assessment. The assessment was directed at the period from August 28, 2008 to May 2010.[8]

 

 

 

On cross-examination, the Applicant testified that prior to the accident, she suffered from major depression and difficulty concentrating, and both conditions were exacerbated by the accident.  Accordingly, the Applicant acknowledged that some details, such as when she finished high school, may be inaccurate, as she has difficulty recalling past events. The Applicant agreed that she called State Farm many times after the accident for property damage issues and she told them that she had back problems and needed help.

 

 

 

She testified that she responded to whatever forms that State Farm sent to her but had no personal experience with the accident benefit process. The forms she initially completed were sent back to her as being incorrectly filled out. She called State Farm and someone there helped her fill them out properly.

 

 

 

The Applicant agreed that she never directly told State Farm that she was having trouble bathing herself. She also agreed that there were various assessments and reports generated in which she did not report to the assessor(s) that she needed help with her personal care. She testified that her focus was on her children and getting assistance to help care for them. Furthermore, she did not realize that she could get assistance for herself. The Applicant testified that she was embarrassed to tell State Farm how much help she needed. She did not ask for Attendant Care Benefits until May 2010 and when she did ask, State Farm paid them.

 

 

 

After her discharge from the hospital, a Community Care Access Centre (“CCAC”) representative came to see her at her home. The Applicant testified that she had no recollection of the first time this happened. CCAC came to see her on a number of occasions between her discharge from the hospital and November 2008.[9] The Applicant agreed with the suggestion that at no point did she specifically mention to CCAC her difficulties caring for herself, or tell them that her boyfriend (now husband) was assisting her. The Applicant testified that she was sure she would have answered the questions asked of her and that her main concern was for her children.

 

 

 

The Applicant testified that her sister helped her approximately five times each week. She would go back and forth from her home to assist in her dressing. To dress her would take about 15 minutes each time. At other times, her boyfriend was with her to assist.

 

 

 

When asked about the retroactive Form 1 that was done on her behalf and the need for her to have 24 hour attendant care, the Applicant testified that there was a concern that she would not be able to respond to an emergency. Also, there was concern that her forgetfulness would place her and the children in danger, from such things as leaving a pot on the stove.

 

 

 

(ii)               Dr. Mohammad Reza-Ghobadian – the Applicant’s Family Doctor

 

 

 

Dr. Mohammad Reza-Ghobadian testified that he has been the Applicant’s family doctor since January 26, 2010. He is aware of her medical history and of the MVA. Dr. Ghobadian referred her to a chronic pain specialist, Dr. K. Efala. The Applicant expressed to Dr. Efala difficulties in her personal care. She reported having difficulty showering, taking care of her hair, dressing and undressing.[10]

 

 

 

Dr. Ghobadian opined that it is reasonable to assume that the Applicant’s condition was worse closer to the accident date than at the time of her examination by Dr. Efala. He had no note of the Applicant having reported to him difficulty with her personal care.

 

 

 

(iii)             Delroy Robinson – the Applicant’s husband

 

 

 

Delroy Robinson testified that he is the Applicant’s husband. He was her boyfriend at the time of the MVA. He moved in with the Applicant in late October/early November, 2008. They married in March 2009.

 

 

 

When the accident happened, he was living in Rexdale, ON. After the Applicant’s discharge from the hospital, he would travel to Whitby to see her whenever he was not working. At the time, he was working approximately 20 hours a week.

 

 

 

Mr. Robinson testified that the Applicant required a lot of help but she was resistant. He felt sorry for her and wanted to help more. Mr. Robinson testified the Applicant did not want him to move in with her and her daughters, as she was opposed to this on religious grounds. Subsequently, he proposed to her and she allowed him to move in with her in late October or early November 2008. He testified that he helped her with her hair, meals, feeding, and shaving and to get in and out of bed.

 

 

 

He testified that the Applicant was forgetful and that he would have to remind her to take her medications. He further testified that her condition continued for about three years. Approximately a year after the accident, there was some improvement. After one and a half years, he was still helping her to dress, particularly to put her shoes on and her jacket in the winter months. After two years, she could go up and down stairs without holding on to a rail.

 

 

 

Mr. Robinson testified that he did not interact with CCAC, rather he let people do their jobs and he was not around for a lot of the visits. He recalled the Applicant having trouble filling out the forms. However, he had no personal experience with insurance claims.

 

 

 

On cross-examination, the witness testified that in March 2009, he got a full-time job and began working 10 hours a day. He testified that he and the Applicant’s sister shared the housekeeping duties and care for the children when they were at home. He was uncertain how many hours he spent each day helping the Applicant with her personal care.

 

 

 

(iv)             Annette Lewis – The Applicant’s Sister

 

 

 

Annette Lewis testified that she is the sister of the Applicant. On the Applicant’s discharge from the hospital, the witness stayed with the Applicant for a week to help with the cooking, cleaning and meals for her and her children. She also assisted the Applicant with going to the bathroom, showering, and her personal hygiene, which she listed as: undressing and dressing, helping her into the tub and assisting with taking a shower and doing her hair.

 

 

 

Ms. Lewis testified that at the time, she was employed as a personal support worker and that she was working 30 hours a week. After the first week, she returned to work and would visit with the Applicant twice each week on average. This continued for approximately one and a half years. After one and a half years, the Applicant began having better days but she still had days when she could not do things for herself and would be lying on the floor in pain. She testified that Delroy Robinson was living with the Applicant and that she understood him to be assisting with her personal care. She further testified that she was concerned about the Applicant’s safety as she could not walk upstairs properly and that Delroy would have to help her.

 

 

 

She testified that a private investigator came to her house and asked her questions about what she was doing for her sister. She became very annoyed at the questions and told him to ask the Applicant and to leave her alone.

 

 

 

(v)               Sandy Sarkassian – Occupational Therapist – authored retroactive Form 1s

 

 

 

Sandy Sarkassian testified that she is the occupational therapist who conducted the retroactive in-home assessment on June 12, 2011. She also prepared three Form 1s (August 28, 2008 to September 5, 2008; September 6, 2008 to March 6, 2010; and March 7, 2010 to August 28, 2010). Ms. Sarkassian testified that in her view, the Applicant required attendant care to assist her with dressing, undressing, grooming, and feeding herself, and mobility and basic supervisory care, as she lacked the ability to respond to an emergency. The Form 1s all indicate the same concerns but to varying degrees. The Form 1s are all retroactive in application.

 

 

 

In coming to her conclusion, she relied on a review of the Applicant’s medical file, personal interview with the Applicant and objective testing and findings. She testified that she was particularly concerned with the Applicant’s inability to navigate stairs. The Applicant reported that her back would give out unpredictably and that her pain and fatigue would increase throughout the day.

 

 

 

The witness testified that the Applicant informed her that on one occasion, when her back had given out, she had to slip from the couch and lay on the floor until someone came home. In the witness’ view, this presented a significant safety concern. She further opined that the Applicant’s inability to perform her daily activities would have been more significantly compromised closer to the time of the MVA.

 

 

 

In cross-examination, the witness testified that her practise is one hundred percent motor vehicle accident related and that referrals from the Applicants’ lawyers make up approximately eighty percent of her work.

 

 

 

The witness agreed that if a person had cognitive issues pre-accident, this could make a difference in their post-accident presentation. She acknowledged that the Applicant had major depressive issues prior to the MVA and that any changes she was aware of were based on the Applicant’s self-reporting.

 

 

 

The witness testified that she considers the information before her in a holistic way and does not compartmentalize it. Further, whilst she considers the reports of other health care professionals, the assessment of self-care is specifically within the expertise of an occupational therapist. She agreed that the Applicant’s inability to negotiate stairs came strictly from the Applicant’s self-reporting and was not found in any other records or reports.

 

 

 

The witness acknowledged that it was important to review the findings of other health care professionals but stated that the remit of an occupational therapist is the ability to self-care and that they are not necessarily persuaded in their recommendations by reports of others. They base their opinions on the activities of daily life from the perspective of a combination of physical, psychological and cognitive factors. The witness testified that occupational therapists encourage independence in daily living but the level of independence will depend on the client’s level of functioning.

 

 

 

The witness agreed that the Applicant could perform the functional activities asked of her but she testified that whilst she had a full range of motion, she was in pain. Furthermore, activities are not one off and when done continuously, could result in a decrease in range of motion over lengthy periods of time.

 

 

 

The witness testified that as an occupational therapist, she would recommend treatment as being reasonable and necessary when the quality of a client’s life is impacted. She further testified that she recommended increased level of attendant care as time went on due to the security concerns of which she became aware.

 

 

 

(vi)             Jane Lees – CCAC Nurse

 

 

 

Jane Lees testified that she is a registered nurse. In 2008, she was working with CCAC and attended at the Applicant’s residence after her discharge from the hospital. Her primary purpose was to assist the Applicant with cardiac monitoring and medications. The Applicant had been referred for assistance of a social worker, nutritional counsellor and nurse. She saw the Applicant thirteen times from September 6, 2008 to November 2, 2008.

 

 

 

The witness testified that the Applicant suffered from a significant shortness of breath, upper and lower back pain and neck pain. The witnessed testified that she did not note that the Applicant experienced any difficulties with her personal care but also stressed that her focus was only on her cardiac and medication needs. She acknowledged that the Applicant’s prescription and discharge summary reported that she experienced difficulty completing her daily activities and did not record her as being independent in her personal care. It also recorded her as having a high service priority rating.[11]

 

 

 

The witness testified that she did not recall asking the Applicant whether or not she could bathe herself. However, she also testified that in her experience, it is not unusual for patients to under report their difficulties due to embarrassment.

 

 

 

(vii)           Maria Lui – Physiotherapist

 

 

 

Maria Lui testified that she is a physiotherapist. She assessed the Applicant in September 2008 and filled out the Pre-Approved Framework Treatment Confirmation Form (OCF-23). She also re-assessed the Applicant on November 13, 2008 and filled out the Pre-Approved Framework Request and Discharge Report (OCF-24/198), wherein she recommended that the Applicant be taken out of the PAF.[12]

 

 

 

The witness testified that she saw the Applicant fourteen times between September 18 and November 13, 2008. On November 13, 2008, the witness determined that due to her injuries, the Applicant required treatment outside of the PAF. She reported being sore and weak and unable to do household chores. Furthermore, she was unable to move both of her knees to her chest. Her grip remained weak, although it had improved from her first assessment. The witness had no opinion regarding the Applicant’s need for attendant care. However, she would not necessarily have written it down had the Applicant reported needing help with personal care. She was never asked to do an in-home assessment or Form 1.

 

 

 

(viii)         Christine Verghese – State Farm Claims Advisor

 

 

 

Christine Verghese testified that she is a claims advisor for State Farm. She took over the Applicant’s claim in March 2014. She testified that at State Farm’s request an in-home assessment was done on April 19, 2010 to re-assess entitlement to Housekeeping and Caregiving Benefits. State Farm did not assess for Attendant Care Benefits as a Form 1 had not been filed. Subsequently, a Form 1 was filed on May 14, 2010.[13]

 

 

 

The witness testified that on receiving a Form 1, State Farm can either pay for the Attendant Care Benefits as assessed or can assess the Form 1 to see if the benefit as requested is reasonable and necessary.

 

 

 

In this case, on receiving the Form 1, State Farm requested an assessment. Subsequently, on August 30, 2011, over a year later, State Farm paid Attendant Care Benefits from May 14, 2010 to August 28, 2010. It did not pay interest because it never received an OCF-6 for this period.[14]

 

On September 8, 2011, retroactive Form 1s were received by State Farm. On September 27, 2011 State Farm determined that no Attendant Care Benefits would be paid.

 

 

 

When the witness took over the file in 2014, an Application for Mediation had been filed. The witness testified that she was not in a position to properly assess the retroactive claim because she was unable to get information regarding the service providers. She received some information in December 2014. She tried to contact the service providers but was unsuccessful. December 2014 was the first time that she was aware of the Applicant’s husband and that he had provided attendant care to the Applicant. She was aware of her sister doing so because of the OCF-6, which was filed in 2008.[15]

 

 

 

The witness testified that an accident benefit statement was never taken from the Applicant, nor was an Examination Under Oath conducted or section 33 of the Statutory Accident Benefits Schedule (“the Schedule”) invoked. She agreed with the suggestion that logic would dictate that the Applicant’s injuries would likely have been more significant closer to the MVA than in 2010, when the first Form 1 was submitted.

 

 

 

(ix)             Dr. Ojiegbe – Applicant’s Treating Psychiatrist

 

 

 

Dr. Ojiegbe testified by teleconference that she has been the Applicant’s treating psychiatrist since January 30, 2008. Her primary concern is with the Applicant’s mental health. She testified that the Applicant told her about the MVA and that her level of pain is a recurrent complaint. The witness testified that she did not specifically speak with the Applicant regarding her personal care but that she recalled the Applicant telling her that she was having difficulty doing her housework and taking care of her children. The witness testified that the first time she was contacted by State Farm in regard to the Applicant was on April 16, 2015, when she received the subpoena to attend the Arbitration Hearing.

 

 

 

(x)               Bradley Trews – Private Investigator

 

 

 

Bradley Trews is a private investigator hired by State Farm to locate Annette Lewis and Delroy Robinson. The witness testified that his purpose in locating and speaking with both was to find out what services they provided to the Applicant. He was not able to locate Delroy Robinson. He located Annette Lewis and had a brief conversation with her. He showed her the letter written in her name that had been submitted with the OCF-6. Annette Lewis confirmed that she had authored it. She also told the witness that she had never been paid for the work and that she still does work for the Applicant on and off, as the Applicant’s back continues to hurt and she cannot do anything when that happens.

 

 

 

(xi)             William Walton – State Farm Claims Advisor

 

 

 

William Walton testified that he was the claim advisor for the Applicant’s claim from October 8, 2008 until September 9, 2009. He confirmed that the log notes indicated that on September 18, 2008, the Applicant reported that she was finding it difficult to perform her personal care.[16] He also confirmed that the OCF-12, dated October 12, 2008, indicated that the Applicant could not do her activities of daily living.[17]

 

 

 

The witness testified that an application for accident benefits (OCF-1) was received between December 5 and 8, 2008 – the period during which he was claim’s advisor for the file. He never received a Form 1 for Attendant Care Benefits. The witness testified that he did nothing in regard to Attendant Care Benefits and he assumed an earlier adjuster had explained them to the Applicant and a letter had gone out in this regard.[18]

 

 

 

He further testified that the Applicant had experienced difficulty in filling out her accident benefit forms and that some assistance had been provided to her by others at State Farm. The witness testified that he saw his duty toward the Applicant as requiring him to provide her with an explanation of her benefits; to assist her in making her claim and to assist in processing her claim.

 

 

 

The witness testified that he didn’t question the initial PAF determination despite the indication in the file that the Applicant’s injuries likely fell outside of the PAF. He also did not see anything in the file suggesting that the Applicant may require Attendant Care Benefits. In his view, an Examination Under Oath was not called for. He testified that he was unable to say whether the Applicant’s pain was worse closer to the accident than in 2010, when Attendant Care Benefits were approved. Furthermore, there was nothing in her file history regarding the need to monitor her medication, an inability to navigate stairs or make meals. He disagreed with the suggestion that the Applicant could not get Attendant Care Benefits because she had been placed within the PAF.

 

 

 

Analysis

 

 

 

(i)                 Should the Applicant’s claim for Attendant Care Benefits be paid retroactively?

 

 

 

State Farm submits that, in keeping with the Schedule, it is not required to pay for Attendant Care Benefits until it has received a Form 1. It did not receive a Form 1 from the Applicant until May, 2010. Based on the May 2010 Form 1, State Farm paid Attendant Care Benefits, in good faith.

 

 

 

The Applicant submits that she did not file a Form 1 because she was unaware that she needed to do so and that she thought State Farm would assist her in filling out and filing everything that was necessary. The Applicant further submits that State Farm must have known of her need for Attendant Care Benefits because the difficulties she was experiencing with respect to her personal care were evident in the log notes and other documentation filed throughout the course of her accident benefit claim.

 

 

 

The Applicant submits that her claim for Attendant Care Benefits should be paid retroactively. Implicit in this submission is the assertion that section 39(3) does not act as a bar to the payment of Attendant Care Benefits retroactively, on receipt of a Form 1.

 

 

 

In my view there is nothing in the Schedule that prohibits the claim from being paid retroactively. I am in agreement with Arbitrator Bayefsky in T.N. and Personal,[19]

 

 

 

…section 39(3) of the Schedule does not displace an insurer’s basic obligation to pay reasonable and necessary attendant care benefits determined in accordance with a duly prepared Form 1. Section 39(3) established an insured’s obligation to claim attendant care benefits in accordance with a Form 1, and an insurer’s right to await a Form 1 before assessing an insured’s entitlement to attendant care benefits. Section 39(3) allows an insurer to pay attendant care benefits without a Form 1. It states that an insurer is not required to pay attendant care benefits before a Form 1 is submitted. This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to affect this purpose. The section as it now reads simply ensures the orderly determination of a person’s need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment. This, however, leaves open the question of whether a person is entitled to attendant care benefits prior to the submission of a Form 1, and this can only be answered in light of the evidence at the relevant times. The question at that point will be whether the evidence prior to the receipt of the Form 1 reflects the assessment contained in the Form 1.

 

 

Therefore, the Applicant’s failure to file a Form 1 prior to May 2010 does not mean that she has forfeited her right to Attendant Care Benefits, nor does it mean that State Farm is released of any obligation to pay Attendant Care Benefits.

 

 

 

I do not agree with Arbitrator Matheson’s reasoning in Reichert and Gore Mutual[20] that by allowing a retroactive claim for Attendant Care Benefits, this prevents the Insurer from having the opportunity to adjust the file in real time, the implication being that this prejudices the Insurer. The onus remains on the Applicant to demonstrate his or her entitlement to the Attendant Care Benefit and the quantum of that entitlement,[21] which would mitigate any prejudice to the Insurer.

 

 

 

(ii)               Is the Applicant entitled to Attendant Care Benefits from August 28, 2008 to August 28, 2010?

 

 

 

In my view, the Applicant is entitled to Attendant Care Benefits from September 6, 2008, the date of her discharge from hospital, to May 6, 2010, the date that State Farm paid her Attendant Care Benefits. The evidence before me demonstrates that from the time of the accident up to August 28, 2010 the Applicant was experiencing difficulty with her personal care. As stated above, State Farm accepted, in May 2010, when it received the first Form 1, that the Applicant required Attendant Care Benefits.

 

 

 

I am supported in this view by the evidence from Jane Lees, the CCAC nurse, that the clinical notes regarding the Applicant indicated that she reported difficulty completing her independent activities of daily life on her discharge from hospital.[22] This note was followed up with other similar notes, wherein the Applicant reported difficulties performing her pre-accident duties and that her injuries had altered her ability to be independently mobile.

 

 

 

Furthermore, the OCF-3s, completed on September 25, 2008 and December 31, 2009, both note her as having a complete inability to carry on a normal life.[23] It is also clear in the OCF-6, dated November 2008, that the Applicant could not do her own hair.[24]

 

 

 

State Farm submits that the fact that the Applicant did not specifically report that she was having difficulties bathing herself or performing other acts of personal care, is evidence that she was not, in fact, experiencing those difficulties. It further submits that the Applicant claims to have been embarrassed to request assistance for her personal care but demonstrated no such embarrassment at the Hearing.

 

 

 

I find the Applicant to be a credible witness. Whilst she was a poor historian, I did not find her to be evasive, nor did she embellish her testimony to her own benefit. Rather, of the things that she could not remember, many were to her detriment. I am also mindful that the events that are the subject of this Hearing happened eight to nine years ago. In addition, there is evidence before me that forgetfulness is in keeping with the psychological trauma from which she suffers.

 

 

 

I also find that the Applicant is unsophisticated, evidenced in part by her inability to fill out the accident benefit forms and my observations of her. It is not unreasonable that she would not fully understand her benefit entitlement. Furthermore, at the relevant time she was unrepresented by counsel. I acknowledge that the Applicant is a personal support worker. However, I do not find that this makes her any more likely to be aware of her potential accident benefits.

 

 

 

I accept the Applicant’s testimony that she did not know that she was entitled to help for her personal care and that in any event, she was too embarrassed to request it. As stated by Jane Lees, it is not unusual for patients to under report because of embarrassment or a misplaced desire to remain independent.

 

 

 

I also accept the evidence of Delroy Robinson and Annette Lewis. I find them both to be credible witnesses. Their evidence was internally consistent with each other’s and the Applicant’s testimony in all material aspects. Whilst there was some evidence before me that Annette Lewis did not wish to be interviewed by State Farm in early 2015 and that Delroy Robinson could not be located, I note that State Farm did not seriously contest the credibility of either witness. Furthermore, Annette Lewis’ displeasure with being confronted by the private investigator was not unreasonable given the time lapse and the way in which the encounter took place. In addition, there was no evidence before me that Delroy Robinson was evading the private investigator, rather he testified that he was unaware as to why he was not located. His address remains the same.

 

 

 

In my view, based on the evidence before me, the desire of Annette Lewis not to be interviewed and the inability of the private investigator to locate Delroy Robinson, are not relevant to the issue that they assisted the Applicant with her personal care needs and that they continued to do so up until August 2010 and that Delroy Robinson continues to do so, even today.

 

 

 

Furthermore, Delroy Robinson’s evidence was also consistent with that of Jane Lees in that he testified he was not around when CCAC did their visits. The evidence before me was that he had not moved in with the Applicant at the time that CCAC was doing their home visits.

 

 

 

I am not concerned by the absence of any noted discussions between the Applicant and her psychiatrist regarding her inability to perform her personal care. Dr. Ojiegbe was clear that even had this happened, she would not necessarily have noted it. Jane Lees’ and Maria Lui’s testimony were similar that they would not have noted it. I am also not concerned that the Applicant did not report to her family doctor that she was unable to perform some items of her personal care.

 

 

 

What is evident from all of the health care workers who testified before me, was the degree of pain that the Applicant was experiencing following her discharge from the hospital, and that this pain continued until August 2010 and remains on-going.

 

 

 

In my view, the degree of the Applicant’s pain is a significant factor that supports her testimony that she required assistance with her personal care. The testimony of Maria Lui revealed that the Applicant was unable to lift her legs to her chest or to bend. Furthermore, her hospital discharge summary reported that she experienced difficulty completing her daily activities and did not record her as being independent. It also recorded her as having a high service priority rating.[25] In addition, the OCF-3s both state that the Applicant had a complete inability to carry on a normal life.

 

 

 

It is also reasonable to assume, based on the evidence before me, that if the Applicant required Attendant Care Benefits in May 2010, then she would have required those benefits in September 2008 to April 2010 - closer to the date of her accident.

 

 

 

When considered as a whole, the weight of the evidence supports the finding that the Applicant is entitled to Attendant Care Benefits.

 

 

 

(iii)             What is the quantum of Attendant Care Benefits to which the Applicant is entitled?

 

 

 

I am mindful that Arbitrators have been cautioned against constructing a Form 1 and I do not presume to do so. In my view, the quantum of attendant care required can reasonably be based on the retroactive Form 1s, the May 14, 2010 Form 1, and the testimony of the Applicant, Delroy Robinson and Annette Lewis taken together.

 

 

 

State Farm contends that Ms. Sarkassian, the occupational therapist, who did the in-home assessment and retroactive Form 1s, is motivated by personal gain to provide an assessment favourable to the Applicant. I agree that Ms. Sarkassian’s assessment was excessive in what she considered reasonable and necessary assistance. Ms. Sarkassian’s recommendation was for $6,637.23, $6,723.45 and $6,949.29 per month, depending on the time frame.

 

 

 

In my view, Ms. Sarkassian’s in-home assessment and subsequent Form 1s are useful to the extent that they are supported by the viva voce testimony of Delroy Robinson and Annette Lewis and the May 2010 Form 1.

 

 

 

Dr. Patel did not list the Applicant’s security as being a concern in May 2010. Delroy Robinson and Annette Lewis both testified that the Applicant had some difficulty navigating stairs. However, neither testified that someone was required to be with her 24 hours a day.

 

 

 

In my view, it is appropriate to look at the estimate of the amount of time that was required for dressing and undressing, grooming and hygiene. I note that the Applicant could feed herself and meal preparation was taken care of through the Housekeeping and Caregiving Benefits that she received.

 

 

 

On reviewing the retroactive Form 1s and the viva voce evidence before me, the reasonable and necessary attendant care assistance from September 6, 2008 to March 6, 2010 comes to $2,210.16 per month (56.47 hours for routine personal care at $11.23 per hour; 120.40 hours for basic supervisory functions at $8.75 per hour; 29.06 hours for complex health care and hygiene functions at $17.93 per hour) and from March 7, 2010 to May 6, 2010, $401.11 per month (27.87 hours for routine personal care at $11.23 per hour; 5.02 hours for basic supervisory functions at $8.75 per hour; 2.51 hours for complex health care and hygiene functions at $17.98 per hour) for a total amount of $40,585.10.

 

 

 

(iv)             Is the Applicant entitled to a Special Award?

 

 

 

Section 282(10) of the Insurance Act requires an Arbitrator to make a Special Award upon finding that an Insurer unreasonably withheld or delayed payments of benefits found to be owing. The award is a lump sum, with a fixed maximum limit, in addition to the benefits and interest owed to the Insured.

 

 

 

In my view, whether State Farm acted unreasonably or delayed payments in the circumstances of this case, hinges on whether State Farm should have gone further in explaining the Applicant’s potential entitlement to her. The Applicant was sent a letter attached to which were two pages outlining the Applicant’s potential entitlement and the steps that needed to be taken to apply for them.

 

 

 

At no time did the Applicant expressly inform State Farm that she needed assistance with her personal care. At no time between September 6, 2008 and May 6, 2010 did the Applicant file a Form 1. Furthermore, the Applicant was told about a Form 1 in the OCF-9.

 

 

 

Whilst it would have been preferable for State Farm to have explained the Applicant’s benefits to her in person, rather than relying on a letter, I cannot find that by doing so, they acted unreasonably or delayed payments within the meaning of section 282(10). Despite the initial indication in the log notes that she was having difficulty with her personal care, there are no other entries specifically on-point. I find that in the absence of explicit information from the Applicant, either informing State Farm of her difficulties or providing them with a Form 1, there is little basis for State Farm to spontaneously require an in-home assessment.

 

 

 

For these reasons, I find that State Farm did not act unreasonably in not paying Attendant Care Benefits from September 6, 2008 to May 6, 2010 and there will be no Special Award.

 

 

 

(v)               Is the Applicant entitled to Interest?

 

 

 

In regard to the payment of interest, the Schedule provides as follows:

 

 

 

Overdue Payments

 

 

 

46.

 

(1)  An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Part.

 

(2)  If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

 

 

 

In Singh and Gore Mutual Insurance Company, Delegate Makepeace addressed the meaning of “overdue”. Delegate Makepeace relied, in part, on the decision of Delegate Draper in Bajic and Pafco and Zurich finding that:

 

 

 

While “overdue” must be given meaning, I find no indication that the legislative intention is to relieve insurers from paying interest whenever the insured person’s entitlement is questionable. On the contrary, the high rate of interest imposed by s.68 is clearly meant to encourage insurers to pay benefits in a timely fashion.[26]

 

 

 

 

As Director’s Delegate Naylor stated in Sebastian and Canadian Surety, (FSCO P96-00032, July 28, 1998), the interest provisions are remedial, not punitive. They are “designed not only to compensate applicants for the value of money withheld but to further the system’s fundamental goal of ensuring prompt payment of benefits for an injured person’s medical and vocational rehabilitation, their care or their day-to-day financial support.”[27]

 

 

 

In Cole and Allstate Insurance Company, Director Delegate Makepeace stated that:

 

 

 

Commission adjudicators have considered s.68 on several occasions, each time reaffirming the principle, already established in respect of the SABS-1990, that interest is mandatory, compensatory, and flows from late payment of overdue benefits. There is no need for a finding of insurer misconduct. Accordingly, upon a finding of entitlement, interest flows even though the insurer had legitimate reasons for questioning the claim or requiring more information.[28]

 

 

 

In the circumstances of this case, Section 46(1) must be read together with Sections 16(1) and (4) and 39(1) and (3) which state:

 

 

 

16.

 

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit.

 

 

(4)  The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

 

 

 

39.

 

(1)  An application for attendant care benefits for an insured person must be in the form of an assessment of attendant care needs for the insured person that is prepared and submitted to the insurer by a member of a health profession who is authorized by law to treat the person’s impairment.

 

 

(3)  An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with subsection (1) is submitted to the insurer.

 

 

 

In my view, these sections make clear that there is no obligation on the Insurer to pay Attendant Care Benefits until such time as it receives a Form 1. Therefore, it follows that in the absence of a Form 1, payment is not overdue.

 

 

 

I find that State Farm did not receive a Form 1 from the Applicant until May 2010. Accordingly, the payment for Attendant Care Benefits from September 6, 2008 to May 6, 2010 cannot be said to be overdue prior to May 2010. As such, no interest is owing on the amounts payable from September 6, 2008 to May 6, 2010, prior to May 6, 2010.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Chronic Pain, Disability Insurance, Fractures, Pain and Suffering, Slip and Fall Injury, Treatment

View All Posts

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 toll-free at 1-866-414-4878.

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.

Practice Areas

  1. Car accidents
  2. Motorcycle accidents
  3. Automobile accident benefits
  4. Catastrophic injury
  5. Brain or Head injury
  6. Paraplegia and Quadriplegia
  7. Spinal cord injury
  8. Drunk driving accidents
  9. Concussion syndrome
  10. Post Traumatic Stress Disorder
  11. Business Interruption Insurance
  12. Birth Trauma Injury
  1. Wrongful death
  2. Bicycle accidents
  3. Disability insurance claims
  4. Slip and fall injury
  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

Personal Injury Blog

Aug 04, 2020
Post-Concussion Treatment is Extremely Important in Suicide Prevention
Jul 30, 2020
Being the loved one or care giver of someone with TBI can be very challenging
Jul 28, 2020
Children who suffer concussions are susceptible to behavioral and emotional symptoms
Jul 23, 2020
Long-Term Care Homes and Hospitals Relax Visitor Restrictions
Jul 21, 2020
E-bike Popularity Continues to Grow – Remember They are Subject to Regulation
Jul 18, 2020
Al Fresco Dining Here to Stay, but Risk Needs to Be Managed

More Personal Injury Articles » 
Review our services

Connect with us

Facebook Twitter Linkedin Youtube Google