June 20, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: May 5, 2014
Heard Before: Adjudicator Pamila Ahlfeld
Colin Veley was injured in two serious motor vehicle accidents; the first of which is the subject of this arbitration. Mr. Veley failed to report the first accident until 7 months after his second accident. There is no dispute that at the time of Mr. Veley’s disclosure regarding his first accident, he was receiving benefits from AXA for the second accident, including attendant care expenses. He settled his claim with AXA in December 2012.
On May 31, 2013, the Mr. Veley was deemed to have a catastrophic impairment resulting from both the first and second accidents with both a physical impairment rating of 58% consisting of T4 paraplegia and a complete loss of use of his left arm. He applied for and received statutory accident benefits from Motor Vehicle Accident Claims Fund. The parties were unable to resolve their disputes through mediation, and Mr. Veley applied for arbitration at the Financial Services Commission of Ontario.
Mr. Veley claims attendant care benefits for the first accident (from the Fund) but claims he should be exempt from providing proof of payment. He also claims attendant care benefits for the first accident for the period he was already receiving them from Axa for the second one, and he claims he is entitled to attendant care benefits during the periods he was hospitalized and/or in a rehabilitation facility.
The issues in this hearing are:
Is Colin Veley entitled to attendant care benefits during the following periods:
From December 28, 2010 to June 30, 2011
From June 30, 2011 to present.
Are attendant care benefits payable retroactively?
Is the Fund required to pay attendant care benefits during Colin Veley’s in-patient stays at Campbellford Memorial Hospital, Kingston General Hospital, Sunnybrook Hospitals and Lyndhurst and/or Toronto Rehab rehabilitation centres?
Is the Fund entitled to deduct amounts received by Colin Veley from AXA for attendant care and if so how much?
Is Colin Veley entitled to a Special Award?
Is Colin Veley entitled to interest?
a. Colin Veley is not entitled to attendant care benefits from December 28, 2010 to June 30, 2011;
b. Colin Veley is entitled to attendant care benefits from June 2011 to December 2012, in the amount of $9,432.25 less monthly amounts received from AXA for attendant care benefits up to a maximum payable amount of $6,000.00.
Retroactive attendant care benefits were not relevant issues in this arbitration.
The Fund is not required to pay any attendant care benefits during Colin Veley’s in-patient stays at Campbellford, Kingston, and Sunnybrook hospitals and Lyndhurst and/or Toronto Rehab rehabilitation centres.
The Fund is entitled to deduct the full monthly attendant care amounts received by Colin Veley from AXA for attendant care.
Colin Veley is not entitled to a Special Award.
Colin Veley is not entitled to interest.
It is undisputed the Mr. Veley was injured in the first and second accidents, and that they left him a catastrophically impaired paraplegic with use of only one arm. It was evident from the testimony that the Mr. Veley requires around-the-clock care. Following his second accident Axa paid him $6000 per month upon his discharge from hospital for accident and attendant care benefits. He claims he is also entitled to $6000 per month in attendant care benefits for the period between his first and second accident.
Mr. Veley claims he was discharged from the hospital after the first accidents to his mother’s home. She was not able to care for him and he relied on family and friends for car and rides to the pharmacy. He could not recall the names of people who assisted him or how, nor could he provide proof of care. He did not attend a specialist appointment or rehab as he had no way to going to the appointments. He presented various Form 1 documents from different OTs for the period between the first and second accident and the period he was in the hospital for the second accident. He claims he should not be required to provide the proof outlined in section 3(7)(e) of the schedule on the basis the Arbitrator can waive the provisions under certain circumstances. He argues the Fund ought to have known of his needs for attendant care benefits given his loss of use of an arm, that he lived with his mother and since a retroactive Form 1 had been submitted to them.
The Arbitrator did not agree with Mr. Veley’s position and preferred that of the Fund. The Fund acted diligently as the correspondence showed. Mr. Veley had been asked to provide proof of expenses for attendant care, nor did he provide the additional information required after the retroactive Form 1 was submitted. Mr. Veley finally provided an OCF-6 in the amount of $237, 133.5 with no breakdown, invoices or other details. When he finally presented the Fund with the names and phone numbers of 5 people that provided services only one could be reached and he claimed to be a neighbour who mowed the lawn and shovelled the drive. He’d never been in the house. No attendant care providers attended the hearing or gave affidavits.
The Arbitrator took the position that the Fund acted appropriately. The accident was reported to them over one year after it happened and by then Axa was paying benefits and Mr. Veley’s needs were being met. The issue then becomes whether or not an insured person can rely on two sets of benefits at the same time. Mr. Veley should not benefit from a windfall collecting benefits twice.
The Arbitrator found the Fund liable to contribute to the monthly attendant care needs up to any monthly maximums. Once entitlement is determined with respect to attendant care needs after the second accident the amounts received from the second accident are deductible from the first accident. Mr. Veley is entitled to attendant care benefits from July 2011 to present less monthly amounts received for attendant care benefits from AXA. Mr. Veley will receive no attendant care benefits while he was in an OHIP funded facility. Mr. Veley did not provide any evidence to show what attendant care was received in addition to the care provided by hospital staff.