October 10, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: January 16, 2015
Heard Before: Adjudicator Stuart Mutch
EB alleges that she was injured as the result of a car accident on December 9, 2010. She applied for caregiving benefits, attendant care and housekeeping benefits from Security National Insurance Company, but the parties were unable to resolve their disputes through mediation, and EB applied for arbitration at the Financial Services Commission of Ontario.
Is EB entitled to receive Attendant Care Benefits in the amount of $816.46 per month from December 9, 2010 to September 25, 2011 and $615.80 per month from September 26, 2011 to December 9, 2012?
Is EB entitled to Housekeeping and Home Maintenance expenses in the amount of $100.00 per week from December 10, 2010 to December 9, 2012?
Is EB entitled to a Caregiver Benefit in the amount of $250 per week, from December 10, 2010 to date and ongoing?
Is EB entitled a Special Award?
EB is not entitled to Attendant Care Benefits.
EB is entitled to Housekeeping and Home Maintenance expenses in the amount of $77 per week from June 27, 2011 to February 9, 2012 and $44 per week from February 10, 2012 to July 22, 2012.
EB is not entitled to a Caregiver Benefit.
The parties may make submissions regarding a Special Award.
EB was 47 year old divorced mother of two adult children, and a 12 year old, who was living temporarily with her parents. She worked as supply teacher for a Montessori school. She had a history of fibromyalgia dating back to 1996. She testified that this condition improved dramatically with her last pregnancy in 1998 and that this condition was well under control at the time of the accident.
She had been in two previous car accidents in 2008 and 2009 having been rear ended in both. EB had recovered from the accident in 2008 and was on her way to recovering from the 2009 accident. She hadn’t missed any time from work with either. Prior to the two accidents she lived an active life of cycling, camping, canoeing, and skiing. She was also involved in her community and had an active family life.
At the time of the latest accident EB was stopped at a red light when she was struck from behind. The force of the collision was so great that her airbag deployed and her seat broke. Her car was pushed into the car ahead, which in turn collided with the car in front of it. EB was uncertain if she lost consciousness. She was taken to Hospital by ambulance. She stated that she had “excruciating pain” in her upper shoulders, lower back, and shins. Her legs and chest were x-rayed and an ultrasound was done of her internal organs. No fractures or internal bleeding was noted, however there were multiple bruises. She was given a prescription for Percocet and discharged the same day.
Immediately after the car accident she was in a great deal of pain and her chiropractor was treating her at her parent’s house where she was living. Her family were driving her to appointments and she had hired a care attendant to help her bath and shower, brush her teeth and get dressed. Over the next 3-4 months she could dress herself and after a year she could bath herself and do light housekeeping. She was unclear when she started driving again. People helping her with her were mother, her father, her sister and housecleaners who also did some attendant care.
The question before the Arbitrator centred caregiving, attendant care and housekeeping expenses, and specifically on the meaning of “incurred”. The 2010 Schedule clearly stipulated that an expense is not incurred unless:
The insured person received the goods and services to which the expenses relates;
The insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and
the person who provided the goods or services, 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 sustained an economic loss as a result or providing the goods and services to the insured person.
Security National takes the position that EB’s claim for accident benefits is subject to the incurred expense requirement and that EB has not provided adequate proof that she paid the expense. They also argue that with the exception of the cleaning personnel engaged by Mr. and Mrs. B., none of the people who provided the goods and services did so in the course of their employment, occupation or profession and that none of those individuals, specifically, her parents, Mr. and Mrs. B., or her sister, Ms. M.B., sustained an economic loss as a result of providing those services.
EB argues that because her policy was a transitional policy (one that was in place on September 1, 2010, the date the Schedule came into force and that had not expired by the time the accident occurred), the above provision does not apply to her accident. Counsel cited several cases as authority for the proposition that EB’s rights under her policy of insurance crystallized at the time she entered into that contract and that those rights cannot be retroactively altered or removed by subsequent legislation.
The Insurance Act contains provisions which clearly contemplates amendments to the SABS that will affect the coverage provided in existing policies. In other words, the terms of an automobile insurance policy are not fixed for its entire duration, suggesting that the terms of an existing policy can be changed “mid-stream” by an amendment to the Schedule.
The Arbitrator noted however that it is a generally accepted principle that legislation should not have a retrospective effect on substantive rights. The Arbitrator accepted that the “incurred” definition found in the 2010 Schedule would affect substantive rights, placing an evidentiary burden upon EB that could have a determinative impact on her right to receive or not receive benefits under the Schedule.
The Arbitrator reviewed the law and determined that that the rights and obligations resulting from a contract are usually created at the time of the contract itself. In this case, a motor vehicle accident is, by its very nature, uncertain and unplanned. In This case the Arbitrator determined that the right to benefits as set out in any of the Schedules, and incorporated into a policy of insurance, are contingent rights. Thusly, they are contingent upon the involvement of an insured person in a motor vehicle accident. There is no right to benefits in the absence of involvement in a motor vehicle accident. The motor vehicle accident can be said to be a condition precedent to the right to benefits. By that reasoning, in the circumstances of this arbitration, the rights of EB crystallized on December 9, 2010, the date of the accident, three months after the new Schedule came into force. The new schedule effectively provides that the benefits of the “old regulation” are deemed included in the car insurance policy until its expiry in transitional cases. The legislature did not exclude the definition of incurred from applying to transitional policies.
As such the Arbitrator found EB’s rights under the policy vested on the date of the accident. The definition of incurred found in section 3(7)(e) of the Schedule applies to her claim for accident benefits. Unless those providing caregiving, attendant care and/or housekeeping services were doing so in the course of employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, they must demonstrate that they have sustained an economic loss as a result of providing goods or services to the person before Security National can be obliged to pay a benefit.
Under the Schedule attendant care benefits are payable for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. EB submitted three Assessment of Attendant Care Needs Forms. EB was cared for by her parents and sister immediately following her accident. EB did not track how often of when her sister came. EB’s parents provided invoices for attend care services.
EB’s father, Mr. B, failed to prove he incurred an economic loss for the period through his income taxes. Mrs. B did not testify at the hearing due to failing health. An examination of her income tax returns showed that although her income fell It was not “as a result of providing goods and services” as required by the Schedule. EB’s sister failed to keep records of exact expenses or times she helped her EB. She provided some evidence of having taking time off but again, without proof of assisting her sister, nor showing an economic loss. The Arbitrator concluded that the attendant care benefits claimed by EB for services provided by her parents and her sister were not incurred by EB in that her parents and sister did not demonstrate a quantifiable economic loss in doing so.
EB testified that cleaners hired by her parents would occasionally assist her with showering and washing her hair. However there was no evidence provided as to the length of time spent on this activity or how frequently it occurred. There was no reference to attendant care activities in the invoices provided by outside cleaners, as detailed below. The Arbitrator therefore concluded that he could find no economic loss occurred where the loss has not been quantified.
The Schedule provides the insurer pay for reasonable and necessary additional expenses incurred by or on behalf of the insured person for housekeeping and home maintenance services if as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. Since at the time of the accident EB was covered by a transitional policy it provides for a housekeeping and home maintenance benefit payable in the circumstances described.
At the time of the accident EB was living in her parents’ home with her daughter. They were occupying two bedrooms and sharing a bathroom. She testified that she was cleaning the areas that she and her daughter occupied in her parents’ home, doing laundry, making meals for her daughter and herself, sometimes making meals for the entire family and occasionally assisting her parents with household chores and accompanying them to medical appointments.
EB’s parents testified that prior to the accident they had a cleaning person who came to the home for approximately seven hours every two or three weeks. EB indicated that the cleaning person did the vacuuming before the accident. Both testified that after the accident EB’s parents increased the frequency of visits by the hired cleaners to once or twice per week. Evidence included detailed invoices from the cleaners from the period of the accident to 2012. The Arbitrator was required to determine whether and for how long EB was unable to do her usual portion of housekeeping and maintenance tasks, and how much additional help was required to perform the work. The Arbitrator accepted the evidence that immediately after the accident EB was in extreme pain, however, there was no documentary evidence substantiating the hiring of professional or outside housecleaners prior to June 27, 2011 or beyond July 22, 2012.
The Arbitrator reviewed the evidence before him including physiatrist reports, and OT report (it should be noted however that EB suffered from so much pain that the initial assessment that took place in December 2011 had to be discontinued), and a psychological evaluation all from the period in question.
The Arbitrator found EB to substantially disabled from her housekeeping and home maintenance tasks until February 9, 2012. He noted though that EB was not engaged in extensive household duties. The Arbitrator awarded housekeeping assistance in the amount of four hours or $44 per week for the period February 10, 2012 to July 22, 2012 was reasonable and necessary.
The Schedule provides that the insurer shall pay a caregiver benefit to or for an insured person who sustains a catastrophic impairment as a result of an accident. The Schedule provides for the continuation of certain benefits under a transitional policy, and removes the requirement that an insured be catastrophically impaired.
At the time of the accident EB’s daughter, N.B, was 12 years of age, was residing with EB and EB was her primary caregiver. Prior to the accident EB testifies she cooked and cleaned for her daughter, drove her places, helped with her homework, and helped her with her learning disability. Following the accident EB testified that she had difficulty concentrating on helping with school work, felt dizzy and nauseous when reading to her daughter, and watching TV. She thought that her daughter had become more distant. EB’s parents provided invoices for care of the daughter for 5-7 hours a day.
The Arbitrator accepted EB’s evidence that, for an indeterminate period after the accident, she was substantially unable to care for her daughter, and that her parents and her sister assisted her in this regard. However, as with the claims for attendant care and housekeeping, caregiving expenses must meet the definition of “incurred” as set out in the Schedule. EB’s claim for caregiving benefits were therefore denied.