March 08, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: January 9, 2014
Heard Before: Adjudicator Lawrence Blackman
The Arbitrator’s January 16, 2013 decision is confirmed and the Notice of Appeal is dismissed.
Mr. Kevin Simser, was seriously injured in a November 10, 2010 car accident. He was hospitalized until February 1, 2011. He was separated from his wife at the time. His wife and daughter moved home for a year to look after him. Mr. Simser applied for SABS and for attendant care benefits, and property maintenance services outlined in the Form 1of $2459.01 monthly. Aviva confirmed it would pay the nursing company directly $2459.01 and a maximum of $100 weekly for housekeeping from October 1, 2011 onward.
Mr. Simser requests attendant care benefits of $2,459.01 per month from February 1 to October 1, 2011. Housekeeping and home maintenance benefits of $100 per week from February 1 to November 1, 2011. The dispute is whether both Mrs. Simser and her daughter sustained an economic loss as a result of providing attendant care and housekeeping/home maintenance services to Mr. Simser.
REASONS FOR DECISION
I. BACKGROUND AND NATURE OF THE APPEAL
This appeal concerns the expenses prerequisite in clause 3(7)(e) of the 2010 Schedule which states that, subject to subsection (8) an expense in respect of goods or services referred to in the 2010 Schedule is not incurred by an insured person unless,
the insured person has received the goods or services to which the expense 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 of providing the goods or services to the insured person
The first issue in this appeal pertains to the requirement that economic loss be sustained as a result of providing the services to the insured person. The second issue pertains to the alternate requirement that the services be provided in the course of the employment, occupation or profession of the provider.
Adjudicator Blackman reviewed the law in this regard and found that the 2010 Schedule does not define “economic loss”. The words “goods or services” in clause 3(7)(e)(iii)(b) should be broadly construed to refer to a number of kinds of goods and services, including the services provided by an aide or attendant. He also found that the Schedule intended to provide a check on payments to family caregivers and that the loss sustained was a rough check on attendant care costs.
As long as the care is provided and the family member who provided the attendant care sustained an economic loss in so doing, the amount payable was not restricted to the 40 hours of paid employment per week foregone by the family member. Where no economic loss is sustained, no attendant care benefits are payable in respect of the care provided by a family.
Adjudicator Blackman reviewed the evidence before him and determined that Mrs. Simser did indeed give up her own apartment and move in with Mr. Simser. She claimed lost time from work, and other losses. She did not, however provide a detailed accounting of the nature of her economic losses. He found her testimony lacking. Her alleged losses of income were unspecific, unsubstantiated, unquantifiable, abstract or hypothetical. There was no proof of loss of potential income. She provided no substantiating documentation from her workplace regarding her claimed loss despite numerous requests from Aviva.
Adjudicator Blackman took an adverse inference from the absence of documentation. He found Mr. Simser had not met his evidential onus of establishing that Mrs. Simser sustained an economic loss in the form of lost wages as a result of providing such services. Likewise there was no evidence provided of his daughter’s losses. The daughter did not appear at the hearing.
As the Court of Appeal stated where no economic loss is sustained, no attendant care benefits are payable in respect of care provided by a family member even if the family member provided care that would otherwise be provided by someone in the course of their employment, occupation or profession that would require the insurer to pay attendant care benefits.
Adjudicator Blackman was not persuaded that the Arbitrator erred in law in finding that the Appellant was not entitled to housekeeping and attendant care benefits for services provided by Julie and/or Kasey Simser. Accordingly, the Arbitrator’s order in this regard is confirmed and the appeal is dismissed.