March 06, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Keeping and Aviva – Attendant Care Benefits; CAT impairment confirmed; Insured fails to provide accurate proof of his attendant care needs and expenses; claim for ongoing attendant care benefits denied; significant changes in personal circumstances warrant examination of reasonable attendant care needs
Keeping and Aviva
Date of Decision: October 31, 2016
Heard Before: Adjudicator Marcel Mongeon
Mr. Michael Keeping was seriously injured in a car accident on June 4, 2013 when he was the unlicensed driver of the car which hit a tree at high speed killing the passenger in the front seat and seriously injuring two passengers in the rear. Mr. Keeping sought accident benefits from Aviva but when the parties were unable to resolve their disputes through mediation Mr. Keeping applied for arbitration at the FSCO.
- Is Mr. Keeping entitled to receive an attendant care benefit and, if so, for what periods and in what amounts?
- Mr. Keeping shall receive an attendant care benefit at the rate of $3,526.34 per month from September 15, 2013 to December 31, 2013. No other benefit is payable.
Based on Form 1s Mr. Keeping seeks payment of attendant care benefits for the amounts as follows for three specified time periods:
- The period from June 4, 2013 to July 27, 2013 at $6,000.00 per month;
- The period from July 28, 2013 to December 31, 2013 at $3,526.34 per month;
- The period from May 20, 2015 and ongoing at $6,000.00 per month.
Mr. Keeping is not making any claim for attendant care benefits for the period of his incarceration. Mr. Keeping has been designated by Aviva as catastrophically impaired within the meaning of the Schedule. The practical implication of that designation is to increase the monthly limits of the attendant care benefit to $6,000.00/month and the aggregate limit on the benefit to $1 million.
Aviva resists payment of attendant care benefits on the basis that they were not “incurred” within the meaning of s. 3(7)(e) of the Schedule. In turn, Aviva asserts that there has been no proof of an economic loss incurred by any of the purported caregivers.
Mr. Keeping was charged and pleaded guilty to offences related to the accident. As a result of the operation of section 31 of the Schedule, Mr. Keeping was not eligible for a non-earner benefit or housekeeping benefits. His claim for benefits under the Schedule is limited to this claim for attendant care benefits.
Mr. Keeping was treated at the St. Catharines General Hospital but because of the severity of his injuries he was transported by air ambulance to the Hamilton General Hospital on June 4, 2013. On arrival in Hamilton, he was unconscious. Mr. Keeping was discharged from hospital on June 21, 2013. After his discharge, he stayed with his mother for a while. Eventually, Mr. Keeping went to stay with another friend of his, Larry Davis, for about 3 weeks to a month.
In early September 2013, Mr. Keeping surrendered himself to police to be arrested on charges relating to the accident, and he was detained in custody until a bail hearing. At the bail hearing, Mr. Keeping’s friend, Ms. Christina Graham, acted as his surety by posting a $10,000.00 bond. Ms. Graham took Mr. Keeping into her home on his discharge from custody to provide a watchful eye on him (as his surety). She could provide him with a stable environment where he would be cared for. She provided reminders as to appointments and provided transportation as needed. His confinement in Ms. Graham’s home was also a condition of his bail release. Ms. Graham’s worked from home which allowed for an easier task in watching over Mr. Keeping.
Ms. Graham’s “will say” statement was consistent with her testimony. The Arbitrator noted the following to be important facts relating to Ms. Graham’s housing of Mr. Keeping:
Ms. Graham was receiving $300.00 to $350.00 per month from Mr. Keeping for everything that Ms. Graham provided. This included providing Mr. Keeping with all of his groceries. The source of the money from Mr. Keeping was his receipt of social assistance through the Ontario Works program. Ms. Graham had a television and internet installed in Mr. Keeping’s room.
The Arbitrator accepted that Ms. Graham had previously rented this room to an arm’s length tenant for $500.00 per month not including groceries. Although she had no bills showing this, she testified that she incurred increased costs. The Arbitrator found her testimony on this point credible and reasonable and accepted she incurred higher costs.
When required, Ms. Graham would drive Mr. Keeping to legal and medical appointments. She did not receive any reimbursement of gas or parking on such trips. Ms. Graham was not able to provide a record of dates and places for such trips. It was pointed out by Aviva that on reviewing the OHIP statement for Mr. Keeping, there were no entries for any services paid by OHIP between September and December 2013. The Arbitrator found that there were likely no more than 5 such trips during the period and there would be relatively modest expenses for such trips. Ms. Graham testified that she “mothered” Mr. Keeping. The Arbitrator found this testimony credible and that it is a reasonable description of the level of care that was provided to Mr. Keeping.
Ms. Graham acknowledged that she had no formal training as a personal support worker however, the Arbitrator found that Ms. Graham did provide Mr. Keeping with services as an aide or an attendant, and was satisfied with her testimony that the activities she provided to Mr. Keeping were consistent with the activities for an aide or attendant as described in the Form 1. The Arbitrator found that Ms. Graham may have had an income loss because of assisting Mr. Keeping.
In December 2013, the relationship between Mr. Keeping and Ms. Graham came to an end. The police advised Ms. Graham that if Mr. Keeping was not in her custody, her surety was at risk, and the police took Mr. Keeping into custody early in January 2014. On being taken into custody, Mr. Keeping pled guilty to the pending charges and was held in custody until discharged on May 19, 2015. Mr. Keeping went to live with his grandmother for a few days. Mr. Keeping’s grandmother assisted Mr. Keeping by giving him $1,500.00. Eventually, Mr. Keeping was admitted to the Peel Youth Centre to assist him with his transition from detention back into society. During his stay at the youth centre, Mr. Keeping was provided assistance from staff and other residents.
On leaving the Peel Youth Centre, Mr. Keeping has stayed with several different friends who helped him financially. However, no evidence was presented of any services being received in the detail of Form 1. Surveillance reports show Mr. Keeping walking and riding a bicycle in and around his friends’ address, smoking and interacting with others.
The Arbitrator reviewed facts relating to the assessments of Mr. Keeping’s attendant care needs. Some of these were conducted after the actual periods of need.
Aviva attempted to assess attendant care needs of Mr. Keeping while he was detained but were unable to address insurer questions pertaining to attendant care for him suggesting that once [he is released an In-Home assessment is recommended to determine if any attendant care is required. Aviva has assessed attendant care needs shortly before the Hearing in this matter. The report and Form 1 relating to that assessment were not available at the time of the Hearing.
The Arbitrator noted that attendant care expenses must be reasonable and necessary, and incurred for services provided by an aide or attendant. The Arbitrator reviewed the law, and the evidence before him, and determined that the only time during which services were provided to Mr. Keeping as an aide or an attendant were while he was in the hospital, and from the middle of September 2013 until December 31, 2013 by Ms. Christina Graham.
Does economic loss have to be periodically proved or is it a once and for all test? Mr. Keeping has argued that economic loss need only be shown at one point by a friend or family member and, thereafter, it is established for all other periods. Aviva argues the contrary.
The Arbitrator reviewed the law and determined that the economic loss test is a “rough check” on the payment of attendant care benefits. The rough check requires the economic loss be shown and, that it occurs for each expense. Each time Aviva is required to consider a monthly payment of attendant care services, Mr. Keeping has an onus to show the economic loss. In the case of multiple people providing services, as Aviva has argued, those multiple people must each provide evidence of economic loss.
The Arbitrator was satisfied that Ms. Christina Graham has established an economic loss for each of the months or partial months for the period between September 15, 2013 and December 31, 2013. However, other than for Ms. Graham, no evidence was provided that anyone caring for Mr. Keeping sustained an economic loss at any other time.
Does the July 2014 assessment continue to be operative?
The Arbitrator questioned the ability of the OT to assess Mr. Keeping’s care needs while he was in detention. No evidence was provided that Mr. Keeping was unable to cope with the prison environment or that special adjustments had to be made. The Arbitrator questioned how Mr. Keeping’s attendant care needs went up from the monthly amount of $3,526.34 established in the actual environment that care was being delivered by Ms. Graham in November 2013 to over $6,000.00 in an artificial environment behind Plexiglas in the Detention Centre in July 2014.
In this case, each time Mr. Keeping’s living circumstances changed in a significant fashion, it is reasonable for his attendant care needs to be determined in the new environment. As a related conclusion, when Mr. Keeping was released from detention, that reset the attendant care assessment process requiring a new Form 1. Being in a prison is a very different set of circumstances from what Mr. Keeping would experience living on his own. Thus, any assessment performed in the prison environment would no longer be accurate or reflective of the challenges and circumstances that Mr. Keeping faces which requires attendant care to compensate.
On this basis the Arbitrator concluded that that the Form 1 of July 2014 does not represent an accurate assessment of Mr. Keeping’s attendant care needs after his release from prison. Accordingly, there is no appropriate Form 1 after that time on which to base any decision related to the amount of attendant care required.
What is the correct amount of the benefit and during which periods?
Based on the answers to the previous questions, there is only one period for which attendant care benefits satisfy the requirements of the Schedule. This is for the period from September 15, 2013 to December 31, 2013 in the amount established by the Form 1: $3,526.34 per month.