Antoinetta Valle and Aviva Canada Inc., FSCO A04-000773

FACTS:

The case is disputed for the benefits not received by the applicant involving her two accidents, the first one being on October 29, 2003 and the second one May 9, 2004.  The present issue arose when the respondent, Aviva Canada Inc., the applicant’s insurance provider, terminated the applicant’s benefits such as attendant care, housekeeping services and caregiver from June 25th to December 8, 2004 to which the applicant claimed to be entitled to under The Statutory Accident Benefits Schedule. The benefits were not resumed until December 8, 2004, the date on which the applicant submitted to orthopedic evaluation. Moreover, the applicant argues the two pain relief treatments denied on the basis of being considered unreasonable and unnecessary by the respondent should be paid for.

In the present case, the applicant claimed to have sustained soft tissue injuries as well as psychological injuries due to the motor vehicle accidents, making her unable to carry on her daily activities such as taking care of herself, her mother and her grandson, Jonathan. The applicant supports her proposition of being entitled to the above denied benefits based on recommendations by an occupational therapist, Ms. Farah Khan and Dr. Chan, who examined her and recommended caregiving and housekeeping assistance for her.

The respondent, Aviva Canada Inc, takes a position that several medical examinations conducted by them reveal the applicant’s injuries to be temporary and of medical tenderness with the ability to heal rapidly, relying on the reports Dr. Joel A. Finkelstein. Also, the respondent seek to submit the applicant’s failure to attend medical examinations scheduled by the respondent as a factor in denying the additional attendant, caregiver, and housekeeping benefits. Thereby, relying on these expert opinions, the respondent takes a position that it does not prevent Mr. Valle from taking care of her mother, grandchild and her home and herself as she was able to before the accidents.

ISSUES:

1. 1. Is Ms. Valle entitled to additional attendant care benefits?
2. Is Ms. Valle entitled to additional housekeeping benefits?
3. Is Ms. Valle entitled to additional caregiver benefits?
4. Is Ms. Valle entitled to recover a special award in respect of Aviva’s refusals to pay additional caregiver, housekeeping and attendant care benefits and in respect of Aviva’s decision to suspend benefits from June 25, 2004 to December 8, 2004?
5. Is Ms. Valle entitled to additional medical benefits?

LAW:

The Statutory Accident Benefits Schedule– Accidents on and after November 1, 1996. O. Reg. 462/96, s.2.[2]

The case is brought in pursuant to Insurance Act, R.S.O. 1990, c.I.8.

ANALYSIS:

1)      On May 15, 2004, post second accident, as the applicant was assessed by an earlier occupational therapist, Ms. Farah Khan, was determined to have required 17.75 hours a week to attend for dressing, undressing, grooming, feeding, personal hygiene, coordination of care, exercise, skin care and many other personal activities, costing $932.26 per month. On a second assessment by a registered nurse, on November 11, 2004, Ms. Valle was still assessed as requiring an attendant for 4.74 hours for dressing, undressing, feeding and personal hygiene at a cost of $194.83 per month.

2)      The applicant herself testified and provided information stated in the forms to Aviva along with the testimony of a housekeeper, Ms. Lina Cuzzolino, confirming that the applicant was in need of a housekeeping service. The arbitrator relied upon the following section of the Schedule in answering whether in the present case the applicant sustained injuries substantially affecting her ability to carry out daily functions:

  1. (1)The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. O. Reg. 403/96, s. 22 (1).

The arbitrator awarded the total amount of $733.86 for housekeeping services to Ms. Valle. In reaching this amount, the artibtrator considered the first in house assessment by a physiotherapist, Ms. Sheri Corriero, which stated the applicant required about 5.6 hours a week to account for activities such as dressing, undressing, personal hygiene and bathing. In addition to his, the second and post second accident assessment by an occupational therapist, Ms. Farah Khan, was also considered in which the applicant was assessed as requiring an attendant for similar activities above, requiring 5.09 hours a week in second assessment and 17.75 hours a week post second accident, respectively.By taking these assessments into consideration, the arbitrator deemed it necessary as stated in the above section, to allot housekeeping benefits to the applicant as she was substantially impaired, limiting her ability to attend to the needs of her family and conduct any home chores anymore.

 

3)      The arbitrator considers that although Ms. Valle provided some care for her grandson, Jonathan, including preparing his lunch and boarding him to school bus, but determines that these duties limit her role as a caregiver as described below under the Schedule. In pursuant to the following provision of the Schedule, the arbitrator decides the need for caregiver benefits in this case.

13.(1)The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

1. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

By referring to the above provision, the arbitrator decided that the applicant was not the primary caregiver of the child as he was in custody of his mother, Elsa, every evening and on the weekends and that just getting him ready for school would not constitute being under applicant’s primary custody. Additionally, in Ms. Valle’s position of requiring caregiver benefits to care for her mother is based on the two assessments by Ms. Farah Khan stating that it requires about 7 hours a week to dedicate the care needed to the elderly. The applicant is confirmed to be the primary caregiver of her mother and the latter was confirmed to be residing with the applicant, complying with the above provision to be considered a person needing a caregiver. Furthermore, Ms. Khan testifies that she observed the applicant’s mother requiring care for similar activities as the applicants such as mobility, personal hygiene, dressing, undressing and grooming.

4)   The arbitrator determines that Avivawas being unreasonable by withholding the applicant’s entitlement to the benefits under section 282 (10) of the Insurance Act. This section of the Act states the following:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.

The arbitrator considered the applicant’s unwillingness to cope with Aviva’s request for medical examinations to determine the extent of benefits that she was entitled to as a mitigating factor in determining the amount of special benefits awarded to her. However, the arbitrator significantly relied upon the application of the above provision in determining whether the applicant is entitled to special cost benefits, determined that Aviva unreasonably withheld Ms. Valle’s payment of her benefits between the time periods of June 25th, 2004 to December 8th, 2004.

5)  The treatment plans involving soft issue therapy and mobilsation, received by the applicant was considered necessary and reasonable and have considered being an expense to be borne by the respondent. In citing a case law General Accident Assurance C. of Canada and Violi, the arbitrator cited pain relief treatments as being reasonable and necessary. The DAC’s assessors’ opinion of the first such treatment being considered sufficient was due to the fact that they examined the applicant after she received her first treatment. Lastly, as Ms. Vella still was required to have caregiver and housekeeping services, that contributed to the fact that she was still suffering from the injuries effect and required further medical treatments.

CONCLUSIONS:

1. Due to the above factors taken into consideration, the additional attendant care benefits that the applicant is entitled to are a total of $2,352.46, plus interest in accordance with section 46 of the Schedule from November 4, 2004.

2. Ms. Valle is entitled to additional housekeeping benefits in the amount of $733.86, plus interest in accordance with section 46 of the Schedule from December 31, 2004.

3. In applying the rate of Form 1 as a guide, the arbitrator determined the total amount of $174.80 plus interest in accordance with section 46 of the Schedule from November 4, 2004 to be given for caregiver benefits to Ms. Valle.

4. By considering the above factor and totality of the benefits awarded to Ms. Vello in this arbitration, the arbitrator awards $500 including interest payable as the amount of special award benefits for suspension of benefits from July 22, 2004 to November 4, 2004.

5. Ms. Valle is entitled to an additional medical benefit in the amount of $1,523, plus interest in accordance with section 46 of the Schedule from April 20, 2004.

SIGNIFICANCE:

The significance of this case is that it demonstrates several real life incidents which individuals involved in motor vehicle accidents are faced with. It was to be noted that the arbitrator truly played the role of an impartial decision maker as he considered the consequences of several things like such as weighing the mitigating factors, the factors in favour of the opposite party, Aviva, along with the factors in favour of the applicant in making his decisions and presented conditions upon which the decision would have been reversed. Moreover, this case signifies that although one party to a proceeding was deficient in performing their duties, as the applicant failed to attend several medical examinations scheduled by Aviva, but this would not relieve the obligation of the other party to continue to perform their duties in a good faith, to provide the applicant with her entitled benefits.

Dhanvir Sohal is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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