Neutral Citation: 1992 ONICDRG 45

File No. A-000920

BETWEEN:

ANH LE

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

The Applicant, Anh Le, was injured in a motor vehicle accident on April 6, 1991. She applied for and received accident benefits payable under Regulation 273/90 (the "No-Fault Benefits Schedule") under the Ontario Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides for the no-fault benefits set out in the No-Fault Benefits Schedule, (the "Schedule").

The Insurer continues to pay weekly No Income and Primary Caregiver Benefits to the Applicant, under section 13 of the Schedule.

In addition to these benefits, the Applicant claims reimbursement of expenses incurred for housekeeping and babysitting services performed by Bien Thi Nguyen, following the motor vehicle accident, under the Supplementary Medical and Rehabilitation expense provisions of section 6(1) (f) of the Schedule.

The Insurer refused to pay these expenses.

The Applicant applied for mediation of her dispute with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issues to be determined at the arbitration hearing are as follows:

Are expenses in the amount of $225.00 per week, for housekeeping and babysitting services provided by Bien Thi Nguyen for 53 and 1/2 weeks (May 4, 1991 to May 15, 1992) recoverable under the Supplementary Medical and Rehabilitation expense provisions of sections 6(1) (f) of the Schedule?
If such expenses are recoverable under section 6(1) (f), is the Applicant entitled to claim such expenses, while also receiving weekly No Income and Primary Caregiver Benefits under section 13 of the Schedule?

The Applicant also claimed interest on any amounts found to be owing and her expenses incurred in respect of the arbitration under section 282(11) of the Insurance Act.

The decision is:

Expenses in the amount of $200.00 per week, for babysitting services rendered by Bien Thi Nguyen, for a 4½ week period while the Applicant was in hospital, are recoverable under the Supplementary Medical and Rehabilitation expense provisions of section 6(1) (f) of the Schedule.

(a) The services performed by Bien Thi Nguyen during the remaining 49 weeks claimed are neither housekeeping nor babysitting services. These services are more appropriately related to caring for the Applicant after the accident.

(b) The application of section 7 Care Benefits to this case was not argued. I will remain seized of the matter to permit counsel to re-attend to make submissions concerning this issue.

The Applicant is entitled to reimbursement of her babysitting expenses, under the Supplementary Medical and Rehabilitation expense provision 6(1)(f), while also receiving No Income and Primary Caregiver Benefits under section 13 of the Schedule.
The Applicant is entitled to receive interest on the sum of $900.00 pursuant to the provisions of section 24 of the Schedule.
The Applicant is entitled to her expenses incurred in respect of the arbitration, under section 282(11) of the Insurance Act.

An arbitration hearing was conducted at North York, Ontario, on September 10 and 11, 1992, before me, Janice Mackintosh, Arbitrator.

Present at the hearing were:

Applicant:

Anh Le

Applicant's

Jayson Schwarz

Representative:

Barrister and Solicitor

Insurer:Represented by:

Eileen Bagley, Adjuster

Insurer's

Edmund Kent

Representative:

Barrister and Solicitor

The following people testified at the hearing:

Anh Thi Ngoc Le, Applicant

Bien Thi Nguyen, provider of services

Hong Ngoc Le, Applicant's older brother

Tuan Ngoc Le, Applicant's younger brother

Ut (Julie) Thi Ngoc Le, Applicant's younger sister

Xua Le, Applicant's mother

Dr. Reuel (Sonny) Talangbayan, Applicant's family doctor

Interpretation services in the Vietnamese language were provided by Dat Nguyen (no relation to Bien Thi Nguyen) of Global Translation and Interpretation Services, Inc.

Documents before the Arbitrator:

Report of Mediator, dated March 31, 1992

Application for Appointment of an Arbitrator in Form 4, dated March 31, 1992

Response by Insurer in Form 5 dated May 6, 1992

Letter to parties from Arbitrator Palmer, confirming pre-hearing discussions, dated June 12, 1992

Exhibits:

Brief of medical reports, clinical notes, medical and hospital records, pertaining to the medical condition of the Applicant;
Three pages stapled with 14 receipts for the period April 15, 1991 to May, 1992.

Evidence:

Testimony of Anh Le:

The Applicant, Anh Le, testified that she and her two and a half year old daughter immigrated to Canada from Saigon, Vietnam, on April 3, 1991. Just three days after her arrival, the Applicant was involved in a motor vehicle accident in which she was injured.

Anh Le left her home in Vietnam to join other members of her immediate family who had immigrated to Canada in the early part of 1980. The Applicant intended to live independently from her family with her daughter, learn the English language, and establish a career in business. Tragically, her plans were destroyed by the motor vehicle accident.

Anh Le was a passenger in the back seat of a car driven by her older brother, Hong Ngoc Le. The car in front of them suddenly stopped. The car behind them was travelling very fast and failed to stop, ramming their car into the car in front. Upon impact, Anh Le was thrown back and forth several times. Everyone in the car complained of pain. There was a great deal of confusion. Anh Le had just arrived in the country, and spoke no English. She did not know what to do. She was afraid and said nothing about her injuries.

Later that day, she complained of back pain. The following day she was taken by her family to see Dr. Reuel (Sonny) Talangbayan. In a medical report dated September 6, 1991, Dr. Talangbayan recorded that his physical examination of the Applicant on April 7, 1991 revealed a female patient in "acute distress". (Entry found under Tab 2, at page 29 of Exhibit 1). Dr. Talangbayan's clinical note records that he ordered x-rays, prescribed analgesics, and recommended rest. (Found under Tab 8, at page 78 of Exhibit 1).

The Applicant saw Dr. Talangbayan several times over the next few weeks. She repeated her earlier complaints of weakness and back pain, as well as reporting sleep disturbances, urinary disturbances and constipation.

In the early period following the accident, the Applicant rested and took the medications Dr. Talangbayan prescribed. She felt too sick to go out, except to visit the doctor. Family members cared for her young daughter.

During the night of May 4, 1991, the Applicant wakened her family with excruciating back pain. Family members took her to the emergency room of the Mississauga Hospital. The Applicant was admitted to hospital the night of May 4, 1991.

The Applicant was unable to give the precise dates of her various admissions and discharges from hospital. Nor was she able to describe the various surgical procedures that were performed.

Counsel for the Applicant referred me to the extensive hospital records, medical reports, clinical notes and records gathered in Exhibit 1. A review of these medical records established that Anh Le was in hospital for three periods of time:

May 4 to May 13, 1991: Observation, testing, and fitting of a Jewett body brace in preparation for surgery to stabilize the Applicant's lumbar spine by fusion. (Described in detail in hospital records included under Tab 1, page 17 of Exhibit 1).
May 20 to 31, 1991: Dr. Clements, an orthopaedic surgeon, and Dr. Izukawa, a neurosurgeon, attempted to reduce the Applicant's mechanical back pain and stabilize her fracture by a posterior pedicle screw fixation from T12 to L2 with bone graft from her left iliac crest, internal fixer rods, pins and Schanz screws. (Described in detail in hospital records found under Tab 1, at pages 8 through 11 and 17 of Exhibit 1).
May 30, 1991: Surgical procedure to determine the degree of bladder dysfunction resulting from her compression fracture. (Described in detail in hospital records found under Tab 1, at pages 12 and 13 of Exhibit 1).
December 9 to December 21, 1991: Anterior decompression and fusion, to decompress the conus and stabilize the spine. Surgery involved iliac crest strut graft fusion and lateral plate stabilization. Surgery was conducted on December 12, 1991. (Described in detail in hospital records found under Tab 1, at pages 23 to 27 and pages 1, 4 and 8 of Exhibit 1).

The Applicant testified that she found it very difficult in hospital. While in hospital, her family members were preoccupied with visiting her and attempting to deal with her despair. Bien Thi Nguyen cared for the Applicant's daughter at home.

Anh Lee recalls that, during the seven months between her first and second operations, her condition seemed to get worse rather than better.

The Applicant's evidence concerning her post-operative recovery process is confused. She testified that her recollection of this period is blurred. She attributed this confusion to the pain she was experiencing, her irregular sleeping patterns which caused her to lose track of days and nights, and the medications she was taking. Dr. Talangbayan confirmed during his oral testimony that some of the medications he prescribed for the Applicant could result in drowsiness, memory loss, dizziness and confusion.

Anh Le recalled that Bien Thi Nguyen was already there when she first arrived home from the hospital (May 13, 1991). She cannot remember whether she had hired Bien Thi Nguyen before, during, or after her first hospitalization.

The Applicant's evidence concerning the amount she arranged to pay Bien Thi Nguyen was somewhat confused. She recalls that she agreed to pay $400.00 every two weeks, but also recalls an agreement to pay $450.00 every two weeks, during periods when Bien Thi Nguyen worked longer hours. She was shown the receipts, written in English, which were marked as Exhibit 2. She could not identify these receipts because she does not read or write English. She confirmed that she asked her older brother, Hong Ngoc Lee, to prepare written receipts in English to reflect cash payments to Bien Thi Nguyen.

To the best of her ability, Anh Le described Bien Thi Nguyen's duties as follows:

Bien Thi Nguyen arrived at approximately 6:00 in the morning. She did not leave until other members of the family returned from work, school or other activities, to watch over Anh Le. The others returned anywhere from 4:00 to 7:00 at night. Bien Thi Nguyen worked five days per week.
Following each operation, Anh Le experienced periods of confusion and disorientation. She was unable to get out of bed. Bien Thi Nguyen made sure that Anh Le received her medication on schedule. She was there to attend to Anh Le's needs as they arose. She also watched over the child.
Each morning Bien Thi Nguyen washed first the Applicant and then her daughter. In the period following surgery, the Applicant could not get out of bed. Bien Thi Nguyen brought a pail of water to the Applicant's bedside. Later, she assisted the Applicant to the bathroom, helped the Applicant onto a chair in the bathtub and bathed her. The Applicant was weak and could not bend her back.
The Applicant suffered from both bladder and sphincter dysfunction. Following the accident, she had to wear diapers. She suffered incontinence during the night. Bien Thi Nguyen changed the Applicant's diapers, clothing and bed linen as required during the day. She also changed the child's bed as required. Bien Thi Nguyen regularly did the Applicant's laundry and included the child's laundry in the loads.
As the Applicant's condition improved, Bien Thi Nguyen assisted the Applicant to the bathroom. She assisted the Applicant to change her diapers and then she disposed of them downstairs, with the other household garbage. The Applicant could not bend, lower herself, or raise herself from the toilet unassisted.
For many months, the Applicant was confined to a second floor bedroom in her parents' house. The Applicant testified that she did not have the strength or balance to go up and down the stairs. The stairs were uneven and the Applicant feared falling. The Applicant and her daughter lived, ate, and slept, in this one room. Bien Thi Nguyen regularly cleaned the room for the Applicant. She kept the floor around the bed washed, particularly in view of the Applicant's incontinence and the problem of odours. She cleaned the area where the Applicant and her daughter ate their meals. Bien Thi Nguyen performed no other services for anyone else in the family, in any other part of the house.
Bien Thi Nguyen regularly brought food for the Applicant up from the kitchen, where Anh Le's mother prepared food for the whole family. For a period following each surgery, Anh Le was too sick to sit up and eat by herself. Bien Thi Nguyen fed both Anh Le and her daughter. As Anh Le's condition improved, she needed less help to feed herself. Bien Thi Nguyen continued to assist the child with her food. Anh Le was not able to go up and down the stairs to obtain food for herself.

With the passage of time, Anh Le's condition improved. She still experiences some bladder and sphincter dysfunction, however she is stronger and can now attend to her own toilet requirements, with the occasional assistance of her mother. She can prepare a pot of tea, provided the teapot is not a large one. She cannot carry weight, she cannot bend, she cannot change beds, clean or carry laundry. She can walk, supported by the Jewett body brace and feels confident enough to negotiate the stairs. She is not able to keep up with the needs of her young daughter. Since the departure of Bien Thi Nguyen around May 15, 1992, the Applicant has depended upon the help and support of her family to care for herself and her daughter.

Testimony of Bien Thi Nguyen:

The testimony of Bien Thi Nguyen supports that of the Applicant. While giving her testimony, Bien Thi Nguyen appeared elderly and somewhat frail. She had just recently left hospital. She expressed regret that she was not able to remember dates and specific time periods with total accuracy. However, she was able to give a clear picture of the nature of her duties and the condition of Anh Le during the time she worked for her.

Bien Thi Nguyen was an acquaintance of the Applicant in Saigon. She had not worked for the Applicant nor any one in the Applicant's family, prior to the motor vehicle accident. She was living in Ontario, with her adult children and her grandchildren, when she was asked to provide services for Anh Le. She testified that she was asked to come because Anh Le had been hurt in an accident and was sick.

Bien Thi Nguyen recalled that she worked for the Applicant for about a year. She could not precisely remember when she started to work, however, Anh Le was wearing a diaper and was very sick and weak when she began caring for her. Just as Anh Le was beginning to get better and walk around, Bien Thi Nguyen became ill herself and was hospitalized. This occurred in May 1992.

When questioned, Bien Thi Nguyen could not recall the living arrangements in the rest of the house nor the other occupants. Her dealings were almost exclusively with Anh Le and the child. She rarely left the bedroom in which Anh Le stayed. Her recollection was that generally, she, Anh Le, and the child were the only people in the house during the day. Bien Thi Nguyen did not leave Anh Le until someone, usually Anh Le's mother, returned to the house in the evenings.

Bien Thi Nguyen was very clear in her evidence that she received $400.00 in cash, every two weeks, for the services she provided for Anh Le. She was shown 14 receipts for various amounts, written in English, marked as Exhibit 2. She could not identify these receipts, as she does not read or write English.

Testimony of Hong Ngoc Le:

Hong Ngoc Le is the eldest brother of Anh Le. He testified that he did not reside in his parents' home. He was also injured during the car accident and was unable to work for some time. He visited the Applicant daily, after her surgery. He would see her after Bien Thi Nguyen had taken care of the Applicant's personal and hygiene needs. He was unable to estimate how long it took to care for the Applicant's daily needs as these were "women's concerns".

He helped the Applicant in other ways. He escorted her to numerous medical appointments, tests, clinics, and follow-up appointments. He went to the drugstore and filled numerous prescriptions. He did what he could to act as translator for the Applicant, although it became clear during the hearing that his skill in the English language is limited.

On the advice of a lawyer and at the request of the Applicant, he prepared the 14 written receipts which were marked Exhibit 2. He did not pay Bien Thi Nguyen himself. He provided some money to his sister and she paid Bien Thi Nguyen. He prepared the written receipts at the end of each month.

It appeared to him that his sister's condition was much worse after the operations than it had been immediately following the accident. He had been told by his family that his sister was tired and unable to care for her daughter following the accident. However, it seemed to him that his sister went crazy while in hospital. She didn't eat, drink or sleep. She was isolated due to her complete lack of English. His family requested her early release from hospital. The report of Dr. Izukawa dated December 12, 1991, confirms that the Applicant was experiencing increasing depression and urgently requested discharge to her home. (Found under Tab 1 at page 24 of Exhibit 1). In a report dated January 20, 1992, Dr. Izukawa reports to Dr. Clement that the Applicant had developed "nocturnal paranoia" which contributed to the decision to release her from hospital. (Found under Tab 5 at page 45 of Exhibit 1).

The Applicant's brother testified that after each operation Anh Le appeared feverish and delirious; she could not be left alone. It seemed to him that she remained that way for about two months following each operation. She could not sit up, she could not get up, she needed help with everything. Throughout his testimony, he expressed tremendous sorrow and concern for his sister. He felt particularly badly that he had been driving the car.

Other family members:

The evidence of Hong Ngoc Le and other members of the Applicant's family, concerning where the Applicant resided immediately after the accident, is somewhat confused.

I attribute much of this confusion to the difficulties the witnesses were experiencing in giving their evidence through an interpreter. I am satisfied that a room in a location not far from her parent's home had been rented for Anh Le and her daughter.

I am also satisfied that Bien Thi Nguyen was caring for the Applicant along with her daughter during the day in this rented room. It is clear that, at some point following the car accident, a decision was made to move Anh Le and her daughter back into the family home, because Anh Le was too weak and ill to be left on her own. In my view, nothing turns on the precise timing of the Applicant's various moves.

Anh Le's younger sister, Ut (Julie) Thi Ngoc Le, and her mother, Xua Le, gave evidence concerning the care they provided to Anh Le during the nights and weekends when Bien Thi Nguyen was not there. For a period of time following the two operations, they were very afraid for Anh Le. Anh Le's mind appeared to be wandering; she screamed at night; she was distracted, lost. She could not be left alone. At several points, the rest of the family could get no rest at night.

Medical Evidence:

In his report dated September 6, 1991, the Applicant's family physician, Dr. Talangbayan, sets out his initial diagnosis of the Applicant's condition as:

...strain to her cervical and lumbo sacral spines, bilateral shoulder strain, contusion to her chest wall, post traumatic headaches and dizziness as a direct result of her accident on April 6, 1991. (Found under Tab 2 at page 30 of Exhibit 1)

Included in the clinical notes and records of Dr. Talangbayan is a radiological report from Dr. M. Chui of King West X-Ray & Ultrasound, dated April 9, 1991. This report states:

The lumbar spine shows an old compression fracture of the L1 vertebral body with 60-70 % loss of its vertical height. A mild kyphotic curve is noted at this level with minimal degree of retropulsion of the L1 vertebral body. The interpenduncular distance is also increased suggestive of lateral displacement. The fracture, however, appears to be healed and chronic. (Found under Tab 2 at page 30 of Exhibit 1).

In response to the radiological report, Dr. Talangbayan revised his initial diagnosis, concluding in his report dated September 6, 1991:

It is obvious that her old injury that had healed had been complicated by injuries resulting from her accident of April 6, 1991. (Found under Tab 2 at page 34 of Exhibit 1).

When the Applicant attended at the Mississauga Hospital during the night of May 4, 1991, she was diagnosed as suffering from a severe compression fracture of the L1 lumbar spine with retropulsion of fragments into the spinal canal. There was also clinical evidence of sphincter disturbance with conus compression secondary to the L1 fracture. She presented with mechanical instability and evidence of spinal cord irritation. (Report of Dr. Nigel Clements, dated December 18, 1991, found under Tab 3 at page 35 of Exhibit 1).

The Department of Radiology of the Mississauga Hospital prepared several Radiology Reports at the time of the Applicant's initial admission to hospital.

The report Re: Lumbar Spine 4-5 views dated May 4, 1991 states:

There is a burst fracture of L1 with widening of the pedicles and probable posterior displacement of the bony fragment. C.T. scan is recommended to rule out a retropulsed component. (Found under Tab 1 at page 20 of Exhibit 1)

The report Re: CT Thoracic spine without Cont. states:

A series of thin 4mm slices have been obtained through the burst fracture of L1. The fracture appears to be old and demonstrates some evidence of healing. There is compression of the AP diameter of the spinal canal, and at its narrowest point it is about 5mm in AP diameter. Definite fracture lines through either the vertebral body or the posterior elements cannot be identified, and this may be because of the age of the fracture. (Found under Tab 1 at page 18 of Exhibit 1).

During oral testimony, Dr. Talangbayan reviewed his clinical notes and records which are contained under Tab 8 of Exhibit 1. He noted a worsening of the Applicant's neurological condition following the first operation in May 1991. Her complaints of constipation, bowel and bladder dysfunction increased. He noted severe muscle spasms along her spine. In the visit of August 19, 1991, the Applicant complained of numbness, and weakness, particularly in her left leg. In the visits of September 6, and 21, 1991, Dr. Talangbayan noted that the weakness in her left leg was increasing.

During oral testimony, Dr. Talangbayan opined that the Applicant's condition reflected nerve root compression which affected her balance and ability to walk. This results in foot dragging and loss of balance, making it hazardous to negotiate stairs. Reviewing his clinical note of November 22, 1991, Dr. Talangbayan opined that it would be difficult for the Applicant to get up from bed, bend, or walk.

In the Record of Hospitalization of the Mississauga Hospital, dated December 12, 1991, Dr. D. Izukawa summarizes as follows:

This 31 year old woman came to Canada recently from Vietnam. She speaks no English. She was involved in a motor vehicle accident in April 1991. She suffered a hyperflexion injury because she was a rear seat passenger wearing only a lap belt. Over the next month she developed severe high lumbar mechanical back pain and came to neurosurgical attention. At that time there was evidence of sphincter dysfunction as well both by history and examination. (Found under Tab 5 at page 63 of Exhibit 1)

In a Report dated November 15, 1991, Dr. Izukawa states:

As you know, she is a 31 year old woman who recently came to Canada from Vietnam. She speaks no English. She was involved in a motor vehicle accident in April of this year with a lumbar hyperflexion injury. Unfortunately, she did not present for medical attention until one month after the accident. At that time, she was having low back pain and left sciatica with clinical evidence of sphincter disturbance...

She was taken to the Operating Room and underwent pedicle screw fixation from T12 to L2 with iliac crest bone graft. We were hoping to achieve some degree of distraction and relief of conus compression with the stabilization. A good fusion was achieved but she continued to have neurological difficulties. If anything these are worsening...

In summary, this unfortunate young woman continues to exhibit evidence of conus compression. Fortunately there has been no motor deficit. However, she does have ongoing disabling pain and sensory symptomatology. Although I am not sure how much sphincter function can be recovered at this late date, I do think we should make an attempt to decompress her anteriorly. Of course this is a major surgical undertaking through a retroperitoneal approach and would require post-decompression strut graft fusion. (Found under Tab 5 at pages 43 and 44 of Exhibit 1).

Submissions:

The case presented by counsel concerns the interpretation of section 6(1)(f) in relation to section 13 of the No-fault Benefits Schedule, and the application of these provisions to the facts in this case.

Applicant's Counsel:

Counsel for the Applicant submitted that the legislation should be interpreted in its ordinary grammatical sense. Counsel argued that a straightforward reading of the language of section 6(1)(f) inevitably leads to the conclusion that the Insurer is required to reimburse the Applicant for all reasonable expenses arising from housekeeping and babysitting services provided by Bien Thi Nguyen.

Counsel for the Applicant submitted that the receipt of No Income and Primary Caregiver Benefits under section 13 does not preclude the Applicant from also receiving payment for housekeeping and babysitting expenses under the Supplementary Medical and Rehabilitation expense provisions of section 6(1)(f).

Counsel for the Applicant submitted that the legislators specifically separated Part II Supplementary, Medical, Rehabilitation and Care Benefits (sections 6 and 7) from Part IV Weekly Income and No Income Benefits (sections 12 and 13), because payments are triggered by different factors, for very different objectives. Counsel submitted that there is no ambiguity in the breakdown and separation of these sections in the legislation.

Counsel suggested that, if the Legislature had intended section 13 No Income and Primary Caregiver Benefits to represent the exclusive source of recovery for housekeeping and babysitting expenses, the legislation would specifically set this out.

Counsel for the Applicant urged me to apply the rule of contra proferentem to interpret any ambiguity found in section 13, in favour of the Applicant and against the Insurer.

Counsel for the Insurer:

Counsel for the Insurer argued that expenses for housekeeping and babysitting services are not recoverable under section 6 of the Schedule. Counsel for the Insurer submitted that section 6 cannot be construed in isolation. The meaning of section 6(1)(f) must be determined in the context of the entire No-Fault Benefits Schedule.

Counsel argued that housekeeping expenses are already accounted for in section 13(1) No Income Weekly Benefits, while babysitting expenses are accounted for in section 13(4) Primary Caregiver Benefits. Counsel suggested that section 13 is the exclusive source of recovery for these expenses.

Counsel submitted that, whereas section 12 Weekly Income Benefits compensate an individual normally connected to the workforce for the inability to earn, section 13 No Income Weekly Benefits compensate an individual normally capable of performing house-work and childcare for the inability to do these tasks. Just as section 12 Benefits do not purport to compensate individuals accurately and entirely for all economic loss suffered, section 13 benefits do not purport to compensate individuals for the full cost of replacing their housekeeping and childcare activities.

Counsel submitted that neither section 12 nor 13 was intended as a payment of general damages to compensate for injury, pain and suffering. Consequently, there can be no other purpose for section 13 Benefits, other than providing funds to a non-wage earning housekeeper and primary caregiver, to defray the cost of replacement housekeeping and babysitting services.

Counsel for the Insurer concluded that the payment of weekly benefits under section 13 discharges the Insurer from any further liability for housekeeping or babysitting expenses under any other provision of the Schedule, including section 6.

Counsel for the Insurer argued further, that housekeeping and babysitting expenses do not fall within the purview of section 6 Supplementary Medical and Rehabilitation Benefits. Section 6 contemplates reimbursement of expenses that are directly connected to the insured person and necessary for his or her treatment or rehabilitation. Counsel suggested that expenses referred to in subparagraphs (a) through (d) of section 6(1) are obviously connected to the treatment or rehabilitation of an insured. Home renovations are less obviously connected and hence are specifically set out in subparagraph (e). Counsel suggested that housekeeping and babysitting services are not necessary for treatment or rehabilitation.

Counsel submitted that babysitting services do not focus on the needs of the insured person who sustained injury, but substitute for the childcare activities formerly carried out by the insured. Counsel argued that babysitting services are not required because of the accident, but rather because the Applicant is the mother of a young child.

As a final position, counsel for the Insurer submitted that, even if expenses for housekeeping and babysitting services are recoverable under section 6, the evidence adduced in this case falls short of establishing the Applicant's eligibility for benefits under section 6(1) (f), for the following reasons:

the Applicant's disability did not arise from the motor vehicle accident, but from a pre-existing back injury;
the expenses claimed are not reasonable because the Applicant's condition was not such that she required the nature and extent of services performed by Bien Thi Nguyen;
the expenses were not paid by the Applicant.

Findings:

Throughout the proceedings before me, both counsel characterized the activities of Bien Thi Nguyen as housekeeping and babysitting. I do not agree with either counsel's characterization of Bien Thi Nguyen's services.

The services performed by Bien Thi Nguyen cannot be described as housekeeping. The evidence of all the family members was that for long periods of time the Applicant was confined to her sickbed and then to her room. Bien Thi Nguyen rarely left the sick room. The services she performed consisted of providing personal care to the Applicant and attending to Anh Le's personal needs arising from her physical and emotional condition. The focus of Bien Thi Nguyen's activities was not to manage and maintain a clean and tidy household, but rather to provide an environment conducive to the Applicant's recovery.

The principal role of Bien Thi Nguyen was not as babysitter. It is clear that Bien Thi Nguyen viewed her role as providing care to the Applicant. She testified that she was asked to come because Anh Le had been hurt in an accident and was sick. The focus of Bien Thi Nguyen's testimony was upon the physical condition of the Applicant and the care she provided to her. She had difficulty remembering either the name or age of the child, when asked.

I find that services Bien Thi Nguyen provided to the child were incidental to the services she performed for the Applicant. The exception to this finding concerns three periods of hospitalization from May 4 to May 13, 1991, May 20 to May 31, 1991, and December 9, to December 21, 1991; a total of 4½ weeks. During these periods, the evidence of Anh Le was that Bien Thi Nguyen cared for the child, while her family provided support to her in hospital. I note that Bien Thi Nguyen did not refer to these periods in her testimony, reinforcing my finding that her focus was upon the Applicant and not upon the child.

As the evidence evolved at the hearing, I suggested to counsel that they consider the applicability of section 7 (1)(b) Care Benefits, to the matter before me. Counsel for the Insurer objected on the basis that the issue of Care Benefits had not previously been raised. The original Application for Benefits filed by the Applicant was for payment of housekeeping and babysitting expenses under the Supplementary Medical and Rehabilitation Benefits section 6(1) (f) of the Schedule. Mediation of the claim, the Application for Arbitration, the Response of the Insurer and the Pre-hearing Discussion all proceeded on the basis of section 6(1) (f).

Counsel for the Insurer noted that, due to the Vietnamese language barrier, the arbitration hearing was the first time the Insurer received details of the Applicant's claim. The Insurer did not consent to the inclusion of the issue of section 7(1)(b) Care Benefits in the hearing. Counsel for the Applicant did not pursue the matter further at that time. In his final submissions, however, Counsel for the Applicant suggested if services performed by Bien Thi Nguyen fall outside the purview of section 6, Supplementary Medical and Rehabilitation Benefits, I should simply find that such services fall under section 7 Care Benefits and award expenses on that basis; without further consideration.

I do not agree with counsel for the Applicant's submission that section 6, Supplementary Medical and Rehabilitation Benefits, and section 7, Care Benefits, are interchangeable in this manner. To do so renders one of these sections redundant. Sections 6 and 7 of the Schedule read as follows:

Section 6

1The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(b) prostheses, dentures, prescription eyewear, hearing aids and other medical or dental devices;

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;

2The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident an allowance that is reasonable having regard to all of the circumstances for expenses actually incurred by a spouse, child, grandchild, parent, grandparent, brother or sister of the insured person in visiting the insured person during his or her treatment or recovery.

3For the purposes of this section, the benefit period is the longer of the two following periods calculated from the day of the accident and ending on the anniversary of the accident:

Ten years.
Twenty years less the age of the insured person on the day of the accident.

4Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

5A person qualified to practise as a chiropractor may sign a statement required under subsection (4) in respect of chiropractic services under clause(1)(a).

6A person qualified to practise dentistry may sign a statement required under subsection (4) in respect of dental services and dentures under clauses(1)(a) and (b).

7In case of a dispute concerning an expense described in clause(1)(a),(b) or (d), the insurer will pay the expense pending resolution of the dispute.

8The maximum amount payable under this section if $500,000 with respect to each insured person.

Section 7

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person.

(a) the reasonable cost of a professional care-giver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

(2) The maximum amount payable per month under this section is $3,000 a month with respect to each insured person.

(3) The maximum amount payable under this section is $500,000 with respect to each insured person.

It is true that both sections 6 and 7 fall under Part II of the Schedule and deal with expenses that may be recovered "with respect to each insured person who sustains physical, psychological, or mental injury as a result of the accident". However, section 7 Care Benefits specifically carves out of section 6 Supplementary Medical and Rehabilitation Benefits, those expenses related to the personal care of the insured person. Section 7 does not contain reference to medical verification found under section 6(4). Section 7 places a monetary cap on payment of Care Benefits to the maximum of $3,000.00 per month with respect to each insured person, which does not exist for section 6 benefits. To assume, as counsel for the Applicant has, that sections 6 and 7 are overlapping or interchangeable, is to rob each section of the particular requirements and limitations imposed by the legislation, thereby rendering them meaningless.

The arbitration appeal case Richard Mark Plows and Jevco Insurance Company, O.I.C. File Nos. P-000175, P-000588, dated May 22, 1992 (page 10), refers to the case of Williams v. Box (1910), 1910 CanLII 42 (SCC), 44 S.C.R. 1. In the Supreme Court of Canada case, Mr. Justice Anglin writes (at 24):

To treat any part of a statute as ineffectual, or as mere surplusage, is never justifiable if any other construction be possible. The rejection or excision of a word or phrase is permissible only where it is impossible otherwise to reconcile or give effect to the provision of the Act.

I therefore reject Counsel for the Applicant's submission that I simply award expenses under section 7 Care Benefits without further consideration.

In the interests of fairness to both parties, I will remain seized of the issue of the application of section 7(1)(b) Care Benefits, for the remaining 49 weeks of service provided by Bien Thi Nguyen. Parties may adduce further evidence if necessary, and make submissions concerning the application of section 7(1)(b), immediately following mediation.

I have concluded that the 49 remaining weeks of service provided by Bien Thi Nguyen relate to caring for the Applicant after the accident. Accordingly, I do not need to consider the application of section 6 Supplementary Medical and Rehabilitation Benefits to these services. However, I must consider the operation of section 6 in relation to the 4½ week period when Bien Thi Nguyen provided babysitting services to Anh Le's daughter, while Anh Le was in hospital.

I agree with counsel for the Insurer's argument that section 6 must be considered within the context of the other provisions of the Schedule. However, in my view, the Schedule must also be considered in the overall context of remedial legislation. Support for this view is found in the arbitration case Branden K. Hui and Security National Insurance Company, O.I.C. File No. A-000055. Arbitrator Naylor states at page 14:

The No-fault Benefits Schedule is remedial legislation, and, in accordance with the usual principles of statutory construction, must be accorded a broad and liberal interpretation, that best achieves the object and intent of the legislation.

If I accept counsel for the Insurer's proposition that the Primary Caregiver Benefits of section 13(4) represent the exclusive source of recovery for babysitting expenses under the Schedule; I must also conclude that the drafters of the No-Fault Benefits Schedule intended no reimbursement of babysitting expenses to injured persons claiming under other sections of the Schedule. Therefore, a single working parent, receiving Weekly Income Benefits under section 12, could not claim expenses associated with after-school and over-night childcare for her children, while she recuperated in hospital. Likewise, an insured who did not sustain disabling injuries (to qualify for benefits under section 12 or 13), but who nevertheless required assistance with the heavier aspects of housework, or required babysitting care while attending physiotherapy sessions, could not claim such expenses. I cannot accept that drafters of the Schedule intended to exclude such claims.

Mr. Justice Spence, in Madill v. Chu (1977) 2 S.C.R., at 400, concluded that where a contract of insurance, the policy, was required to incorporate the language of the statute, taken from the Insurance Act, the contra proferentem rule is inappropriate as it relates to the statutory language. However, Mr. Justice Spence stated that "apart altogether from the contra proferentem rule, it is sound construction of a contract to construe the provisions thereof broadly and the exclusions thereof narrowly."

Counsel for the Insurer then argued that section 6(1)(f) is not broad enough to include a claim for babysitting expenses. Section 6(1) (f) has been examined in several previous arbitration cases. The decision of Richard Mark Plows and Jevco Insurance Company, O.I.C. File Nos. A-000175 and A-000588, dated January 16, 1992, and confirmed on appeal in Jevco and Plows (supra), dated May 22, 1992, sets out three criteria governing an insurer's liability for expenses under this provision. These criteria are as follows:

(i) The expense must be a reasonable expense resulting from the accident;

(ii) The expense must be required because of the accident; and

(iii) A medical practitioner must provide a signed statement that the expense is necessary for the Insured's treatment or rehabilitation if the Insurer so requires.

With reference to the third criterion set out above, the Arbitrator held that, by virtue of section 6(4) of the Schedule, expenses under section 6(1) (f) "must be such that a medical practitioner might validly opine as to their necessity".

These criteria and the interpretation above were relied upon in the case of Amnon Ajzensztadt et al. and CAA Insurance Company (Ontario) et al., O.I.C. File Nos. A-000185 et al., dated February 6, 1992, confirmed on appeal to the Director in Amnon Ajzensztadt et al. and CAA Insurance Company (Ontario) et al., O.I.C. File No. P-000185, et al., dated July 13, 1992.

The second criterion appears to have been refined somewhat, in the case of Carlos Ferreyra and Blanca Ferreyra and Royal Insurance Company of Canada, O.I.C. File Nos. A-000301, A-000325 and 000384, dated July 9, 1992, where Arbitrator Palmer noted at page 11,

The principal focus of the No-Fault Benefits Schedule is on the needs of the insured person who sustained injury, not generally on replacement of the services formerly provided by the insured person who sustained injury.

Arbitrator Palmer concluded that the cost of replacement transportation for the Applicant's children to drive them to various activities was not recoverable under section 6(1)(f) or section 7 of the Schedule.

The third criterion was expanded by the decision of Arbitrator Naylor in Trinidad Chamale and Wellington Insurance Company, O.I.C. File No. A-000849, dated September 25, 1992 (currently under appeal to the Director). Arbitrator Naylor stated at page 19 of that case: "The question of the necessity of the goods and services for treatment or rehabilitation must therefore fall broadly within the realm of medical expertise." She then went on to conclude that expenses relating to housekeeping and childcare activities were recoverable under section 6(1)(f).

Counsel for the Insurer argued that the Applicant's disability, and hence the need for hospitalization and babysitting services, did not result from the motor vehicle accident. Counsel proposed that the Applicant's problems resulted from a pre-existing compression fracture of the L1 vertebral body, referred to in the x-ray report dated April 9, 1991 (found under Tab 2 at page 30 of Exhibit 1). Counsel for the Insurer also speculated that, since the Applicant's condition was relatively stable immediately following the accident, her injuries may have been exacerbated by an unknown event in early May 1991, which prompted her attendance at the Mississauga Hospital and the surgical intervention that followed.

I do not accept either of these theories. Neither the Applicant nor her family was aware of a pre-existing back injury. If an old compression fracture existed, it clearly did not affect the Applicant prior to the accident. All the medical opinion presented confirms and accepts the progression of the Applicant's symptoms and relates them to the circumstances of the motor vehicle accident. In oral testimony, Dr. Talangbayan concluded that the Applicant's symptoms and the evolution of her complaints were consistent with either a first-time fracture of her lumbar spine or the aggravation of a previous back injury during the April 6, 1991 accident. I accept Dr. Talangbayan's opinion on this point and find that the Applicant's injuries and subsequent surgical intervention resulted from the accident.

Counsel for the Insurer also argued that the services of a babysitter are not necessary for the Applicant's medical treatment or rehabilitation.

A review of the records from the Mississauga Hospital contained in Exhibit 1 confirm that both Dr. Nigel Clements, an orthopaedic surgeon, and Dr. Dennis Izukawa, a neurosurgeon, recommended surgery to alleviate the symptoms of pain, mechanical instability and bladder and sphincter dysfunction suffered by the Applicant as a result of her back injury. According to medical opinion, treatment and rehabilitation of the Applicant necessitated surgery. Surgery required hospitalization. Does hospitalization necessitate babysitting services?

Counsel for the Insurer submitted that babysitting services are not required because of the accident or the Applicant's hospitalization, but rather because the Applicant is the mother of a young child. The services were not for the direct benefit of the Applicant herself, but were the replacement of childcare activities normally provided by the Applicant to her daughter.

I cannot accept either of these submissions. The Insurer is obligated to meet the Applicant's rehabilitation and therapeutic requirements in the circumstances in which the Applicant finds herself, at the time of the accident. The Applicant required hospitalization. The Applicant is the mother of a young child; as such, she has both a moral and legal duty to provide responsible care and supervision for that child during her absence. Such services constitute more than a service to the child. They are, in fact, services required by the Applicant as the result of her disability and hospitalization. There is a real and direct connection between the Applicant's therapeutic and rehabilitative requirements and the services provided.

It is specious to deny benefits on the basis that the Applicant would not have required such services had she not been the mother of a young child.

Having regard to the criteria previously set out, I find that the babysitting services provided by Bien Thi Nguyen, for the 4½ week period the Applicant was in hospital, fall within the purview of section 6(1)f) of the Schedule.

I now turn to Counsel for the Insurer's most intriguing argument. Counsel submits that, in the event babysitting expenses are recoverable under the Supplementary Medical and Rehabilitation expense provisions of section 6, an insured person receiving Primary Caregiver Benefits under section 13(4) of the Schedule is precluded from claiming them. Counsel for the Insurer submits that babysitting expenses are already accounted for under section 13(4). Section 13(4) provides:

(4) The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), or who but for section 17 would be entitled to the weekly benefit, a benefit of $50 per week if Optional Benefit 3 has not been purchased, or $100 per week if it has been purchased, for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.

I am prepared to accept counsel for the Insurer's characterization of section 13(4) Primary Caregiver Benefits as legislative recognition of an insured's loss of the caregiver function. However, I am unable to assume counsel's further proposition that the Primary Caregiver Benefit is earmarked to offset specific expenses related to this loss. Section 13(4) does not specifically refer to expenses. Section 13(4) weekly benefits are paid to an insured, whether or not babysitting expenses are actually incurred.

If I accept Counsel for the Insurer's interpretation of the relationship between section 6 and section 13 benefits, an insured person, who is substantially disabled under section 13, is precluded from recouping the actual cost of babysitting expenses, while an individual who is not substantially disabled, or is claiming under section 12, is not similarly denied.

If the drafters of the No-Fault Benefits Schedule intended to deny access to section 6 benefits in specific circumstances to those claiming through section 13, they would have explicitly stated it. Support for this conclusion may be found in E.A. Driedger's text, Construction of Statutes, (Butterworths, 1983) at page 33:

When two constructions are open, the courts must make a choice, and in making that choice such factors as absurdity, injustice, anomaly, hardship, and inconvenience are relevant. Generally speaking, as was indicated in R. v. Judge of the City of London Court, the courts will adopt a construction that will avoid such consequences. If the language is equivocal and there are two reasonable meanings of that language, the interpretation that will avoid a penalty is to be adopted.

I therefore find that the receipt of section 13(4) Benefits does not preclude the Applicant from receiving section 6(1)(f) Benefits for babysitting expenses.

To determine the amount of babysitting expenses that the Applicant is entitled to receive, I have accepted the clear and unequivocal evidence of Bien Thi Nguyen. She stated she was paid $400.00 in cash, every two weeks. The expense for 4½ weeks of babysitting while the Applicant was in hospital totals $900.00. No issue was raised concerning the appropriateness of the sum of $200.00 per week for full-time babysitting services. In my view, it is not an unreasonable figure.

Counsel for the Insurer submitted that the babysitting expenses may not have been paid by the Applicant from her own money. Hong Ngoc Le testified that he had given money to his sister to tide her over in her time of need. The Applicant testified that she received money from several of her family members including her brother. She viewed the money as a loan which she intended to repay, when she was able. I do not accept the Insurer's argument that it is only liable for expenses that have already been incurred by the Applicant out of her own funds. As set out at page 48 of the case Richard Mark Plows and Jevco Insurance Company (supra), there is no requirement in section 6(1) that expenses need actually have been incurred by the Applicant, much less paid from the Applicant's own funds. In any event, the Applicant's evidence is that she feels bound to repay amounts loaned or given to her.

In disposing of this matter, I do not need to deal with Counsel for the Applicant's argument concerning the application of the contra proferentemrule. The inapplicability of this rule where terms of a contract are imposed by law was thoroughly canvassed in the arbitration decision of Ajzensztadt et al. and CAA Insurance et al. (supra), upheld on appeal.

Order:

The Applicant is entitled to reimbursement of expenses in the amount of $900.00 for babysitting services rendered by Bien Thi Nguyen, the 4½ week period while the Applicant was in hospital, under section 6(1) (f) of the No-fault Benefits Schedule.
The 49 remaining weeks of services provided to the Applicant by Bien Thi Nguyen relate to the personal care of the Applicant following the motor vehicle accident.
The Applicant is entitled to receive interest on the sum of $900.00 pursuant to the provisions of section 24 of the No-fault Benefits Schedule.
The Applicant is entitled to her expenses incurred in respect of the arbitration, under section 282 (11) of the Insurance Act.

November 25, 1992

Janice Mackintosh

Arbitrator

Date

Anh Le v. Wellington Insurance Company, 1992 ONICDRG 45

Case Summary