Neutral Citation: 1994 ONICDRG 102

File No. A-006025

ONTARIO INSURANCE COMMISSION

BETWEEN:

HUGH JOHN MacMASTER

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

INTERIM DECISION

The Applicant, Hugh John MacMaster, was injured in a single-vehicle accident on July 12, 1991. He was not insured at the time of the accident. He applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund ("MVACF"), payable under Ontario Regulation 672¹. Dominion of Canada General Insurance Company ("Dominion General"), which Is called "the Insurer" In this decision, acts as administrator on behalf of the MVACF in this matter. Mr. MacMaster receives weekly income benefits, care benefits and medical and rehabilitation benefits. He claims additional care and rehabilitation benefits. The Insurer disputes his entitlement to these benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to care benefits in excess of $3,000 per month, under section 6 or section 7 of the Schedule?

2. What rehabilitation benefits is the Applicant entitled to, in respect of accommodation, under section 6?

3. Is the Applicant entitled to a special award under subsection 282(10) of the Act?

4. The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the arbitration proceeding.

Result:

1. The Applicant is not entitled to care benefits in excess of $3,000 per month.

2. The Applicant is entitled to rehabilitation benefits in respect of accommodation, as set out in the decision at pp. 18-20.

I remain seized of the issue of accommodation benefits. If, after two months following the release of this decision, the parties are unable to agree on the appropriate accommodation for the Applicant in accordance with the requirements set out in this decision, either party may bring the matter before me for determination.

Under section 24 of the Schedule, interest is payable on rehabilitation benefits owing. I am unable to calculate the amount because the Applicant's entitlement has not been quantified. I remain seized of this issue. If the parties are unable to agree on the amount owing, either party may bring the matter before me for determination.

3. The Applicant is entitled to a special award of $3,000, inclusive of interest under subsection 282(10) of the Act. I remain seized of the issue of the Applicant's entitlement to a special award in respect of accommodation benefits.

4. The Applicant is entitled to his expenses incurred in the arbitration proceeding. I remain seized of the issue of the amount of expenses payable. If the parties are unable to agree, either party may bring this issue before me for determination.

Hearing:

The hearing was held in North York, Ontario, on May 24, 25, and 26, 1994, before me, Nancy Makepeace, arbitrator.

Present at the hearing:

Applicant:

Hugh John MacMaster

Applicant's

Craig Brown

Representative:

Barrister and Solicitor

Joseph Pileggi

Legal Assistant

Insurer's

Barry D. Brown

Representative:

Barrister and Solicitor

Witnesses:

Hugh John MacMaster, the Applicant

Michael MacMaster, the Applicant's brother

Toyoko Sameshima, of Community Living & Rehabilitation Consultants

Dr. W. M. Franks, physiatrist

Joseph Flam, Legal Assistant

Jeffrey Baum, Adapt-Able Designs

Anne MacMaster, the Applicant's mother

Exhibits and other documents before the arbitrator are listed in an appendix to this decision.

The proceedings were recorded by Ron Fisk (May 24), Caroline Sebastian (May 25), and Marcia Tator (May 26), all of Anshan Reporting Services Inc.

Background and Issues:

At the time of the motor vehicle accident, Hugh John MacMaster was nineteen years old and had finished high school, having completed Grade 11. He is the youngest of four children. His family currently lives in Nova Scotia. A couple of years before the accident, Hugh John moved to Toronto to live with his older brother, Michael, who had moved to Toronto in 1985. Michael MacMaster operates a wood refinishing business. At the time of the accident, Hugh John had worked for a lawn chemical company for about one year. Hugh John and Michael shared a two-bedroom apartment in Don Mills.

On Friday, July 12, 1991, Hugh John's motor vehicle went out of control and fell over a 20-foot embankment. On Saturday morning, when Hugh John still had not come home, Michael started searching for him. Michael MacMaster found his brother on Sunday, July 14. The car had flipped over onto its roof. Hugh John was inside the car, suspended from his seat-belt, comatose.

Hugh John was taken to Sunnybrook Hospital, where he was found to have a closed head injury, involving diffuse brain swelling. He also had seat-belt injuries. Mr. MacMaster remained comatose or semi-comatose for several months. He stayed in Sunnybrook's Intensive Care Unit until November 22, 1991, when he was transferred to the Riverdale Hospital. Though his condition had improved during his stay at Sunnybrook, on admission to Riverdale he was found to have "significant deficits ... in cognition, perception, occulmotor [oculomotor] skills, physical skills and functional independence" (Intake report, December 16, 1991, Exhibit 1, Tab B). He was unable to stand, walk, or use a wheelchair, could not transfer independently, and required assistance in his self-care. His speech was inarticulate, laboured, and reduced in volume. He was noted to have little insight into his condition, and his judgement and problem-solving abilities were affected by his injury. He also had memory and attention difficulties.

The MacMaster family was not happy with the care provided at Riverdale Hospital, and arranged for Hugh John to be transferred to West Park Rehabilitation Hospital on January 21, 1992. On discharge from Riverdale, it was reported that Mr. MacMaster had been "progressing slowly" while at the hospital.

Mr. MacMaster stayed at West Park until October 2, 1992, when he was discharged. At discharge, Mr. MacMaster had "major improvements in all areas", especially memory. However, he still had diminished use of both arms, diminished functional mobility, and diminished concentration, memory, problem solving ability, and insight.

After being discharged from West Park Hospital, Mr. MacMaster returned home to the apartment he shared with his brother. Anne MacMaster, his mother, had come to Toronto within days of the accident to help care for Hugh John, and she continues to share the apartment with Hugh John and Michael. While Hugh John was in hospital, his mother and brother closely supervised his care. Since his discharge, they have provided almost all his daily care.

After his discharge from hospital, Mr. MacMaster attended the West Park Hospital out-patient program until February 11, 1993.

The Applicant's Disabilities:

Mr. MacMaster suffered serious and permanent organic brain injury resulting directly from the accident. Evidence about his injuries and disabilities came through the oral testimony of the Applicant, his brother, his mother, and Dr. W.M. Franks, a physiatrist who specializes in neurological rehabilitation. Reports from Dr. Franks and Dr. G.B. Proulx (neuropsychologist), as well as the records of Sunnybrook, Riverdale and West Park Hospitals were also filed. Rehabilitation reports prepared by Ms. Pat Sacks, a speech pathologist and rehabilitation consultant with Nancy Haston & Associates; Ms. Julie Vaughan, speech pathologist; and Ms. Anna Greenblatt, occupational therapist, both of Inter-Action, were also filed. There was little dispute about the Applicant's functional disabilities.

Mr. MacMaster remains functionally wheelchair-bound, though his control of arm and leg movement has improved since the accident. He has better function on his right side than his left. He uses a manual wheelchair at home. For longer distances outside, he must use an electric wheelchair or scooter, or have someone push him in the manual wheelchair. He is able to walk for short distances with a walker or quad cane and one person's assistance, but he finds this very tiring. He has difficulty controlling his wheelchairs and cannot negotiate floor obstacles. He cannot stand independently, and requires assistance with transfers. He cannot go up and down stairs.

He does not leave the apartment without an attendant, although he sometimes takes WheelTrans on his own to therapy sessions. He cannot drive a motor vehicle; his brother drives him in the wheelchair van. He cannot be left without supervision to ensure his safety in case of emergency.

Before the accident, Mr. MacMaster was left-handed. As a result of the accident, he has little functional use of his left hand and arm. He has better function in his right hand and arm.

As a result of his frontal lobe injuries, Mr. MacMaster has persistent deficits in visuospatial abilities, mental tracking, attention, new learning, memory, problem-solving and general intellectual functioning. He has limited understanding of his cognitive problems, and his judgement is impaired.

Mr. MacMaster's speech is slow and low in volume, and his use of language is limited and concrete. Although his testimony was easily comprehensible, his speech difficulties were evident as he gave his oral testimony at the hearing.

Because of his disabilities, Mr. MacMaster is partially dependent in the activities of daily living. He is unable to prepare his own food, and must be supervised in the kitchen because of his motor control and cognitive problems. He cannot look after himself independently because he cannot complete the required transfers without assistance and has limited control of his hands and arms. He requires assistance with shaving and dressing. He is now able to wash himself, with the use of a bath bench and shower chair. His family helps him with medication, shopping, banking and other personal affairs.

On release from the West Park Hospital out-patient program, Mr. MacMaster was assessed as having reached a plateau in his functional rehabilitation. Mr. MacMaster has subsequently received physiotherapy treatment and has participated in a horseback riding program at Canadian Association for Riding for the Disabled, gym and swimming programs at Variety Village, and a functional activities program at Inter-Action. His caregivers report continuing improvement, and further improvement is expected. However, they agree that he will never be competitively employable, and will require supervision and support throughout his life.

Care benefits:

Since his discharge from hospital in October 1992, the Applicant's mother and brother have provided all his daily care. The Applicant has received $3,000 per month in care benefits under section 7 of the Schedule. This is the maximum monthly benefit allowed under section 7. Mr. MacMaster contends that the services provided by his mother and brother are worth considerably more. He also wants some provision to be made for purchased care, to give his mother and brother some relief. He claims additional care benefits under paragraph 6(1)(f).

I accept that, as a result of the injuries sustained in the accident, Mr. MacMaster requires assistance with activities of daily living throughout the day, as well as constant supervision.

Section 7 provides as follows:

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.

Paragraph 6(1)(f) provides as follows:

6.---The 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,

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

The terms "care" and "caregiver" are not defined in the Schedule or the Act. Given the breadth of paragraph 6(1)(f), there may be some overlap in the expenses allowable under sections 6 and 7. Although both sections are subject to a lifetime maximum of $500,000, section 7 also imposes a $3,000 monthly limit. Even an unskilled professional caregiver, paid at minimum wage, will cost more than $3,000 per month for 24-hour care.

In Joseph N. Bush and Pilot Insurance Company, April 25, 1994, OIC File No. A-004687, Arbitrator K. Julaine Palmer considered the applicant's submission that the wording of section 6(1)(f) is broad enough to embrace all care benefits, or to "~top up' care benefits beyond the limits set out in section 7. She agreed with Arbitrator Janice Mackintosh, who said, in Anh Le and Wellington Insurance Company, November 25, 1992, OIC File No. A-000920, that to treat sections 6 and 7 as interchangeable would be to make one of the sections redundant. Arbitrator Mackintosh noted that sections 6 and 7 are distinct in that section 7 includes a monthly limit, but does not provide for medical certification as subsection 6(4) does. In Joseph N. Bush, Arbitrator Palmer drew the following conclusion:

If the "nursing" services had been provided to Mr. Bush under section 6(1)(a) of the Schedule, presumably by a qualified registered or practical nurse, the necessity for those professional services could have been subject to the scrutiny and opinion of a qualified medical practitioner or psychological advisor under section 6(4) of the Schedule. Here, however, Mrs. Bush has provided non-professional nursing services and other care to her husband and she will be compensated, in my view, under section 7, but only to a limit of $3,000.00 per month.

In my view, the nature of the distinction between sections 6 and 7 is not clear. I find it significant that subsection 6(3) sets out a maximum benefit period, and subsection 6(2) provides for the expenses of a family member "in visiting the insured person during his or her treatment or recovery".

Considering the language of both sections in context, I think the legislators intended section 6 to deal, broadly, with the insured person's expenses during the initial period of acute treatment and recovery, and section 7 to deal with long-term attendant care.

I agree with the approach taken by Arbitrator David Draper in Santina Malfitano and CAA Insurance Company (Ontario), August 4, 1994, OIC File No. A-007490. The issue in that case was whether the services provided by the applicant's husband were "nursing" services under paragraph 6(1)(a) or "care" services under section 7. Arbitrator Draper said:

... a number of factors help distinguish 'nursing services' from 'care', although none of them are determinative. These factors are:

• Where are the services provided?

• Do the services involve active treatment or rehabilitation?

• Who provides the services?

He held that the long-term services provided at home by the applicant's husband, a skilled but non-professional caregiver, were "care" services governed by the $3,000 monthly limit in section 7.

Mr. MacMaster's caregivers are non-professionals providing care at home. The services they provide - safety and supervision, mobility assistance, and assistance in directing his personal affairs - are integral to the Applicant's activities of daily living, and are not focused on active treatment. He will likely need constant attendance indefinitely. For all these reasons, I find that the services provided by Michael MacMaster and Anne MacMaster are "caregiver" services, for which benefits are provided under section 7 of the Schedule. Additional benefits are not available under section 6.

Housing benefits:

Mr. MacMaster contends that his present accommodation is inappropriate. He submits that he is entitled to rehabilitation expenses to subsidize a move to accessible three-bedroom accommodation. He says that suitable rental accommodation is not available in the Metropolitan Toronto area, and contends that the Insurer should fund the purchase and modification of a house.

The Insurer contends that section 6 does not provide for the purchase of a house, but only provides for home renovations. Further, the Insurer claims that accessible or adaptable three-bedroom rental accommodation is available.

a) The Applicant's current accommodation:

Jeffrey Baum is President of Adapt-Able Designs, a consultation, design and renovation company specializing in accessibility. His curriculum vitae and partial client list indicate that the company is consulted by insurers, adjusters and law firms, government agencies, hospitals, associations representing the disabled, and other community groups, on issues relating to home and workplace accessibility (Exhibit 12). He testified that he has been consulted by insurers and hospitals to assist in discharge planning. He has dealt with housing issues for disabled persons of all ages, including persons with neurological and cognitive disabilities resulting from a motor vehicle accident. He is familiar with all forms of housing, and deals in both new construction and renovation of housing. Mr. Baum testified as an expert on accessible housing.

At the request of the Applicant's representatives, Mr. Baum prepared a Home Accessibility Report for the Applicant, dated June 11, 1993 (Exhibit 1, Tab I). In preparing his report, Mr. Baum relied on meetings with the family, a site assessment of the Applicant's current accommodation, information provided by Pat Sacks, and information from Toyoko Sameshima and the Toronto MLS service about housing available in Metro Toronto.

Toyoko Sameshima also testified about housing issues. She is a social worker (M.S.W.) with a number of years of experience in hospital discharge planning for patients with spinal cord and other injuries, including injuries like Hugh John's. In 1991, she started her own company, Community Living and Rehabilitation Consultants, which provides case management and discharge planning services. She was asked by Applicant's counsel to consider the Applicant's housing options. She met with the MacMaster family at their present home, talked to Ms. Sacks, Mr. Baum, and Pat Keating, of Inter-action, and reviewed the reports of Dr. Franks and Ms. Sacks. Ms. Sameshima's report, dated June 21, 1993, was entered into evidence (Exhibit 1, Tab J), and she testified at the hearing.

Mr. Baum, Ms. Sameshima, and Ms. Sacks concluded that the Applicant's present accommodation is not accessible for him. In addition to the testimony of the housing experts, the Applicant, and his mother and brother, I had the benefit of a number of photographs of the interior and exterior of the Applicant's apartment (Exhibit 13). The Insurer did not seriously dispute this evidence.

I find that Mr. MacMaster's present accommodation is inadequate and unacceptable. The apartment is a standard two-bedroom unit on the second floor of a high-rise. The building's exterior doors are heavy, there are no automatic openers, and there are steps at the front entrance. The elevator access panel is too high for Mr. MacMaster to reach from his wheelchair, and the elevator door is too narrow and the cabin too small to allow free movement.

The doorways, openings and hallway in the unit are just barely wide enough for Mr. MacMaster's wheelchair, and do not allow free movement, especially considering his poor sensory-motor control. There are sills at the unit's front and balcony doors, and Mr. MacMaster cannot move his wheelchair over them. The kitchen is too narrow to allow a wheelchair to turn, and has standard fixtures. Mr. MacMaster cannot get his wheelchair into the bathroom at all, because the door is too narrow. The bathroom fixtures are standard fixtures, and there are no mobility aids other than a bath bench and shower chair. Mr. MacMaster must be assisted into the bathroom, and he needs help to access the toilet and shower. Mr. MacMaster has no reliable secondary (life safety) exit; he cannot get onto the balcony because of the sill at the doorway, he cannot use the stairs, and the building has only one elevator, which breaks down periodically. It is difficult and sometimes impossible for Mr. MacMaster to leave the building unassisted.

Moreover, the apartment is too small. There are only two bedrooms, and Mrs. MacMaster sleeps on the living room couch; she has no privacy. Given the Applicant's storage needs (he has a manual and electric wheelchair, a scooter, a rollator walker, a quad cane, and therapy and exercise equipment), there is insufficient storage space for the ordinary needs of three adults. The single bathroom is insufficient for three adults, one of whom presumably requires more time for self-care. There is only one parking space, which the MacMaster's use for the Applicant's wheelchair van, while Michael MacMaster's van is parked in the visitor's parking lot.

I agree with Ms. Sacks, who reported that the housing problem is "the most pressing" of the family's needs, and "none of the recommendations regarding independence can be implemented in their current situation". In her letter to Jeffrey Baum (March 10, 1993, Exhibit 1, Tab G), she stated:

Although his [the Applicant's] potential for independence in terms of activities of daily living is quite good, the current restrictions imposed on him by his physical environment render him essentially totally dependent.

I accept the evidence of Mr. MacMaster's caregivers that his current accommodation is fostering dependence and impeding his rehabilitation.

b) What accommodation benefits are provided under section 6?

Both parties in this case focused their submissions on the issue of whether the Applicant is entitled to the purchase and renovation of a house under section 6. In my view, the more appropriate approach to rehabilitation is to consider the Applicant's specific rehabilitation needs.

The Applicant relies on paragraph 6(1)(f). The Insurer argues that paragraph 6(1)(e) implicitly precludes entitlement to home purchase. The relevant provisions are as follows:

6.----The 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,

(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.

The leading case about rehabilitation-related capital expenditures is Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588. The applicant in that case was a sensory-motor paraplegic as a result of the injuries sustained in the accident. He claimed a wheelchair van and renovations to his parents' house, both under paragraph 6(1)(f). The insurer had agreed to the home renovations before the hearing, and the applicant's entitlement to the renovations was not in issue. The main issue in that case was whether the applicant was entitled to a wheelchair van. Senior Arbitrator Rotter discussed the criteria to be considered in such a case. She held that the following criteria must be satisfied under paragraph 6(1)(f):

(1) It must be a reasonable expense resulting from the accident.

(2) It must be required because of the accident.

(3) 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.

I adopt these criteria, which have been accepted in a number of arbitration decisions. In Richard Mark Plows, the insurer had requested the signed statement referred to in the third criterion and provided for in subsection 6(4). I heard no evidence that such a request was made of Mr. MacMaster.

In any case, I find that the experts' reports clearly indicate that Mr. MacMaster's inaccessible accommodation is impeding his rehabilitation.

With regard to the second criterion, Arbitrator Rotter found that as a result of the accident, the applicant had "extraordinary" requirements for transportation. Because of his injuries, he could no longer walk or drive an ordinary car, but was dependent on others to drive him, or on public transit. Moreover, as a result of the accident, he had greater need for transportation, to get to and from medical and other appointments and to promote autonomy and independence.

Arbitrator Rotter rejected the insurer's argument that its obligations pertaining to transportation were limited to the obligation, set out in paragraph 6(1)(d), to pay transportation expenses to and from treatment, counselling and training sessions. She held that paragraph 6(1)(d) did not limit the insurer's liability where an individual has "extraordinary, ongoing requirements for transportation". Further, the purchase price of a wheelchair van was not per se unreasonable. Arbitrator Rotter held that a van should be purchased and modified to provide for hand controls, a wheelchair lift system, and a telephone. However, she held that the insurer was not obliged to pay for certain optional items: venetian blinds, deluxe spoke wheel covers, oak trim, auxiliary air conditioner, aluminum ladder and roof rack.

The insurer in the Richard Mark Plows case argued that if the applicant is entitled to a wheelchair van, the insurer should retain title, to prevent the applicant from obtaining a windfall profit. The arbitrator could find no basis for this in the Schedule, took note of the lifetime maximum of $500,000 and ruled that a modified van should be treated no differently than a wheelchair or other prosthetic device.

On appeal, the Director's Delegate upheld the arbitrator's decision.

Director's Delegate M.P. Richardson made the following comments about the scope of rehabilitation benefits under the Schedule:

I find that the Arbitrator did not err in adopting, by implication, an expansive definition of rehabilitation as including not only physical rehabilitation, but also vocational rehabilitation, psychological adjustment and the promotion of independence and functional self-sufficiency. Support for a definition of rehabilitation encompassing psychological adjustment to injury is found in section 6(4) of the No-Fault Benefits Schedule, which contemplates that a psychological advisor may attest as to the necessity of an expense for rehabilitation. Support for a view of rehabilitation as a long-term, ongoing process may be found also in subsection (3) and (8) of section 6, which provide for very substantial benefits over a long period of time.

The Director's Delegate held that, considering safety, accessibility, and climate, a van "was the most appropriate vehicle for the insured". She dismissed the Insurer's argument that it should retain legal ownership of the van.

I concur with the reasoning in Richard Mark Plows and I find it directly applicable to the case before me. As a result of catastrophic injuries suffered in the motor vehicle accident, Mr. MacMaster, like Mr. Plows, requires substantial assistance in physical, psychological, social and vocational rehabilitation. I find that Mr. MacMaster is entitled to such reasonable rehabilitation benefits, within the limits of subsections 6(3) and 6(8), as are necessary to allow him, as much as possible, to regain his pre-accident level of function and live in a way that is integrated with the rest of Canadian society.

Mr. Baum estimated that buying and renovating a house would cost between $250,000 and $350,000. This is a very large amount of money, but it falls within the maximum medical and rehabilitation benefit of $500,000. The Insurer pointed out that since some $140,000 of benefits have already been paid, the cost of a house would likely exhaust Mr. MacMaster's lifetime section 6 benefit, while about seven years remain in the benefit period. This is a legitimate concern. However, securing long-term accessible accommodation for Mr. MacMaster may well be the most cost-efficient means of fostering his rehabilitation. The alternative may be a series of expensive renovations in a series of rental units.

The Insurer submits that the specific inclusion of home renovations, in paragraph 6(1)(e), implicitly excludes home purchase as a benefit available under section 6. This line of argument was adequately dealt with in Richard Mark Plows, and I will say nothing further about it here.

Finally, the Insurer submits that a house is neither a "good" nor a "service" and therefore does not come within the language of paragraph 6(1)(f) of the Schedule. The Insurer relies on the definition of these terms in the Goods and Services Tax Act, R.S.C. 1990, c.45. Neither term is defined in the Insurance Act or the Schedule, the underlying purposes of which are very different from the purposes of the GST Act, a taxing statute. Applying the reasoning of Richard Mark Plows, I find that nothing in section 6 precludes entitlement to the purchase and renovation of a house if it is a reasonable and necessary rehabilitation expense required because of the accident.

c) The Applicant's accommodation needs:

I do not find it necessary to decide the form of accommodation to which Mr. MacMaster is entitled - whether tenure should be freehold, condominium or rental; whether funding should be private, co-operative, subsidized, or public; or whether the building should be a detached house, semi-detached, rowhouse or townhouse, low-rise or high-rise apartment building. My order focuses on specific accessibility features.

I find that as a result of the accident, the Applicant is entitled to accommodation which has the following features:

• a paved driveway or parking area, a garage large enough for a modified van, an additional parking space for Michael MacMaster's van, and an automatic garage opener;

• a wheelchair-accessible entrance with appropriate lighting, reasonable protection from the weather, and (if necessary) an automatic door-opener;

• a communications/security system, which may be an accessible telephone, pager or other device;

• an accessible secondary exit to ensure life safety;

• an accessible means of changing levels inside the house, building, or unit, if living areas and common areas are on more than one level;

• an accessible bedroom that is large enough to allow the installation of mobility or transfer aids and has room to store Hugh John's supplies and equipment;

• an accessible bathroom with accessible and appropriate fixtures including a bath bench, a roll-in shower unit, a wheel-under vanity, a stand-up urinal, transfer aids and appropriate hand controls;

• an accessible kitchen with appropriate fixtures including a roll-under sink and counters, and appliances;

• an accessible area suitable for exercise or therapy, either within the house or unit, or in an accessible and appropriate common area;

• doorways and openings which are wide enough to freely accommodate the Applicant's wheelchairs;

• durable wall coverings and corner guards, where needed;

• floors which are level and obstacle-free;

• an accessible and appropriate backyard (if accommodation is found in a house) or common green space (if accommodation is found in a multi-unit building); and

• reasonably convenient access to disabled transit services and medical and rehabilitation services.

I find that these are "goods and services" which the Applicant requires as a result of the accident. Under section 6 of the Schedule, the Applicant is entitled to these rehabilitation benefits, subject to the limits set out in subsections 6(3) and 6(8), pertaining to reasonable expenses incurred to obtain appropriate accommodation.

The Insurer did not dispute the Applicant's entitlement to accommodation which is also appropriate for his mother and brother. I accept that the Applicant's current care needs are most reasonably met by his mother and brother, and that appropriate accommodation for the Applicant must include accommodation for three adults. Accordingly, I find that appropriate accommodation for the Applicant must also include the following additional features:

• two additional bedrooms, for the Applicant's mother and brother;

• an additional bathroom, for the use of the Applicant's mother and brother;

• sufficient storage and living space to meet the family's ordinary needs;

• a parking space for Michael MacMaster's van; and

• a location that is reasonably convenient to Michael MacMaster's work in Brampton.

The Applicant lived with his brother before the accident, and obviously he incurred the usual accommodation costs. The two-bedroom apartment they still live in rents for $720 per month. Since the Applicant was discharged from hospital, the Insurer has paid the Applicant a rent supplement of $580 per month, in order to allow the Applicant to pay for a three-bedroom apartment, average rent for which is around $1,300 per month. This represents an attempt to apportion costs between accident-related costs (the need for a third bedroom for Mrs. MacMaster, who is the Applicant's main caregiver) and unrelated costs (the rent Mr. MacMaster and his brother would pay for a two-bedroom apartment if the accident had not happened). The $580 per month payment does not recognize additional costs of renovation and equipment which would be directly attributable to the accident. I heard no submissions about how the Applicant and the Insurer should share the cost of renting or buying and renovating a house or apartment.

I would think the Applicant's ordinary accommodation expenses should be recognized in the agreement reached by the parties. It would also seem to be appropriate to recognize the accommodation benefit the Insurer has already paid in the form of the monthly rent supplement.

d) Housing options:

I accept Mr. Baum's conclusion that it would not be feasible to modify Mr. MacMaster's present apartment because it is too small, has no accessible secondary exit, and would require extensive structural modifications. In addition, the approval of building management would be required.

I also accept that the common areas of the building are inaccessible and could not be made accessible without very substantial and expensive structural renovations, which building management is unlikely to approve. For this reason, I find that moving to a larger unit in the same building is not a reasonable option for the Applicant.

Mr. Baum and Ms. Sameshima testified that it would be "extremely difficult, if not impossible" to find an accessible or adaptable three-bedroom apartment in the private rental market. I accept this evidence, which was corroborated by the Insurer's rehabilitation caseworker (undated report of Jodi Harendorf, Rehabilitation Services of Canada, Exhibit 15). In addition, the Applicant would need to get the owner's approval for renovations, and would almost certainly be required to return the unit to its original condition when the family moves. Further, the required renovations to common areas may be impossible or prohibitively costly. For these reasons, I accept that a private rental apartment is not a realistic or reasonable option.

Ms. Sameshima testified that regulations require five per cent of the units in new co-operatives to be accessible to disabled persons. In her report, she listed 27 co-operatives in the City of Toronto, 11 of which have some accessible units. However, not enough accessible units are available, and some of them are assigned to Attendant Care Programs. The few three-bedroom units available tend to be occupied by young families, and there is very little turnover. There are waiting lists, and some of them are closed. Another problem is that there are degrees of accessibility. A unit may be classified as "accessible" because a wheelchair can get through the front door; however it may be necessary to renovate it further for the Applicant. I accept that the Applicant is unlikely to find an accessible or adaptable three-bedroom co-operative unit within a reasonable period of time. However, it appears to me that this option may be worth further investigation by the parties.

Ms. Sameshima and Ms. Harendorf also explored public housing options. They agreed that most units in public housing buildings are one- or two-bedroom units. Very few accessible three-bedroom units exist, and most have been occupied by one family for a long term. There are waiting lists, many of them closed, for the few three-bedroom accessible units that become available. Ms. Sameshima testified that the waiting lists are so long that Mr. MacMaster stands no realistic chance of reaching the top of the list. In my view, Mr. MacMaster is not required to sit out his ten-year benefit period while waiting for his name to get to the top of a waiting list. Nor is he required to wait so long to get into accessible accommodations that his rehabilitation is impeded.

Ms. Sameshima reported that the MacMaster family "is not accustomed to a public housing environment and would find it extremely difficult if forced to live in one." In her testimony, she affirmed that the family's attitude about subsidized housing is "very negative". If anything, the family has become firmer in this attitude over time. She testified that they were especially worried about the drug activity in some of these complexes. Moreover, the MTHA Placement Co-ordinator advised her that the family would not be recommended for public housing if they were not accustomed to it. In my view, Mr. MacMaster is not required to accept accommodation which would have been unacceptable to him before the accident.

The Insurer's counsel suggested that because of the difficulties of finding long-term accessible accommodation, the Applicant should have been prepared to move immediately into a three-bedroom inaccessible apartment. This would only solve one problem: the family's need for another bedroom and bathroom. It would do nothing to solve the Applicant's main problem, of living in inaccessible accommodation. I draw no adverse inferences from the family's decision not to undertake the difficulties of a move to an inaccessible three-bedroom unit. The Applicant is not required to accept any interim proposal which does not reasonably address his special needs, as well as the family's need for more space.

Mr. Baum testified that buying a condominium would solve the problem of security of tenure, but Mr. MacMaster would have to get the corporation's permission to renovate common areas, and might also need permission to make the extensive renovations required within his unit. For this reason, I am not satisfied that a condominium apartment would be substantially more suitable for the Applicant than a rental apartment.

Mr. Baum and Ms. Sameshima recommended that a house be purchased and renovated for the Applicant. In his report, Mr. Baum stated that "[a] bungalow style home measuring approximately 1600 square feet, with three bedrooms, two bathrooms, a finished basement, and an attached oversize garage would be most easily amenable to the type of renovations that must be undertaken." Houses meeting these requirements in north-west Toronto were priced between $196,000 and $289,000. A suitable house in Brampton would probably cost between $155,000 and $200,000. The required renovations would cost approximately $59,000, with a maximum of $80,000 (Appendix IV, Exhibit 1, Tab I).

Mr. Baum and Ms. Sameshima also investigated the availability of accessible or adaptable rental houses. In November 1993, Mr. Baum learned about a suitable three-bedroom bungalow available in Brampton, for rent of $1,250 per month plus utilities. However, the house was rented before the Applicant made an offer. According to Mr. Baum, the owners "seem amenable to allowing us to undertake minor accessibility modifications ..., if we promise to return the home back to its original condition prior to the family moving out". Because many owners are likely to demand that the house be returned in the same condition it was in when first rented, renting may turn out to be a costlier option than buying. Moreover, the Applicant would have limited security of tenure or, on the other hand, freedom of movement. I can imagine good reasons why the Applicant might some day want to move - in order to pursue treatment, rehabilitation or employment, to rejoin his birth family in Nova Scotia, or to settle down with a family of his own. The renovations Mr. MacMaster needs will be costly; if he moves, the value of the renovations will be lost to him, and he may well incur the cost of returning the unit or house to its original state. Finally, the Insurer will likely be reluctant to pay for the same renovations to the new accommodation, especially if the move were to occur after the end of the ten-year benefit period. The Applicant is a young man. He is entitled to consider his long-term rehabilitation needs in deciding on the appropriate accommodation.

The main advantage of rental, from the Insurer's point of view, is administrative convenience, compared to the difficulties of apportioning house financing. Renting has serious disadvantages, but I am not persuaded they are prohibitive. Further to my order, the parties may well be able to reach an agreement which would provide the Applicant with assurance that he will have reasonable security of tenure and reasonable mobility, and will be reimbursed for any additional renovation costs - the cost of returning the accommodation to its original condition, if he moves, and the cost of renovating new accommodation. In considering the options, the parties should consider the long-term costs, as well as the short-term costs.

Options for financing and apportioning the cost of a house were not dealt with at the hearing. I encourage the parties to discuss the options.

However, I accept the evidence of Mr. Baum and Ms. Sameshima that the Applicant is very unlikely to quickly find accommodation which is already accessible for him. If appropriate adaptable accommodation is found, further renovations will almost certainly be necessary. In my view, the best options are likely to be (i) buying and renovating a suitable house, or (ii) renting and renovating a suitable house.

It was clear in the hearing that the social significance of where people live, and particularly of home ownership, played a part in the positions taken by both parties. The underlying purpose of section 6 is to return the applicant to his or her pre-accident level of function, to the extent that is reasonably possible. Mr. MacMaster is not entitled to receive a "windfall" as a result of his accident. He is not entitled to hold out for a house, and accept nothing less. He must be reasonable in working with the Insurer to reach a solution which, while it may not be ideal, is workable and reasonable. Nor is he required to accept a standard of living he would not have accepted before the accident. If, as a result of the accident, he requires a different and more expensive type of housing than he had before the accident, the necessary expenses fall squarely within paragraph 6(1)(f), to the limits set out in the section.

Three years after the accident, Mr. MacMaster still lives in an inaccessible apartment. His inadequate accommodation is impeding his rehabilitation and reintegration into Canadian society. In the arbitration decision, Surbir Singh Gaba and Allstate Insurance Company, August 21, 1992, OIC File No. A-000624, Arbitrator K. Julaine Palmer made the following comments about the importance of cooperation between insurers and insured persons in fashioning a rehabilitation program:

It is my view that, where such questions of rehabilitation arise, insurers and injured persons should work co-operatively to achieve a consensus as to the appropriate rehabilitation, occupational counselling and training program that an injured person should pursue. Automobile insurers in this province have developed expertise in evaluating the great number of such programs offered by different health care professionals. The family physician, orthopaedic specialist, other health professionals, solicitor, injured person and insurer, all working together, should be able to achieve the goal of rehabilitating the injured person to a pre-accident level of function.

This approach has been reaffirmed subsequently in a number of decisions of various arbitrators. It is especially important that the parties cooperate to develop a rehabilitation plan in a case of serious injury, where the issue is complex and multi-faceted.

I will remain seized of the housing issue. If the parties are unable to agree upon a housing plan for the Applicant, either party may bring the matter back before me after two months from the date of this decision. I will then determine any remaining issues relating to accommodation.

Special Award:

The Applicant seeks a special award under subsection 282(10) of the Insurance Act on the ground that the Insurer unreasonably delayed payment of certain medical and rehabilitation benefits.

a) Accommodation:

In this Interim Decision, I have set out a number of guidelines concerning the Applicant's entitlement to rehabilitation benefits in regard to accommodation. However, I make no order as to the amount of benefits or type of accommodation to which the Applicant is entitled. In my view, it would be premature to determine whether a special award is payable with respect to accommodation benefits before the Applicant's entitlement to those benefits is decided. I will remain seized of this issue.

b) Wheelchair van:

On June 22, 1993, the Applicant, through his counsel, claimed a wheelchair van. At mediation on September 14, 1993, the parties agreed that within 14 calendar days of the first mediation meeting on September 14, the Applicant would provide the Insurer with an additional quote for a modified van (one quote was provided in June), and a letter from a doctor and rehabilitation caseworker indicating that the expense is necessary.

On October 29, the Applicant's counsel forwarded the required letter from Dr. Franks, dated October 26, 1993 (Exhibit 1, Tab D). In her letter of October 13, 1993 (Exhibit 1, Tab Q), Pat Sacks compared the cost and features of the modified Ford Econoline and Volkswagen Eurovan, and recommended the Volkswagen. Kino's quote for a modified Volkswagen van was faxed to the Insurer on February 15, 1994 (Exhibit 10). The parties agreed at the hearing that this was the first time the Insurer was provided with a quote on a modified Volkswagen van. The funds were paid just three days later, on February 18, 1994. The Insurer's request for certification was reasonable. I am not persuaded that the Insurer unreasonably delayed payment of the funds for a wheelchair van.

c) Other medical, care and rehabilitation benefits:

The report prepared by Applicant's counsel (Exhibit 5B) indicates that a number of other medical, care rehabilitation benefits were paid late.

On November 23, 1992, the Applicant claimed benefits totalling $19,021.27 for a number of accumulated medical and rehabilitation expenses. These claims were paid on February 22, 1993. I am prepared to accept that the Insurer needed time to review the documentation submitted in support of these claims, given the large amount at issue. However, I heard nothing which would explain why the Insurer needed three months. At no time did the Insurer question the nature or amount of these claims. I find that payment of these benefits was unreasonably delayed.

There were delays, as well, in paying for rehabilitation services provided by Nancy Haston & Associates. The June 4, 1993 claim for $3,991.96 was paid on September 2. The June 29, August 13, and September 20 claims, totalling $2,045.31, were paid on November 2, 1993. The claim for $784.40 made on November 25, 1993, was paid on March 31, 1994.

The January 13, 1994 claim for $307.59 was paid on March 31, 1994. Care benefits of $349.80 claimed on March 21, 1994 were paid on May 18. On June 21, 1993, the Applicant claimed a total of $941.11 for five items. Payment was made on September 2, 1993. Again, the Insurer did not dispute the Applicant's entitlement to these benefits, and offered no reason for these delays. I find that these delays were unreasonable.

The report prepared by the Applicant's counsel indicates that the Applicant first claimed care benefits for the services of Michael MacMaster and Anne MacMaster on March 3, 1993. At mediation, the Insurer agreed to pay $3,000 per month in ongoing care benefits, for the period following the Applicant's release from hospital. Benefits of $3,000 per month to October 1, 1993 (total $30,000) were paid on October 1, 1993, following mediation. These benefits have been paid promptly since then. I am not satisfied that the Insurer's delay in paying these benefits was unreasonable. There is some uncertainty about the scope of benefits available under sections 6 and 7. In addition, the Applicant initially claimed a further $30,000 in care benefits for the period before his discharge from hospital (Exhibit 11), but abandoned this claim at mediation.

I have disregarded some of the shorter delays of several days to two weeks. While these delays attract interest under section 24, I am not persuaded they are unreasonable so as to attract a special award. The Applicant's report also includes a number of claims for which no payment date is given. I heard no evidence as to whether this information was missing because it was unavailable or because payment had not been made. A few pertained to claims which were not yet overdue. I also disregard these items.

d) Amount of special award:

The payments which were unreasonably delayed in this matter come to a substantial amount of money. Although the Insurer has raised legitimate issues about the scope of care and rehabilitation benefits, I am troubled by the pattern of unexplained late payment of benefits.

I heard no evidence to suggest that the Insurer was acting in bad faith in its conduct of these claims. However, a special award is not an award of punitive or exemplary damages. The Act provides that the arbitrator "shall" make a special award if she or he finds that the insurer "has unreasonably withheld or delayed payments". There is no requirement for a finding of wilful misconduct or bad faith. In my view, delays for which no reason is given are inherently unreasonable.

The Insurer will pay a lump sum of $3,000, inclusive of interest as provided under subsection 282(10) of the Act.

Interest calculation:

The Applicant submitted that even in the absence of a special award, compound interest is payable on all overdue benefits. I disagree. Subsection 24(4) of the Schedule provides that "interest" is payable "on overdue payments from the time they become overdue at the rate of 2 per cent per month." In my view, the legislative provision for "interest" means "simple interest", unless the statutory language specifies that it means "compound interest". Subsection 24(4) is not punitive in intent. It merely imposes a charge for the Insurer's use of money overdue to the Applicant. In contrast, subsection 282(10) of the Act expressly provides for interest "at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable". In my view, this is consistent with the purpose of the special award, which is to penalize the unreasonable withholding or denial of benefits. I find that subsection 24(4) provides for simple interest on overdue benefits.

Expenses:

The Applicant is entitled to his expenses pertaining to the arbitration. I remain seized of the issue of expenses. If the parties are unable to agree on the proper amount of expenses, either of them may bring the matter before me for determination.

Order:

1. The Applicant is not entitled to care benefits in excess of $3,000 per month.

2. The Applicant is entitled to rehabilitation benefits in respect of accommodation, as set out in the decision at pp. 18-20.

I remain seized of the issue of accommodation benefits. If, after two months following the release of this decision, the parties are unable to agree on the appropriate accommodation for the Applicant in accordance with the requirements set out in this decision, either party may bring the matter before me for determination.

Under section 24 of the Schedule, interest is payable on rehabilitation benefits owing. I am unable to calculate the amount because the Applicant's entitlement has not been quantified. I remain seized of this issue. If the parties are unable to agree on the amount owing, either party may bring the matter before me for determination.

3. The Applicant is entitled to a special award of $3,000, inclusive of interest under subsection 282(10) of the Act.

4. The Applicant is entitled to his expenses incurred in the arbitration proceeding. I remain seized of the issue of the amount of expenses payable. If the parties are unable to agree, either party may bring this issue before me for determination.

October 26, 1994

Nancy Makepeace Arbitrator

Date

APPENDIX - THE RECORD

Exhibits:

5. Applicant's Brief of Medical Reports:

Tab A

Sunnybrook Health Sciences - Admission July 14, 1991

Discharge November 22, 1991

Tab B

Riverdale Hospital Records - Admission November 22, 1991

Discharge January 21, 1992

Tab C

West Park Hospital Records - Admission January 21, 1992

Discharge October 2, 1992

Tab D

Dr. William M. Franks - July 9, 1992

October 26, 1993 March 30, 1994

Tab E

Dr. D. Rewilak - February 18, 1992

Tab F

Correspondence from Dr. M. Fazl, dated September 25, 1992, enclosing reports from Sunnybrook Health Sciences Centre, which include:

Operative note - July 14, 1991 Operative note - July 28, 1991 Discharge Summary - November 22, 1991

Tab G

Nancy Haston & Associates January 18, 1993

March 5, 1993

March 10, 1993

March 31, 1993

May 11, 1993

June 21, 1993

July 26, 1993

July 29, 1993

August 30, 1993

October 6, 1993

October 7, 1993

October 13, 1993

November 16, 1993

January 4, 1994

February 9, 1994

March 16, 1994

April 21, 1994

Tab H

Inter-Action to Nancy Haston & Associates

May 5, 1993

August 23, 1993

February 10, 1994

Tab I

Adapt-Able Design Home Accessibility Report, dated June 11, 1993

Tab J

Community Living & Rehabilitation Consultants Report, dated June 21, 1993

Tab K

Dr. Guy-Bernard Proulx's assessment and clinical notes and records, dated September 21, 1993

6. Curriculum Vitae of Toyoko Sameshima

7. Report and Addendum to Ms. Sameshima's report of May 16, 1994

8. Curriculum Vitae of Dr. William Franks

9. Computer printout

a) Income Items Report

b) Medical/Care/Rehabilitation Items Report

10. Letter from Joe Flam to Beverly Marks, dated June 22, 1993

11. Letter from Joseph Pileggi to Beverly Marks, dated October 29, 1993

12. Letter from Joseph Pileggi to Dahlia Ellis, dated November 18, 1993

13. Letter from Joseph Pileggi to Dahlia Ellis, dated November 17, 1993

14. Letter from Joseph Pileggi to Barry D. Brown, dated February 15, 1994

15. Letter from Joseph Pileggi to Beverly Marks, dated March 11, 1993

16. Curriculum Vitae of Jeffrey Baum

17. Original photographs of Hugh John MacMaster's accommodations

18. Rehabilitation Services of Canada Report, dated October 13, 1993

19. Notes and correspondence from Dominion of Canada's file pertaining to Hugh John MacMaster

Other documents before the Arbitrator:

Report of Mediator, dated October 14, 1993

Application for Appointment of an Arbitrator, dated November 11, 1993

Response by Insurer, dated December 15, 1993

Pre-hearing letter, dated March 2, 1994

Cases referred to:

1. Joseph N. Bush and Pilot Insurance Company, April 25, 1994, OIC File No. A-004687;

2. Surbir Singh Gaba and Allstate Insurance Company, August 21, 1992, OIC File No. A-000624;

3. Anh Le and Wellington Insurance Company, November 25, 1992, OIC File No. A-000920;

4. Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588.

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.