Neutral Citation: 1994 ONICDRG 14
File No. A-003410
ONTARIO INSURANCE COMMISSION
BETWEEN:
YANG PARK
Applicant
and
THE CITADEL GENERAL ASSURANCE COMPANY
Insurer
SUPPLEMENTARY DECISION
A decision was issued in this matter on August 23, 1993. I remained seized of the following issues which the parties have been unable to resolve. This decision is based on the evidence presented at the original hearing and on the further written submissions of the parties.
- Babysitting and Housekeeping Expenses
In late 1991, Mrs. Park needed assistance with her household duties, particularly child care. The Citadel agreed to pay for Mrs. Park's mother, Mrs. Won, to come to Canada in January 1992 to help her daughter. Initially, there was no expectation that Mrs. Won would be paid for her services. In late 1992 or early 1993, however, Mrs. Park applied to The Citadel for care benefits of $1,500 a month under section 7 of Ontario Regulation 6721 to compensate her mother for lost income.
In the original decision, I concluded that Mrs. Park's claim did not fall within section 7 because Mrs. Won was not "caring for" her, but rather was looking after the Park's son and doing housework.
However, I left open the possibility that Mrs. Park might be eligible for benefits for child care and housekeeping under section 6(1) (f):
6(1) 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.
Mrs. Park now claims benefits under section 6(1)(f), as follows:
a) A claim for $150 a week from January 2, 1992 to March 4, 1993 with respect to services provided by Mrs. Park's mother, including housekeeping, errands and babysitting.
b) A claim for $374 per week for housekeeping and babysitting services provided by Mrs. Park's mother from March 4, 1993 to present, calculated as follows:
(i) based on local babysitting rate:
$4.00/hr. x 8 hrs./day x 7 days/wk. = $224
(ii) based on the rate of a local cleaning company
$30.00/hr. x 2.5 hrs./day x 2 days/wk. = $150
a) Benefits under section 6 of the Schedule
The Director of Arbitrations is currently being asked to review an arbitration decision granting babysitting and housekeeping expenses under section 6(1) (f) of the Schedule (Trinidad Chamale and Wellington Insurance Company, O.I.C. No. P-000849 (September 25, 1992)). It was submitted on behalf of The Citadel that I should postpone making a decision in this matter until the appeal decision in Chamale is released. Although the appeal has been argued, the decision may not be released for some time. In my opinion, Mrs. Park is entitled to have a decision on this issue and, therefore, it would be inappropriate to delay the matter indefinitely.
It is my view that child care and housekeeping benefits are available under section 6(1) (f) if the criteria set out in previous arbitration decisions are met:
(i) The expense must be a reasonable expense resulting from the accident;
(ii) The expense must be required by the applicant because of the accident; and,
(iii) If required by the insurer, a medical practitioner must provide a signed statement that the expense is necessary for the applicant's treatment or rehabilitation.
Most of the arbitration decisions dealing with the availability of benefits for child care and housekeeping benefits have involved applicants who were homemakers and were not working at the time of their accident (Rekha Vasdani and The Personal Insurance Company of Canada, O.I.C. No. A-002148 (April 27, 1993); Anh Le and Wellington Insurance Company, O.I.C. No. A-000920 (November 25, 1992); and Trinidad Chamale and Wellington Insurance Company, O.I.C. No. A-000849 (September 25, 1992)).
In evaluating Mrs. Park's claim, it is important to take into account that she claimed and was found eligible for weekly income benefits under section 12 of the Schedule. I concluded that as a result of the accident, she was unable to perform the essential tasks of her occupation as a Korean-style teacher. Her evidence was that she was unable to continue running her own kindergarten programme due to the injuries that she sustained in the accident.
I agree with the approach taken in Barbara Edwards and State Farm Mutual Automobile Insurance Company, O.I.C. No. A-001707 (July 12, 1993). In that case, the applicant was receiving weekly income benefits under section 12. The arbitrator considered her claim for benefits for child care under section 6(1)(f), but denied the expenses that the applicant would have incurred whether or not she had been involved in an accident. Such expenses are not "expenses resulting from the accident".
In this case, both Mr. and Mrs. Park were working full-time. They would have had to make child care arrangements in order to operate her kindergarten. I am not prepared, therefore, to find her eligible for benefits for child care during work hours. However, people working full-time also may have child care and housekeeping responsibilities which may meet the criteria set out above.
b) January 2, 1992 to March 4, 1993
Mrs. Park now claims $150 a week for services provided by her mother, including housekeeping, errands and babysitting. It was submitted on her behalf that this assistance was necessary because she was unable to do heavy work, such as lifting her baby and vacuuming, due to back problems.
In the original decision, I indicated that I would not be inclined to order benefits for any period prior to the date of Mrs. Park's operation on March 4, 1993. I have not received any further evidence or submissions which changed my mind. I accept that Mrs. Park was having back problems during this period, but am not convinced that they prevented her from doing either the child care or household tasks that she would have done outside of her work hours. I conclude, therefore, that Mrs. Park is not eligible for benefits under section 6(1) (f) of the Schedule for the period from January 2, 1992 to March 4, 1993.
c) March 4, 1993 to present
I view the period following Mrs. Park's operation on March 4, 1993 differently. In the original decision, I indicated that the evidence was reasonably strong that Mrs. Park needed some assistance with child care and housework following her operation. Prior to the operation, her family doctor, Dr. Oh, wrote a letter to whom it may concern, as follows:
This lady's daughter will be having a back surgery on 4th Mar. 1993 and will need assistance at home post-surgery for 6 - 8 weeks from her. She warrants extension on her visiting visa under this circumstance.
Unfortunately, the operation was not successful. Mrs. Park testified that her pain increased after the surgery. In consultation with Dr. Schweigel, who had performed the surgery, Mrs. Park decided to proceed with open surgery on her back. The open surgery was done on July 12, 1993.
It was submitted on behalf of The Citadel that benefits should not be ordered because Mrs. Won provided services to her daughter voluntarily. As I stated in the original decision, however, I do not believe that Mrs. Won was obligated to provide voluntary services indefinitely. By early 1993, Mrs. Park had made it clear to The Citadel that she wanted her mother to continue to provide assistance with child care and housekeeping, but wanted to compensate her for her services.
As a result of a pre-hearing discussion on November 4, 1993, Mr. Park agreed "to provide a brief letter from Dr. Schweigel saying what assistance Mrs. Park needs in doing housekeeping and child care work, why she needs the assistance and for what period." Dr. Schweigel provided a letter, dated November 17, 1993, as follows:
Your wife had surgery on June 8, 1993 [sic, July 12, 1993]. Before surgery did require some help for some of the heavier work in the home and similarly for approximately 2.5 - 3 months post surgery. However, at this moment she does not require any more help.
I conclude that although Mrs. Park did not require assistance to the extent that she has requested, she did require some assistance, primarily with heavy housework, for the period from her first operation until three months after her second operation (March 4, 1993 to October 12, 1993). This is a period of almost 32 weeks. I also conclude that it is reasonable for that assistance to be provided by Mrs. Won, as long as her compensation is limited to the minimum wage.
It is difficult to determine a reasonable amount of time for Mrs. Won's services, keeping in mind that Mrs. Park is only entitled to be compensated for expenses resulting from the accident. Based on the evidence provided, I conclude that an average of seven hours a week is reasonable for Mrs. Won to do the heavy work that Mrs. Park was physically unable to do.
In calculating the benefit owing, I have taken the benefit period as 32 weeks and have used $6.00 an hour as the minimum wage. It is my understanding that this has been the minimum wage in British Columbia since April 1, 1993. I calculate the total benefit as $1,344.00:
224 hours (32 weeks x 7 hours a week)
x $6.00 per hour
$ 1,344.00
I conclude, therefore, that Mrs. Park is entitled to benefits under section 6 of the Schedule in the amount of $1,344.00. She is also entitled to interest, calculated according to section 24 of the Schedule, but only from October 3, 1993, which is thirty days after her application for benefits under section 6.
2) Expenses
In the original decision, Mrs. Park was awarded her expenses related to the arbitration. The parties have been unable to resolve one aspect of the expenses. Mrs. Park claims her husband's loss of income while attending the hearing, totalling $462.
The prescribed expenses are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990. I agree with the submission made on behalf of The Citadel that income lost by a witness or representative is not recoverable as an expense. Therefore, I deny Mrs. Park's claim for expenses of $462.
Finally, I conclude that no further expenses should be ordered arising out of this supplementary matter. The issues were dealt with by way of written submissions. Mrs. Park was represented by her husband, and his submissions were extremely brief. In the circumstances, I do not feel any further expenses are warranted.
Order:
Mrs. Park is not entitled to benefits for child care and homemaking services under section 6(1)(f) of the Schedule for the period from January 2, 1992 to March 4, 1993.
Mrs. Park is entitled to benefits under section 6 of the Schedule, primarily for heavy housekeeping, for the period from March 4, 1993 to October 12, 1993, in the total amount of $1,344.00, plus interest from October 3, 1993.
Mrs. Park is not entitled to expenses of $462, representing income lost by her husband to attend the arbitration hearing.
February 21, 1994
David R. Draper Arbitrator
Date