Neutral Citation: 1994 ONICDRG 141
File No. A-004948
ONTARIO INSURANCE COMMISSION
BETWEEN:
STEVE RYAN
Applicant
and
AXA INSURANCE (CANADA)
Insurer
DECISION
Issues:
Richard Ryan, aged fifteen, sustained injuries in an accident while a passenger in a van driven by his sister on June 29, 1990. Richard's father, Steve Ryan, applied for accident benefits from AXA Insurance (AXA), payable under Ontario Regulation 6721. Mr. Ryan claims that he gave up his job as a real estate salesperson to care for his injured son and that, under section 7 of the Schedule, he is entitled to care benefits for Richard Ryan from August 11, 1990 to December 16, 1992. Mr. Ryan claims that his gross income was $385.90 per week. AXA paid Mr. Ryan $297.50 per week during that period. Mr. Ryan seeks to recover the weekly difference of $88.40. AXA claims that Mr. Ryan is not entitled to care benefits. AXA claims that the payments were made in error and it requests a repayment order.
The parties were unable to resolve the dispute through mediation and Mr. Ryan applied for arbitration under the Insurance Act.
The issues in this hearing are:
Is Mr. Ryan entitled to care benefits for his son from August 11, 1990 to December 16, 1992?
What is the amount of the care benefits?
Is AXA entitled to repayment?
Mr. Ryan claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Ryan is not entitled to care benefits from August 11, 1990 until December 16, 1992.
Mr. Ryan did not prove that he lost any income.
AXA is entitled to repayment of the care benefits paid to Mr. Ryan.
Hearing:
The hearing was held in North York, Ontario, on March 1 and 7, 1994, before me, Fred Sampliner, arbitrator.
Present at the Hearing:
Applicant:
Steve Ryan
Insurer's
Geoffrey Adair
Representative:
Barrister and Solicitor
Insurer's
Fiammetta Yack
Officer:
Litigation Specialist, Claims Dept.
Witnesses:
Steve Ryan
Fiammetta Yack
The proceedings were recorded by E. "Manny" Strauch of Holley & Strauch, Court Reporters.
Evidence and Findings:
Entitlement:
Mr. Steve Ryan's entitlement to care benefits is determined under section 7 of the Schedule, which provides:
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.
Steve Ryan stated in his Application for Appointment of an Arbitrator that he ceased work on August 11, 1990, in order to care for his son throughout the day and at night; more specifically, to accompany him to medical and other appointments which were necessitated by Richard's accident injuries.
Mr. Ryan testified that in the first six months after the accident, Richard had medical appointments about once every two weeks. Richard did not have an operator's licence to drive a motor vehicle at that time.
Mr. Ryan testified that his son has been able to attend to all of his personal hygiene needs since the accident. He dresses himself and eats without assistance. He also socializes with his friends, rides his dirtbike and entertains himself at home without supervision.
Mr. Ryan testified that his "care" for Richard consisted of driving him to appointments, playing pool with him, talking to him, and generally providing him with psychological support.
Mr. Ryan said that his presence at home was necessary because Richard became depressed after the accident. He tried to attend school for the first few days of the 1990/1991 session, but quit because he was unable to concentrate or deal with his classmates. He did not return to school that academic year. After Richard's brief school attendance in September 1990, it appears that most of his time was spent at home or attending health care appointments.
Mr. Ryan characterized his care for Richard as supportive. He wanted to "be there" when his son needed him. However, other than through very general statements, Mr. Ryan did not explain his son's injuries, the medical or psychological condition which required his full-time care, or the specific support he provided. Mr. Ryan's testimony about Richard's injuries and care was extremely brief, and does not establish that full-time care for Richard was required.
The expert reports supplement Mr. Ryan's brief description of Richard's condition and care requirements.
Dr. W.J. Horsey, a neurosurgeon, examined Richard and prepared a report, dated September 23, 1992. Dr. Horsey's report describes the accident and summarizes Richard's health status.
Dr. Horsey states that in the accident of June 29, 1990, Richard's head shattered the front passenger window. Richard told Dr. Horsey that he did not lose consciousness, and that he climbed through the broken window after the collision. He was treated at a hospital emergency room for facial abrasions and lacerations, and was released.
Dr. Horsey states in his report that Richard developed severe headaches shortly after the accident. He returned to the hospital and also saw his family physician, Dr. E.D. Hubbard. Dr. Hubbard ordered x-rays of Richard's spine and skull, but he could find no abnormality. Dr. Hubbard also referred Richard to physiotherapy for treatment of a cervical (neck) and right shoulder strain; however, Richard's headaches, neck and back problems persisted.
Dr. Horsey reports that during the following months Richard saw many other health care professionals. He complained of fatigue, blurred vision, inability to concentrate, noise intolerance, dizziness, irritability, memory loss and sleeplessness.
Dr. Horsey relates that Dr. P.G. Coffey, a general surgeon, examined Richard on August 9, 1990. Dr. Coffey could not find any physiological explanation for Richard's headaches and soft tissue complaints, although he did find neck stiffness.
Dr. Horsey states that Dr. Shrives, an internist, diagnosed that Richard sustained a severe whiplash injury. He recommended a brain scan on October 19, 1990. Dr. Shrives also reported that a consulting optometrist had been unable to determine the cause for Richard's complaints of blurred vision and headaches. However, in May 1992, Dr. D. Whiteman, an ophthalmologist, diagnosed simple myopia (nearsightedness), unrelated to the accident. The brain scan, and EEG and SPECT scans were conducted in November 1990, the results of which were normal.
A year later, according to Dr. Horsey, Richard underwent a series of nerve blocks to alleviate his headaches. Between November 1, 1991 and March 12, 1992, Dr. J.W.K. Tyle administered a number of steroid injections to Richard, which were temporarily helpful. Richard was also taking medication to relieve his symptoms, with varying results.
Two orthopaedic surgeons were consulted about the whiplash injury, according to Dr. Horsey. On April 8, 1991, Dr. E.P. Urovitz concluded that Richard's headaches were a whiplash symptom, which he said was under control at that time. On the other hand, Dr. B.J. Woolford examined Richard, conducted thermography tests on August 6, 1991, and diagnosed post-concussion headaches, post-traumatic anxiety and depression, moderate cervical strain, and bilateral rotator cuff (shoulder) strain. Dr. Woolford recommended physiotherapy and exercise.
Dr. Horsey reports that a physiatrist, Dr. W. Franks, treated Richard. In sharp contrast to the other practitioners, he apparently concluded that Richard suffered serious brain damage in the accident. However, I was not provided with Dr. Franks' report, or other evidence which might substantiate this conclusion.
Moreover, Dr. Horsey dismissed Dr. Franks' diagnosis:
In summary, I believe this man has had a soft tissue injury to his neck which has recovered. There was a contusion of the scalp, a small laceration, but there was no evidence of intracranial injury. His problems are currently non-organic. It is difficult for me to relate the injury to his current psychiatric state. I believe he requires psychiatric treatment.
Summarizing the treatment history related in Dr. Horsey's report, it is clear that Richard developed a bewildering variety of symptoms after the accident. Tests did not reveal an organic injury. Though the examining practitioners are divided on the severity of Richard's soft tissue injuries, none indicate that he was physically incapacitated. I agree with Dr. Horsey that Richard's problems were primarily psychological at that time.
Dr. Horsey says that Richard received counselling from a psychiatrist, Dr. Rowsell. Dr. Rowsell diagnosed post-traumatic stress disorder. Unfortunately, I was not provided with any evidence directly from Dr. Rowsell, and I am therefore unable to draw upon his firsthand knowledge of Richard's psychological condition, and care requirements.
The social worker's report provides additional information from Dr. Rowsell. The March 23, 1992 report from Neuro-Rehabilitation Consultants states that Dr. Rowsell recommended that Mr. Ryan be paid for attendant care. The report does not explain either the care services Mr. Ryan was to provide or Richard's needs. I find that this general conclusion is unsupported and does not adequately address Richard's care requirements.
Dr. F.T. Kenny, a neuropsychologist, apparently did not agree with Dr. Rowsell's diagnosis of post-traumatic stress syndrome. Dr. Kenny conducted an examination and extensive psychological testing of Richard. His report, dated June 5, 1992, concluded that Richard's symptoms were more consistent with a passive aggressive personality disorder, pre-dating the accident. Dr. Kenny recommended that close supervision of Richard was unnecessary, and might even be harmful to his long term recovery.
Richard was also seen three times by a clinical psychologist, Dr. Proulx. His June 18, 1993 report is focused on Richard's rehabilitation needs and does not address the attendant care issue.
In fact, none of the health practitioners' reports specifically address Richard's care requirements. I have very little evidence from either the experts or through Mr. Ryan's testimony that conclusively shows either a physical or psychological need for a full-time caregiver.
On the contrary, the medical report of Dr. Horsey indicates that Richard spent his days without much assistance or supervision. Richard described a typical day in his life to Dr. Horsey. Dr. Horsey reported that Richard said he had difficulty sleeping and usually arose at 11:00 a.m. Either he or his father cooked breakfast, after which he went to one of his health care appointments. Upon returning home he was often fatigued and rested. Later during the day he might play pool with his father, work on his car or walk the dog. Bedtime was around 10:30 p.m., but often Richard would not get to sleep until much later. This description of Richard's day confirms Mr. Ryan's testimony.
Essentially, the evidence demonstrates that Mr. Ryan provided companionship for his teenage son. Playing games, cooking an occasional meal, taking walks and providing general guidance, support and company for a child are normal duties that any parent would perform for their child, regardless of an accident injury. For guidance, support and companionship to be compensable under section 7 of the Schedule, the claimant must prove that the individual's physical or psychological condition resulting from the accident requires adult supervision beyond the normal parental duties ordinarily performed.
In sum, the evidence does not establish that Mr. Ryan did anything other than his normal parental duties. Though Mr. Ryan's availability may have fostered a better father/son relationship, the evidence does not establish that Richard required full-time care. Thus, I find that Mr. Ryan is not entitled to be paid full-time care benefits, under section 7 of the Schedule.
This ruling does not dispose of Mr. Ryan's claim entirely. He may be entitled to some compensation for Richard's part-time care and transportation needs which were accident-related. Although this was not an issue in the hearing, I point out for the parties' guidance that where the care provider cannot show a wage loss, arbitrators have set a reasonable rate, such as a minimum wage, for driving time and other part-time duties performed for the injured person.
I also share Mr. Ryan's concern for his son's future. Richard's recovery has been prolonged, and his education has been delayed. Richard has spent considerable time in therapy, with unimpressive results, and it seems as if the treatment provided has lacked direction. He has reportedly seen over fifteen different practitioners since the accident, and I can well understand his father's frustration. The Insurer and Richard's physicians should be working together to coordinate a treatment plan so that he has a more productive future.
Income Loss:
Even if Mr. Ryan was successful in establishing an entitlement to caregiver benefits, I find he did not lose employment income.
At the time of the June 29, 1990 accident, Mr. Ryan testified that he was a real estate agent with Home Life Trust. The market was very depressed, and he had not made any sales or earned a commission for many months prior to the accident. Nonetheless, Mr. Ryan claims that he quit his job on August 11, 1990, to care for Richard.
Mr. Ryan's claim that he lost income is contradicted by the evidence. In a letter to UIC, dated September 22, 1992, Mr. Ryan stated that he quit real estate because he ran out of money. Mr. Ryan agreed that he wrote the letter, and explained that he lost confidence in the real estate market because he had not made any sales. Further, Mr. Ryan said that he was looking for work during the weeks he collected UIC, and that he would have taken an employment offer if one had been made. Mr. Ryan also said that he had planned to leave real estate even before the accident.
Doubtless Mr. Ryan was concerned about his son's welfare after the accident. But the evidence indicates that Mr. Ryan had not earned any money at his job for quite some time, and he quit for economic reasons. Thus, I find that Mr. Ryan did not lose real estate commissions as a result of Richard's injuries, compensable under section 7 of the Schedule.
Mr. Ryan was employed as a security guard at Canadian Protection Services Ltd. from August 30, 1991 until January 10, 1992. Mr. Ryan initially claimed he quit the security job to provide full-time care for Richard.
AXA paid Mr. Ryan caregiver benefits, based on his earnings as a security guard. The parties agree that Mr. Ryan was paid $297.50 per week from August 11, 1990 to December 16, 1992, based upon his earnings at Canadian Protection Services.
Mr. Ryan testified about why he left that company. He received a negative job performance evaluation. As a result of the performance evaluation, he was placed on probation. Later, he asked the company to lay him off. In a letter dated February 6, 1992, Canadian Protection Services wrote that Mr. Ryan was laid off due to seniority and work shortages. This evidence establishes that Mr. Ryan left work because the company no longer required his services. Consequently, I find that Mr. Ryan did not incur a wage loss from his security job attributable to his son's care.
Overpayment:
The evidence did not prove that Mr. Ryan was either entitled to full-time care benefits for his son or that he lost income. Mr. Ryan was paid a total of $36,295.00 in care benefits to which he is not entitled.
Section 27 of the Schedule provides:
27.--(1) A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.
The claims supervisor for AXA, Fiammetta Yack, testified about her knowledge of Mr. Ryan's care benefits claim. Ms. Yack said that Mr. Ryan first applied for financial assistance to care for Richard in January 1992, about a year and a half after Richard's accident. He wrote a letter to AXA on January 19, 1992, which states in part:
Ever since the accident he [Richard] has required much treatment causing me to leave my real estate career and take a night and evening job at $7.00 per hour as a security guard. On January 9, 1992 I was laid off this position.
Ms. Yack testified that on March 17, 1992, AXA decided to pay Mr. Ryan full-time care benefits for Richard of $297.50 per week from January 10, 1992, the date that Mr. Ryan was laid off from his security job. AXA continued to pay this sum until December 16, 1992.
After AXA made the decision to pay care benefits, Mr. Ryan asked the Insurer to pay for care during an earlier time slot. On April 26, 1992, Mr. Ryan asked to be paid care benefits from August 25, 1990 through August 30, 1991:
To review the accident was June 29, 1990 and my care for Rick began as soon as I met him at emergency when he was brought in by ambulance. Multiple doctors visits [sic] resulted and continue to be made. On August 11, 1990 our family doctor advised me to cease my real estate career to take care of our kids and myself.
I find that none of the experts recommended that Mr. Ryan quit work to care for his son.
Ms. Yack testified that Mr. Ryan told her that he quit work to care for Richard. She reasoned that Richard's injuries would have to be serious if Mr. Ryan quit a good job. However, she also said that Mr. Ryan never explained that he was not earning any income at real estate or that, regardless of the accident, he planned to leave the job.
Mr. Ryan told AXA that he was providing full-time care for Richard. His April 26, 1992 letter to AXA states:
... my care for Richard has been constant since June 29, 1990 involving personal care & transportation.
Ms. Yack stated that Mr. Ryan told her that all of his time was spent looking after Richard. Mr. Ryan did not deny this evidence.
Mr. Ryan's correspondence to AXA together with the uncontradicted testimony of Ms. Yack, demonstrates that Mr. Ryan misled AXA. His conduct induced the Insurer to pay the claim, and greatly contributed to AXA's error. Though short of outright fraud, I find that Mr. Ryan has been overpaid and that AXA is entitled to a repayment order in accordance with section 27 of the Schedule.
It seems unfortunate that Mr. Ryan, who came to arbitration seeking additional benefits, should wind up having to repay all of the benefits that he received. But when the additional entitlement claim extends back to the time of the first payment, and the arbitrator finds that there was no entitlement in the first place, the legislation leaves little choice except to order repayment.
Expenses:
I do not find Mr. Ryan's conduct fraudulent. Under this circumstance, I exercise my discretion to award Mr. Ryan his expenses of the arbitration.
He was not represented by a lawyer, and his expenses will likely be quite limited. If the parties disagree on the amount of the expenses, then I remain seized to assess the costs.
Order:
Mr. Ryan is not entitled to full-time care benefits for Richard Ryan.
AXA is entitled to repayment of $36,295.00, plus interest, in accordance with section 27 of the Schedule.
Mr. Ryan is entitled to his expenses of the arbitration.
Fred Sampliner
Arbitrator
Date
Exhibits:
Exhibit 1
Photocopy of Insurer counsel's letter to Mr. Ryan, dated December 29, 1993
Exhibit 2
Photocopy of Insurer counsel's letter to Mr. Ryan, dated January 24, 1994
Exhibit 3
Photocopy of Canadian Protection Services letter "To Whom It May Concern", dated February 6, 1992
Exhibit 4
Revenue Canada (UIC) earnings report, dated September 18, 1990
Exhibit 5
Neuro-Rehabilitation Consultants Report, dated March 23, 1992
Exhibit 6
Photocopy of letter from Fiammetta Yack to Dr. Proulx, dated April 16, 1993
Exhibit 7
Medical report of Dr. Proulx, dated June 18, 1993
Exhibit 8
Oshawa General Hospital letter to Richard Ryan, dated August 31, 1993
Exhibit 9
Business card of Teresa Doran, Ontario Ministry of Community and Social Services
Exhibit 10
Photocopy of Steve Ryan's letter to UIC, September 22, 1992
Exhibit 11
Moog-Canada, Ltd. letter "To Whom It May Concern", dated May 8, 1990
Exhibit 12
Photocopy of Steve Ryan's letter to AXA, dated October 19, 1991
Exhibit 13
Photocopy of Richard Ryan's Ontario driving licence application, dated July 22, 1991
Exhibit 14
Medical report of Dr. E. D. Hubbard, dated April 27, 1993
Exhibit 15
Medical report of Dr. W. J. Horsey, dated September 23, 1992
Exhibit 16
Medical report of Dr. Frank Kenny, dated June 5, 1992
Exhibit 17
Photocopy of Steve Ryan's letter to AXA, dated January 19, 1992
Exhibit 18
Photocopy of Canadian Protection Services Ltd. letter "To Whom It May Concern", dated February 6, 1992
Exhibit 19
Photocopy of Steve Ryan's letter to AXA, dated April 26, 1992
Exhibit 20
Photocopy of Steve Ryan's letter to AXA, dated February 21, 1992