Wellington Insurance Company v. Trinidad Chamale, 1996 ONICDRG 117

Ontario Insurance Commission

Commission des assurances de l'Ontario

Neutral Citation: 1996 ONICDRG 117

Appeal P-000849

OFFICE OF THE DIRECTOR OF ARBITRATIONS

WELLINGTON INSURANCE COMPANY Appellant

and

TRINIDAD CHAMALE Respondent

Before: Elisabeth Sachs

Counsel: Edmund Kent (for Wellington) Frank Loreto (for Trinidad Chamale)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is dismissed and the arbitration order dated September 25, 1992 is confirmed.
2. Mr. Chamale is entitled to his appeal expenses.

July 9, 1996

Elisabeth Sachs Director of Arbitrations

Date

REASONS FOR DECISION

I. BACKGROUND

The respondent, Trinidad Chamale, was injured in a motor vehicle accident on March 31, 1991. He received weekly benefits and child care benefits from the appellant, Wellington Insurance Company ("Wellington") until October 7, 1991 under O. Reg. 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the Schedule) when they were terminated.

Mr. Chamale sought reimbursement under paragraph 6(1)(f) of the Schedule for babysitting and housekeeping services which he claimed were required because of the accident. The total amount in dispute was $4,070. At a one day arbitration hearing, three witnesses testified and several medical reports were filed. The arbitrator awarded Mr. Chamale $3,720, plus interest, for babysitting and housekeeping services for the period April 14 to September 7, 1991.

Wellington appealed the order on the basis that the arbitrator erred in her interpretation of the intent and scope of section 13 and paragraph 6(1)(f) of the Schedule. Wellington also argued the decision is against the weight of the evidence and asks it be reversed or varied.

II. ISSUES AND ANALYSIS

A. Scope and Intent of Sections 13 and 6(1)(f)

Mr. Chamale was unemployed at the time of the accident, and the primary caregiver to his three youngest children. He received weekly benefits of $185 under s.13 of the Schedule based on his substantial inability to perform the essential tasks he normally engaged in, that is, looking after his children and domestic duties. He also received $50 for each of the three children as their primary caregiver under subsection 13(4).

Mr. Chamale also claimed expenses he incurred in hiring a family friend to do occasional babysitting, daily housekeeping and cooking as "other services" under paragraph 6(1)(f) of the Schedule. The arbitrator found that babysitting and certain domestic chores were part of Mr. Chamale's essential tasks.

In this scheme of statutory accident benefits, no general damages are available for pain, suffering, inconvenience or other losses of accident victims. Employed or self-employed persons are paid a weekly income benefit, based on the calculation set out in s. 12 of the Schedule. Unemployed persons, such as Mr. Chamale, receive a flat-rate weekly benefit of $185.60 if they suffer a "substantial inability to perform the essential tasks in which he or she would normally engage", as set out in s.13 of the Schedule.

Under Part II of the Schedule, both groups are entitled to supplementary medical, rehabilitation and care benefits for "all reasonable expenses resulting from the accident" up to prescribed monetary and temporal limits. The expenses can be for "care", various devices, renovations or services set out in paragraphs (a) through (e) of subsection 6(1) of the Schedule. A further category of expense, which might be called "other", is found in paragraph 6(1)(f) as follows:

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

The focus of the Schedule, Wellington submits, is the need of the insured person who has the injury, not replacement of his or her services. It submits that Mr. Chamale should not receive any reimbursement under this paragraph for housekeeping and babysitting services, because he was already receiving weekly benefits under subsections 13(1) and 13(4). It argues such expenses are covered by s.13 as replacement services for Mr. Chamale's own tasks, and are not doubly recoverable under both s.13 and paragraph 6(1)(f). To bolster this approach, Wellington notes there is an optional benefit for primary caregivers available under paragraph 19(1)(3), to increase the amount payable under ss.13(4) to $100 weekly per dependant. Wellington states there is no logical reason for the existence of paragraph 19(1)(3) if housekeeping and babysitting expenses are available under paragraph 6(1)(f). In any event, Wellington submits that on the facts as found, the arbitrator should have reduced the amounts claimed for the housekeeper so that only those services provided for Mr. Chamale, not the rest of his family, were payable by Wellington under the Schedule.

The basis of the appeal is that the arbitrator erred in law by finding Mr. Chamale was eligible for benefits under both s. 13 and paragraph 6(1)(f). The same arguments were advanced on appeal as before the arbitrator. In the decision, the arbitrator took great care to outline why, in her view the expenditures claimed fell squarely within the scope of s. 6. I must decide whether the arbitrator has misdirected herself, or come to an erroneous conclusion in interpretation or application of the Schedule to render her decision unsupportable in law. At page 15 of the decision, the arbitrator wrote:

The logic of the Insurer's submission rests on the assumption that section 13 benefits are intended to compensate applicants for all additional expenses they have incurred as a result of the accident, including the cost of replacing the services that applicants were previously able to perform for themselves. It is argued, therefore, that section 13 represents the exclusive source of recovery for these expenses, including the costs of housekeeping and child-care.

After noting the reasoning in the Morin case¹ where it was held s. 13 weekly benefits were meant to compensate for an individual's loss of function, (or as stated in the appeal decision, loss of opportunity) the arbitrator held that the purpose of providing benefits to a primary caregiver can be seen in a similar way. The arbitrator concluded, at p. 17:

Had the Legislature intended to exclude persons in receipt of section 12 or section 13 benefits from recovery of itemized housekeeping or babysitting expenses, such language could readily have been incorporated in the legislation. Examples of qualifying language in other instances can be found throughout the regulations.

Therefore, I find that receipt of benefits under section 13 of the No-Fault Benefits Schedule does not preclude an applicant from seeking to recover itemized expenses for housekeeping and child-care expenses that the applicant has incurred.

Although the Schedule does not say what the basis or purpose of section 13 benefits is, the test of eligibility is clearly set out. Their receipt is qualified by, among others, a deduction for any payments for loss of income. Similarly, the basis for receiving supplementary health, rehabilitation and care benefits under Part II of the Schedule is set out in the opening words of subsections 6(1) and 7(1). Further, by virtue of ss. 6(4) before making any payment for ss. 6(1) benefits, the insurer may require that a statement signed by a health care provider be submitted. Nowhere in these sections or in the Schedule can it be found or inferred that s. 13 claimants are to be treated any differently than other claimants with respect to the provision of "other" services such as housekeeping or babysitting. Nothing precludes those claimants from also receiving benefits under s. 6 and s. 7.

Whether a claimant is employed, self-employed or unemployed, as long as he or she meets the test for eligibility in section 6 or 7, and the expense claimed results from the accident, it is properly payable under paragraph 6(1)(f). While benefits under section 12 are specifically geared to income calculations, the benefits under section 13 are not, nor are they "tailored" under ss. 13(4) to the expenses of care. Recovery under this section does not, in my view, foreclose recovery under s. 6 and s. 7 if the qualifying terms are met by the insured person.

I note that section 9 of the Schedule provides for an exception to payments under ss. 6(1), if another plan or law provides those services. This exception does not suggest that receipt of weekly benefits under ss. 13(1) or (4) means no recovery is available for the appropriate supplementary medical, rehabilitation and care benefits under s. 6. If Wellington's theory of the scope of the sections is right, then such a limitation could easily have been inserted here.

The main qualifier under paragraph 6(1)(f) is "which the insured person requires". A person receiving weekly benefits under s. 13 may also receive benefits under s. 6, including housekeeping and child care expenses so long as those expenses relate to the needs of the insured person. The inclusion of Optional Benefit 3: Increased Primary Caregiver Benefit, in section 19 reinforces my view that the devices, services and renovations available under section 6 and 7 are for those goods and services required by the insured person for their own treatment and rehabilitation and are not intended to provide replacement services for the family of the insured. The caregiver benefit in subsection 13(4) might indeed be used for such services. That being so, what is properly recoverable under section 6? In my view, the answer lies in the individual circumstances of the insured person. As a result, were the amounts ordered in this case appropriate to the circumstances of Mr. Chamale?

B. Reduction of Allowable Expenses

In allowing certain expenses under paragraph 6(1)(f), did the arbitrator go beyond the requirements of Mr. Chamale's treatment and rehabilitation, and oblige Wellington to, in effect, replace the services to the family which were his essential tasks?

This aspect of the appeal is essentially factual. There is no additional evidence offered in respect of the reasonableness or necessity of the services provided to Mr. Chamale. Wellington argued that the services allowed went well beyond "rehabilitation" for Mr. Chamale, given the evidence. The arbitrator found in respect of physical needs, and I agree, Mr. Chamale:

...reasonably requires a safe, comfortable and clean environment in which to live and to recover from his injuries. He needs to eat properly prepared meals. (p.19, Decision)

She also noted, in the same paragraph that he:

... requires the reassurance that his legal and moral obligations to care for his children are being fulfilled. (The) services provided by Ms. Gomez were intended to address these needs, and can therefore reasonably be characterized as required for (his) rehabilitation.

The contentious issue is whether, in addressing the need for Mr. Chamale's children to be properly cared for, the service goes beyond that which Mr. Chamale is entitled to recover for his own rehabilitation. Where the service is predominantly for others, Wellington says the arbitrator should have apportioned the expense.

No issue was taken with the hourly rate paid to Ms. Gomez, but to the extent she babysat, walked a child to school and cooked meals for the whole family, it is difficult to say these were provided in respect of Mr. Chamale's rehabilitation. Indeed, I would not characterize them as such. However, the arbitrator found babysitting duties were "incidental to her principal housekeeping responsibilities" and where Ms. Gomez' services benefitted other family members, "incidental to the benefit accruing to (him)" (emphasis added).

In reviewing Ms. Gomez' activities, the arbitrator found that she worked four to five hours daily with no specific record kept of what she did during that time on any particular day. The evidence appeared to be such that the arbitrator could not realistically tease out the services required by Mr. Chamale for his rehabilitation and care, as opposed to those which might properly be "replacement" of his services. I agree with Wellington that the decision is overly generous in that respect and a reduction, beyond the one found by the arbitrator based on disability, should have been made where Mr. Chamale's duties as a father and homemaker were supplied by Ms. Gomez.

With no transcript or new material available on appeal, it appears from the record that the arbitrator heard no evidence or analysis in argument of any basis on which she could have come to a different conclusion. I cannot arbitrarily substitute a finding, on the material before me, that potentially a two, ten or twenty percent reduction in the expense claimed would be reasonable. The Director's function on appeal is not to interfere with an arbitrator's findings unless they have insufficient or no evidence to support them². The arbitrator did reduce the amount claimed, on the basis of the integrity of the evidence surrounding Ms. Gomez' services and the medical information about Mr. Chamale's ability to resume doing his essential tasks. Here, given the exhibits filed at the arbitration and on the information before me, I am unable to conclude the arbitrator's findings should be reversed or varied.

III. EXPENSES

Wellington's appeal is unsuccessful. Mr. Chamale is entitled to his reasonable expenses. If the parties cannot agree, expenses may be assessed by filing written submissions with the Registrar.

July 9, 1996

Elisabeth Sachs Director of Arbitrations

Date

Footnotes

1. 1Morin and The Personal Insurance Company of Canada, (June 16, 1992, OIC A-000468) , revs'd on appeal (February 26, 1993, OIC P-000468).
2. 2See Calogero and The Co-operators General Insurance Company, (February 13, 1992, OIC P-000251), and the subsequent appeal cases applying the principles first enunciated in that decision.