Neutral Citation: 1996 ONICDRG 24

File No.: A-014676

ONTARIO INSURANCE COMMISSION

BETWEEN:

ELLEN COE

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Ellen Coe, was injured in a motor vehicle accident on June 19, 1993. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly benefits were terminated by the Insurer on August 10, 1994 and care benefits were terminated on September 23, 1994. 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:

Preliminary Issues:

1. Did Mrs. Coe make herself reasonably available to attend an independent medical examination in accordance with section 23(2) of the Schedule?

2. Is Mrs. Coe precluded under section 25 of the Schedule from proceeding to arbitration because she failed to attend an independent medical examination?

Result:

1. Mrs. Coe did make herself reasonably available to attend an independent medical examination in accordance with section 23(2) of the Schedule.

2. Mrs. Coe is not precluded under section 25 of the Schedule from proceeding to arbitration because she failed to attend an independent medical examination.

Substantive Issues:

1. Is Mrs. Coe entitled to ongoing weekly benefits under section 13(1) of the Schedule from August 11, 1994 to the present on the basis that she is substantially unable to perform the essential tasks in which she would normally engage?

I was not asked to decide entitlement to post-156 week benefits under section 13(8) of the Schedule.

2. Is Mrs. Coe entitled to ongoing care benefits under section 7(1)(a) of the Schedule from September 24, 1994 to the present?

3. Is Mrs. Coe entitled to a special award under section 282(10) of the Insurance Act on the basis that the Insurer unreasonably delayed or withheld benefit payments?

Mrs. Coe also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Mrs. Coe is entitled to ongoing weekly benefits under section 13(1) of the Schedule from August 11, 1994 to the present.

2. Mrs. Coe is entitled to ongoing care benefits under section 7(1)(a) of the Schedule at the rate of $250 per week from September 24, 1994 to the present.

3. Mrs. Coe is entitled under section 282(10) of the Insurance Act to a special award of $2,000.

Mrs. Coe is entitled to interest on any amounts owing and to her expenses of the arbitration.

Hearing:

The hearing was held in Toronto, Ontario, on November 27, November 28 and December 8, 1995, before me, Beth Allen, arbitrator. The proceedings were recorded by court reporters, Mr. Tomczak, Ms. Rossi and Ms. Vieira of Professional Court Reporters Inc.

Present at the Hearing:

Applicant:

Ellen Coe

Applicant's Representative:

Salina F. Chagpar

Barrister and Solicitor

Insurer's Representative:

Robert A. Robinson

Barrister and Solicitor

Insurer's Officer:

Erminio Bellissimo

Claims Supervisor

Witnesses:

For the Applicant:

Ellen Cummings

Kerrie Lynn Borden

For the Insurer:

Dr. Saul (for cross-examination)

Jessie Webb

Exhibits:

Listed in Schedule "A."

The Applicant's and Insurer's document briefs were marked as Exhibits 1 and 2 respectively. The parties agreed that only those documents from their briefs introduced during the hearing together with any additional documents submitted as exhibits would be listed in the decision as exhibits.

The Insurer also submitted a bound brief of cases.

The Preliminary Issue

Counsel for the Insurer submitted that Mrs. Coe is not entitled to proceed to the arbitration of her claims because she failed to attend an independent medical examination scheduled for November 16, 1995. Counsel for the Insurer based his submission on sections 23(2) and 25 of the Schedule. Section 23(2) entitles the insurer to require the insured, on reasonable notice, to undergo a medical examination. This provision states:

In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

Counsel for the Insurer also submitted that section 25 precludes the insured from proceeding to arbitration unless the insured person makes herself reasonably available for an examination required under section 23. Subsection 25 provides:

No person may commence a mediation proceeding under section 242(b) of the Insurance Act in respect of benefits under this Schedule unless the requirements of section 22 have been satisfied and the insured person has made himself or herself reasonably available for any examination required under section 23.

Facts Related to the Preliminary Issue:

On November 14, 1995 counsel for the Insurer advised counsel for Mrs. Coe of an appointment for a medical examination scheduled for Mrs. Coe for November 16, 1995. On November 15, counsel for Mrs. Coe advised counsel for the Insurer that, although Mrs. Coe agreed to attend the medical examination, she was not certain whether Mrs. Coe would be able to attend. Mrs. Coe's attendance at the examination would depend on how she was feeling on the morning of the appointment. Counsel for Mrs. Coe stated that she would advise counsel for the Insurer of Mrs. Coe's status on the morning of the appointment. In fact counsel for Mrs. Coe did advise counsel for the Insurer on the morning of November 16 that Mrs. Coe was not feeling well that morning and would not be able to attend the appointment.

Mrs. Coe presented no evidence that she had difficulty with the short notice period for the appointment.

Counsel for Mrs. Coe sent a letter dated November 26, 1995² to counsel for the Insurer's office advising that Mrs. Coe would make herself available for a future medical appointment arranged by the Insurer.

Mrs. Coe, age 89 years, gave evidence about her practice around attendances at doctors' appointments. She was asked if she could recall why she did not attend the November 16 medical examination. She indicated that she could not remember the exact circumstances of the morning of November 16, but did remember being sick one day in that week. She thought she might have been ill on the morning of the appointment. Mrs. Coe testified that unless she is feeling ill she always attends her doctor's appointments. Someone always takes her to medical appointments.

Reasons for Decision on the Preliminary Issue:

After hearing evidence and submissions, I conclude that Mrs. Coe made herself reasonably available to attend the medical examination scheduled by the Insurer for November 16, 1995.

Despite the short two-day notice period for the appointment, Mrs. Coe did not object to attending the appointment. Through her counsel she warned the Insurer in advance that her attendance would depend on the state of her health on the morning of the appointment whether she would be able to attend. It so happened that she was not well that morning, and her counsel so advised the Insurer's counsel that morning.

In a previous arbitration decision³ Senior Arbitrator Rotter determined that it is open to an insured to provide a reasonable excuse for not attending an independent medical examination. In the Opatowski case the insured did not provide a reasonable excuse for failing to attend the appointment. Arbitrator Rotter found for this reason that the insured did not make himself reasonably available for the medical examination in accordance with sections 23(2) and 25 of the Schedule.

In this case I find that Mrs. Coe made herself reasonably available and provided a reasonable excuse for not attending the scheduled examination. I took into consideration Mrs. Coe's age, the short notice for the appointment and the fact that Mrs. Coe's counsel provided advance warning of Mrs. Coe's potential non-attendance. Given Mrs. Coe's senior years and the nature of her injuries, the anticipation of her not feeling well is understandable.

Through the November 26 letter from her counsel, Mrs. Coe expressed a willingness to attend a future medical examination arranged by the Insurer. However, since the Insurer set the November 16 appointment so close in time to the hearing date, there was no reasonable opportunity for Mrs. Coe to attend a further appointment.

In view of my decision that Mrs. Coe made herself reasonably available for the independent medical examination, it is not necessary for me to determine the legal effect of her failing without reasonable excuse to attend an independent medical examination.

Reasons for Decision

The Accident:

Mrs. Coe was involved in a motor vehicle accident on June 19, 1993. At the time she was 87 years old.

When the accident occurred Mrs. Coe was a back seat passenger with her husband. She was wearing a seat belt. The car in which Mrs. Coe was a passenger rear-ended another car. Mrs. Coe and her husband were taken by ambulance to the emergency unit of Dufferin Area Hospital in Orangeville, Ontario.

Mr. and Mrs. Coe were both injured. Mr. Coe sustained a ruptured diaphragm in the accident and was later transferred to St. Michael's Hospital in Toronto, Ontario where he remains. Mrs. Coe sustained a number of physical injuries.

Entitlement to Section 13 Benefits

The Requirements of Section 13:

Mrs. Coe claims entitlement to weekly benefits under section 13(1) of the Schedule. To establish her entitlement to benefits under this provision, she must meet a three-fold test. She must show that she:

1. sustained a physical, psychological or mental injury

2. as a result of an accident and

3. suffered a substantial inability to perform the essential tasks in which she would normally engage

Mrs. Coe's Essential Tasks:

Mrs. Coe described her life before the accident. Her memory was sketchy in some areas but she was able to make general statements about the quality of her life with her husband, Edward, her partner of 68 years.⁴ She stated that together she and her husband looked after their apartment. They did daily tidying and dusting, cleaned the bathroom daily, waxed floors and vacuumed. They did their laundry together. Mrs. Coe attended to her personal hygiene. Mrs. and Mr. Coe usually took taxis to do their grocery shopping. At times their daughter helped with grocery shopping. Occasionally, a neighbour, Jessie Webb, came over to visit and to help Mrs. Coe and her husband if needed.

At the time of the accident and to the present, Mrs. Coe has lived in a senior citizens' apartment building where activities are planned for the residents. Mrs. Coe testified that before the accident she and her husband regularly participated in these activities. They played euchre and bingo in the evenings in the building's recreation room. They regularly went on planned bus trips.

Other witnesses supported Mrs. Coe's evidence about her life before the accident. Their evidence confirmed that she was exceptionally active and outgoing for a woman of her age.

Ms. Ellen Cummings, Mrs. Coe's daughter, testifying for her mother, stated that her mother was a very proud and independent person before the accident. She pointed out that her parents set regular days to do such household chores as laundry and ironing. She described her mother socially as a being "at the centre of things, a going concern" before the accident. Her mother and father were always eager to socialize, and were actively involved in seniors' outings. Ms. Cummings took them to church every Sunday. Mrs. Coe and her husband were very reliable about being dressed and ready to go at pick-up time.

Mrs. Webb, Mrs. Coe's neighbour and friend of 12 years, testified for the Insurer. She testified that Mrs. Coe "could do everything" before the accident. She remarked that Mrs. Coe cooked full and varied meals daily for her husband and herself and did the dishes.

I am satisfied by the evidence that, despite her senior years, Mrs. Coe was a vibrant, active woman before the accident.

The accident benefits scheme requires that Mrs. Coe show that as a result of her accident she suffers a substantial inability to perform the essential tasks in which she would normally engage. Arbitration decisions have looked at which activities in an insured's life can be considered essential tasks. One case observed that an individualized inquiry into each applicant's case is required to compare pre-accident and post-accident activities."⁵ A finding that a task is essential requires that it be viewed in the context of a particular insured's circumstances. Another case distinguishes between "activities" and "tasks" and held that "casual social activities" which contribute to the quality of an insured's life are not essential tasks.⁶

After considering Mrs. Coe's evidence, that of her daughter, Ms. Cummings, and her neighbour, Mrs. Webb, I find that Mrs. Coe's essential tasks are:

1. personal hygiene

2. housekeeping duties such as dusting, washing/waxing floors, cleaning the washroom, vacuuming and sweeping the apartment

3. doing laundry

4. grocery shopping

5. preparing meals, doing dishes

6. going to church on Sundays and Bible reading

I included church-going and Bible-reading as essential tasks because the evidence shows the significance of these activities in the context of Mrs. Coe's life. The evidence is that pre-accident Mrs. Coe attended church on Sundays but ceased going to church after the accident due to her physical and emotional health. She has maintained her interest in the Bible, but due to injuries to her eyes she requires someone to read the Bible to her in the evening. I find that the importance of these activities to Mrs. Coe's life is understandable given her senior years.

Mrs. Coe's Medical Condition:

Mrs. Coe must show she suffers from a physical, psychological or mental injury resulting from an accident. She claims the accident has caused both physically and psychologically disabling injuries.

It is not in dispute that Mrs. Coe sustained rather serious physical injuries in the accident. However, counsel for the Insurer contended that the Insurer terminated benefits because Mrs. Coe was no longer disabled after August 1994. He further argued that Mrs. Coe suffers from a number of pre-accident medical conditions which have affected her health since the accident. Counsel for the Insurer also submitted that since Mrs. Coe was 87 years old at the time of the accident, any degeneration in her health since the accident is the result of the natural aging process that would have occurred irrespective of an accident.

The ambulance report from the accident dated June 19, 1993⁷ records loss of consciousness by Mrs. Coe with confusion and an inability to recall the accident. Hospital records⁸ reveal lacerations to her nose and extensive lacerations to both eyelids. Apparently her eyeglasses broke during the accident cutting her eyelids and facial area. She also sustained fractures to both her right pelvis and her seventh right rib⁹ when the back seat of the car dislodged during the accident.

During her hospital stay Mrs. Coe's eyelids were sutured and her lacerations were treated. Two plastic surgery procedures were performed on her right eyelid. Mrs. Coe remained in hospital until July 14, 1993. Upon her discharge, the Golden Sunset Residence, a nursing home, admitted her until September 30, 1993.

Medical evidence reveals that Mrs. Coe has a right eye corneal ulcer. The Insurer disputed that this condition is accident-related. Mrs. Coe's first post-accident visit to her pre-accident treating ophthalmologist, Dr. Lee-Own, was on January 26, 1994. An entry dated January 26, 1994 in Dr. Lee-Own's notes and records and subsequent medical reports, record this condition.¹⁰ Dr. Lee-Own's letter dated May 11, 1994¹¹ states that she has no knowledge of the cause of the corneal ulcer.

Dr. Lee-Own's pre-accident notes and records do not, nor does any of the other medical evidence, report a pre-existing corneal ulcer. Neither is there evidence of a post-accident, non-accident-related cause for this problem. Ms. Cummings testified that she was advised by a doctor that accident-related damage to the right eyelid has prevented her right eyelid from closing properly, resulting in the development of the ulcer. Dr. Saul testified that the accident-related damage to Mrs. Coe's eyelid was the likely cause of the corneal ulcer. He prescribed that Mrs. Coe receive drops in her eye at least three times per day and a have a patch applied at night.

I, therefore, accept Mrs. Coe's evidence that the corneal ulcer condition developed due to damage to her right eyelid as a result of the accident.

I also find that the accident has had a serious emotional impact on Mrs. Coe. Ms. Cummings stated that her mother complains of loneliness and depression without her husband. She testified that her mother constantly bemoans the loss of her husband's companionship and support. Mr. Coe has remained in the hospital during the two years since the accident. Mrs. Coe sees him only when she is taken to the hospital by a family member to visit him. She complains about the loss of her independence, but because of her pride often denies her dependence on others. According to Ms. Cummings and Ms. Borden, Mrs. Coe's current home care worker, since the accident Mrs. Coe has increasingly displayed little will to socialize. Some days she does not want to get out of bed. She seems to have given up.

Ms. Cummings indicated that her mother had a sharp memory before the accident. She knew the birthdays of family members. She always remembered times and places for appointments. However, Mrs. Coe has become very forgetful since the accident.

Dr. Saul referred Mrs. Coe to a psychiatrist for her emotional problems. In a consultation letter dated May 8, 1995,¹² Dr. Gelber, a psychiatrist, diagnosed major depression. He prescribed an anti-depressant.

I saw no evidence that Mrs. Coe suffered from depression or memory loss before the accident. On the contrary, the evidence shows that Mrs. Coe was a very sharp, high-spirited person. I, therefore, accept that Mrs. Coe's emotional problems and memory loss result from the accident. In coming to this conclusion I considered the tremendous impact on Mrs. Coe of losing her life partner of 68 years. The accident has deprived her of the comfort and support of her husband.

Counsel for the Insurer submitted that pre-accident medical records reveal that Mrs. Coe suffers from pre-existing medical conditions which have affected her health since the accident.

Counsel for the Insurer referred to a radiology report¹³ dated June 19, 1993 that records pre-accident degenerative changes in Mrs. Coe's neck and back. Ms. Cummings denied knowledge of any medical conditions which physically limited her mother before the accident. She stated that, while she knew her mother was receiving pre-accident chiropractic treatments, her mother never complained about pain. She thought her mother received chiropractic treatments solely for maintenance purposes.

Dr. Saul, Mrs. Coe's post-accident treating physician, testified that degenerative disc changes in the neck and back need not be disabling or physically limiting. This evidence accords with Ms. Cummings' testimony of her mother's pre-accident level of activity. I, therefore, accept that Mrs. Coe was not disabled by pre-accident neck or back conditions.

Counsel for the Insurer questioned Ms. Cummings about her mother's pre-accident cataract condition.¹⁴ Ms. Cummings indicated that she had no knowledge of pre-existing eye problems, although she noted that her mother wore glasses before the accident. She stressed that only after the accident did her mother require someone to read for her.

I accept that Mrs. Coe had bilateral cataracts before the accident, but I am satisfied that with the aid of glasses she could see to read on her own.

The medical evidence shows that Mrs. Coe had bilateral swollen ankles or edema before the accident.¹⁵ Ms. Cummings acknowledged this was a pre-accident condition, but indicated that it never limited her mother's activities. Again, there is no evidence before me indicating that swollen ankles were disabling to Mrs. Coe prior to the accident.

I, therefore, conclude that as a result of the accident, Mrs. Coe is disabled by the fractures to her pelvis and ribs, the injury to her eyes, particularly her right eye, and by depression due to the loss of her life partner and her independence.

I am not persuaded by the evidence before me that regardless of the accident, given her age, Mrs. Coe's physical and psychological health would have degenerated to its current level. On the contrary, I am convinced that Mrs. Coe was an exceptionally vibrant individual before the accident. Her life has been devastated by her physical injuries and the emotional trauma of losing her life partner and her independence, all as a result of the accident.

Substantial Inability:

Finally, Mrs. Coe must establish that, as a result of her injuries from the accident, she suffers from a substantial inability to perform her essential tasks. Previous arbitration decisions have interpreted "substantial inability." One decision held that "substantial inability" does not require proof of "total disability."¹⁶ It is not "some inability to perform tasks, but a sizeable inability which is compensable.¹⁷

Mrs. Coe claims that her fractured pelvis and rib, damage to her eyes and her psychological problems have substantially disabled her from doing her daily household chores and activities. Ms. Cummings' and Mrs. Webb's evidence confirmed that Mrs. Coe is less mobile since the accident; she cannot see well. She uses a cane inside the apartment and when walking with someone supporting her free arm. Otherwise she uses a walker. According to Ms. Cummings and Mrs. Webb, Mrs. Coe did not require assistance or a device for walking before the accident. Mrs. Webb, Ms. Cummings and Ms. Borden concurred that Mrs. Coe also requires someone to read for her.

Since her discharge from the nursing home to the present, Mrs. Coe has had the weekly assistance of a housekeeper. There is no dispute about Mrs. Coe's inability to perform certain household chores since the Insurer continues to pay the expenses of a housekeeper. The housekeeper performs tasks such as cleaning the stove and refrigerator, sweeping and vacuuming the floors and dusting the apartment and cleaning the bathroom.¹⁸ Hence, the housekeeper takes care of the majority of Mrs. Coe's household duties. Therefore, the outstanding essential tasks are: grocery shopping, personal hygiene, Bible-reading, church-going, laundry, preparation of meals and doing dishes.

There is concurrence that Mrs. Coe can no longer do grocery shopping. Ms.Cummings and Ms. Borden testified that they take care of this duty. There was also agreement among the witnesses that Mrs. Coe takes care of her personal hygiene.

I accept the evidence that because of Mrs. Coe's eye injuries she can no longer read the Bible and, due to her emotional and physical injuries, she can no longer attend church.

There is, however, a dispute over Mrs. Coe's ability to do laundry, prepare meals and do dishes. The evidence of Mrs. Coe's initial home care worker, Mrs. Webb, about Mrs. Coe's abilities in these areas was inconsistent with that of Ms. Cummings and Ms. Borden, the subsequent home care worker.

For nearly a year after the accident, from October 1993 until August 1994, Mrs. Webb provided home care for Mrs. Coe. Ms. Cummings terminated Mrs. Webb's services and in August 1994, hired a neighbour, Ms. Borden to replace her. Ms. Cummings terminated services without notice to Mrs. Webb while Mrs. Webb was on vacation. Ms. Cummings testified that she was not satisfied with the care provided by Mrs. Webb. After her termination, Mrs. Webb brought a legal action against Ms. Cummings for alleged monies owing for services rendered to Mrs. Coe. Ms. Cummings responded by defence and counterclaim.¹⁹

However, with Ms. Cummings' consent, Mrs. Webb continued to visit Mrs. Coe daily as a friend until she moved in April 1995. According to Mrs. Webb, for a period before she moved, Mrs. Coe was able to do her laundry, prepare meals and wash dishes.

Ms. Borden, age 21, had recently completed part of a community college nursing program when Mrs. Coe hired her as a home care worker. She claims that from about August 1994 to the present she has attended to Mrs. Coe seven days a week, for an average of eight to ten hours intermittently throughout a day. She testified that, among her home care chores, she prepares quick meals, does dishes and laundry for Mrs. Coe.

While Mrs. Webb kept a contemporaneous diary²⁰ of her involvement with Mrs. Coe for the period August 1994 to April 1995, Ms. Borden kept no written record. Mrs. Webb’s diary suggests that Ms. Borden did not attend at Mrs. Coe’s to the extent she claimed and that Mrs. Coe was able to perform tasks that other witnesses deny she could do.

Mrs. Webb's diary might be regarded as the best evidence available of Mrs. Coe's care for this period, since there is no other written record. However, I reasonably infer that due to Mrs. Webb’s unexpected dismissal and the subsequent litigation, she might bear ill will against Ms. Cummings and her successor, Ms. Borden. This ill will might have coloured the observations in her diary and influenced what she chose to note and comment on. Frequently in her notations, in a rather dismissive manner, she referred to Ms. Cummings and Ms. Borden as "they". In the hearing counsel had to ask her to clarify the references to "they."

Another weakness in the diary account is Mrs. Webb’s admission that many of the notations were actually based on information gained from Mrs. Coe rather than on her own observations. For instance, Mrs. Webb relied on Mrs. Coe’s account of her daily activities and on Mrs. Coe’s account of Ms. Borden's and Ms. Cummings' attendances at the apartment. Given Mrs. Coe's memory problems, I do not place a great deal of weight on diary comments generated from this source.

Yet, I also have some difficulty with Ms. Borden's evidence. In many instances I found her to be an unreliable historian even with respect to dates and times of events in her own life. She consistently changed her mind about dates and admitted to having a poor memory. For instance, she provided inconsistent evidence about the period of her part-time employment and the date of her prospective return to school. Further, her initial evidence was that her responsibilities with Mrs. Coe have remained basically unchanged to the present. On cross-examination she admitted that during the first several months of her service with Mrs. Coe, while working at a part-time job, her tasks with Mrs. Coe were not as onerous.

In assessing Ms. Borden's credibility, I also considered that she is not a disinterested person. She has an interest in care benefits being reinstated to Mrs. Coe since she is a likely beneficiary of these benefits. It is reasonable to infer, therefore, that Ms. Borden's evidence could be somewhat coloured by this interest.

Due to conflicts in the evidence, I cannot determine the exact extent to which Mrs. Coe has been able to prepare her own meals, do dishes and her laundry. I think it reasonable to conclude, however, that Mrs. Coe's ability to accomplish these tasks has varied at different times. The evidence seems to show that, while her physical condition might have improved somewhat during the two years since the accident, Mrs. Coe's depression seems to have deepened as the prospect of her husband's release from the hospital has grown dimmer. Her psychological problem has become more prominent over time. Mrs. Webb made this observation after her visit with Mrs. Coe in the fall of 1995. Ms. Cummings and Ms. Borden testified that throughout the entire post-accident period, Mrs. Coe has had "good days" and "bad days." Under these circumstances, Mrs. Coe is not likely to have ever been able to consistently prepare meals and do dishes or her laundry. I conclude, therefore, that her capacity for these activities is likely to have varied from infrequent to non-existent.

Conclusion on Section 13 Entitlement:

While I am persuaded that Mrs. Coe was not "totally disabled" after the accident, I am convinced that she was substantially unable to accomplish her pre-accident duties. The Insurer accepts Mrs. Coe’s inability to perform the majority of her household tasks. There is no dispute about Mrs. Coe’s ability with respect to her personal hygiene; there is no evidence to contradict testimony about her inability to go to church and to read the Bible. The fact that she might have had an inconsistent ability to do laundry, the dishes and prepare light meals for a period after the accident does not preclude a finding that she is substantially disabled from performing her essential tasks.

I, therefore, conclude that Mrs. Coe meets the disability requirements of section 13 of the Schedule and is entitled to weekly income benefits from August 11, 1994 to the present.

Entitlement to Care Benefits

Mrs. Coe also claims entitlement to care benefits under section 7(1)(b) of the Schedule. This provision states:

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 caregiver 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;

The statutory accident benefits scheme provides for the reasonable cost of professional caregiver services for a person injured in a car accident. As noted earlier, Mrs. Webb formally assisted Mrs. Coe from about September 1993 to August 1994 but continued to visit and assist informally until April 1995. Ms. Borden took over home care duties in August 1994 and continues these services today.

According to Mrs. Webb, after her services were terminated, she continued to assist Mrs. Coe with eye treatment, making some meals, taking out the garbage and picking up a newspaper and checking in on Mrs. Coe throughout the day to ensure she was all right.

In addition to the other tasks mentioned earlier, Ms. Borden claimed that she administers medications and eye treatment for Mrs. Coe three times daily, reads her mail and takes her to doctors' appointments. She checks in on Mrs. Coe throughout the day to ensure her well being. Ms. Borden's intermittent daily visits consist of her arriving at Mrs. Coe's around 9:00 a.m. each morning, remaining for a few hours, returning at lunchtime for a few hours, and returning around dinner time and remaining until around 12:30 a.m. to get Mrs. Coe into bed. Ms. Borden makes daily reports of Mrs. Coe's progress to Ms. Cummings. Ms. Cummings and a fellow student nurse relieve Ms. Borden when she requires a break.

The evidence clearly shows that Mrs. Coe’s claim for the daily assistance of a caregiver is reasonable in the circumstances of her life. There is no evidence before me that convinces me otherwise. The evidence presented by both Mrs. Coe’s and the Insurer’s witnesses satisfies me that Mrs. Coe requires a caregiver to ensure that she arises from bed in the morning, to administer her medications and treat her eyes as prescribed, to assist with meal preparation and dishes, to do laundry, grocery shopping, to take her to doctors appointments, to read her mail and the Bible to her and to ensure that she gets to bed in the evening. While it does not seem that Mrs. Coe requires a caregiver for an entire day or under a live-in arrangement, the evidence suggests, and I accept, that she needs a caregiver intermittently throughout the day to provide assistance and to check in on her.

Ms. Borden has been providing this service for Mrs. Coe for almost a year-and-a-half. Mrs. Coe’s daughter, Ms. Cummings, testified that Ms. Borden’s services are indispensable to Mrs. Coe. Ms. Cummings and Ms. Borden concur that the $250 per week rate is reasonable.

The Insurer submitted that, if it were found that Mrs. Coe required caregiver services, the $250 weekly rate is not reasonable. However, the Insurer provided no counter-evidence to establish what a reasonable rate might be or what services might reasonably be provided to Mrs. Coe.

Therefore, I accept that the $250 weekly rate for caregiver services is reasonable.

The Insurer also submitted that Ms. Borden is not a "professional caregiver" as required under section 7 of the Schedule. However, I do not accept this submission.

I find that Ms. Borden qualifies as a professional caregiver for the purposes of the legislation. Ms. Borden was studying to be a nurse when she undertook the care of Mrs. Coe. She has not completed her nursing course, although she has stated that she intends to do so in the future. I do not find that to meet the requirements of a professional caregiver, one must be an accredited nurse. However, the fact that Ms. Borden completed part of a nursing program certainly enhances her qualifications as a professional caregiver. Moreover, as part of her program, Ms. Borden completed a six-month clinical placement at a nursing home. There she provided nursing care, grooming, assisted with feeding and helped bathe the elderly residents. Ms. Borden's nursing training has enabled her to administer Mrs. Coe's medication and treatment with instructions from Mrs. Coe's doctors. Moreover, I find that Mrs. Coe credibly expressed an interest in the profession of providing care for the elderly.

For this reason, I find that Mrs. Coe's claim for the caregiving assistance is reasonable. I find the $250 per week rate paid to Ms. Borden for her services is a reasonable arrangement.

Special Award

Mrs. Coe also claims a special award under section 282(10) of the Insurance Act on the basis that the Insurer unreasonably withheld accident benefits. She received weekly benefits and caregiver benefits from June 26, 1993, which were terminated on August 10, 1994 and September 23, 1994 respectively. Section 282(10) of the Insurance Act provides:

282(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Mrs. Coe claims that the Insurer terminated both her weekly benefits and her care benefits without a sound basis for the termination. The Insurer relied on Dr. Langer's report dated August 10, 1994²¹ in its decision to terminate benefits.

Dr. Langer conducted a medical examination of Mrs. Coe on August 10, 1994. In making his assessment, Dr. Langer did not have available for his review background medical records from Mrs. Coe's doctors.

In his report, Dr. Langer acknowledged that Mrs. Coe sustained multiple injuries in the accident, including a head injury. His examination of Mrs. Coe revealed a mal-union of her pelvic fracture, a displacement of her iliac spine, a right eye malfunctional and an appearance of frailty and depression. He recommended that she use a cane due to her unsteady gait.

Dr. Langer stated that Mrs. Coe "is completely comfortable with regard to her musculoskeletal system, when at rest," and went on to conclude that "[f]rom a musculoskeletal point of view ... she is physically fit..."

In assessing Mrs. Coe's disability Dr. Langer relied on the written report of an occupational therapist dated July 18, 1994.²² The occupational therapist was retained by the Insurer to assess Mrs. Coe's functional ability to perform her daily tasks. The occupational therapist conducted a home interview with Mrs. Coe and based her assessment of Mrs. Coe's disability on Mrs. Coe's own self-report of her ability. The occupational therapist did not observe any practical attempts by Mrs. Coe to perform the tasks she claimed she could do.

I do not find that Dr. Langer's report or that of the occupational therapist provide a reasonable basis for the Insurer to terminate Mrs. Coe's benefits.

Dr. Langer acknowledged Mrs. Coe's many physical problems but his conclusion as to Mrs. Coe's physical status was unclear. He also indicated that Mrs. Coe appeared depressed. Yet he made no direct findings about her ability to perform her essential tasks. However, he did recommend that she retain the assistance of a housekeeper.

Because the occupational therapist's report was not based on direct observation of Mrs. Coe's abilities, but rather on the Mrs. Coe's self-report, I do not place much weight on this assessment. The reliability of Mrs. Coe's account of her ability is tainted both by her faulty memory and her tendency to deny the extent of her dependence on others.

The Insurer possessed a number of other sources of information from which it could have more realistically assessed the extent of Mrs. Coe's disability. A rehabilitation service retained by the Insurer was involved in Mrs. Coe's rehabilitation from just after the accident until about July 1994.²³ Throughout these reports account is made of the many difficulties Mrs. Coe was experiencing with rehabilitation. The rehabilitation service recommended that the occupational therapy assessment be undertaken in July 1994 with the intention that the occupational therapist make recommendations and design an individualized program to promote recovery to the pre-accident level.²⁴ However, there has apparently been no follow-up recovery program undertaken after the original occupational therapy assessment. The Insurer terminated benefits without establishing a follow-up program.

The rehabilitation service also acknowledged Mrs. Coe's psychological problems resulting from the loss of her husband in a letter dated December 20, 1993.²⁵ In a consultation with the rehabilitation service in January 1994,²⁶ Dr. Saul opined that Mrs. Coe would benefit from psychological counselling to deal with the loss of her husband and her independence. Dr. Saul referred Mrs. Coe to see a psychologist whom she did not see until May 8, 1985. As noted earlier, Dr. Gelber diagnosed major depression and prescribed an anti-depressant. There has been no psychological follow-up. The Insurer terminated benefits before Mrs. Coe even saw a psychologist.

On the whole I find, based on the medical and rehabilitation information in the Insurer's possession at the time of benefit termination and thereafter, that benefits were unreasonably withheld by the Insurer. It would have been reasonable for the Insurer to await occupational therapy and psychological follow-ups before deciding whether to terminate benefits.

I, therefore, exercise my authority under the Insurance Act to impose on the Insurer a special lump sum award of $2,000. Considering the evidence available to the Insurer at the time of benefit termination, there was no sound basis for the Insurer to have terminated Mrs. Coe's benefits. With respect to weekly benefits, the Insurer had not established before termination that Mrs. Coe was substantially disabled from performing her essential tasks. It had not established the unreasonableness of Mrs. Coe's claim for caregiver services.

Expenses and Interest

Mrs. Coe seeks an award of her expenses incurred in the arbitration and interest on overdue benefit amounts.

Since Mrs. Coe has succeeded in her application, I exercise my discretion to award her expenses incurred in the arbitration and interest on overdue benefit amounts. If the parties cannot agree on the total amount of expenses, they may apply to the Commission for an assessment of the expenses.

Order:

1. The Insurer shall pay to Mrs. Coe ongoing weekly benefits under section 13(1) of the Schedule from August 11, 1994 to the present.

2. The Insurer shall pay to Mrs. Coe ongoing care benefits under section 7(1)(a) of the Schedule at the amount of $250 per week from September 24, 1994 to the present.

3. The Insurer shall pay to Mrs. Coe under section 282(10) of the Insurance Act a special award of $2,000.

Mrs. Coe is entitled to interest on any amounts owing and to her expenses of the arbitration.

February 13, 1996

Beth Allen Arbitrator

Date

Schedule "A"

Exhibit 1

From Applicant’s document brief:

Tab 5

Note from Dr. Saul dated November 25, 1994

Tab 7

Report by Dr. Martin-Smith dated September 28, 1995

Tab 8

Dr. Sheppard's clinical notes and records

Tab 10

Report by Dr. Wulffhart dated August 29, 1995

Tab 14

Dr. Sharma’s clinical notes and records

Tab 22

Clinical notes and records of Dr. Bederman

Tab 26

Report by Dr. Gelber dated May 8, 1995

Tab 32

Report by Dr. Rootman dated May 8, 1995

Tab 40

Letter from Crawford and Company dated December 7, 1993

Tab 44

Outstanding attendant care expense receipts (Sept. 24/94 - Oct. 24/95)

Tab 45

Resume of Kerrie Lynn Borden

Exhibit 2

From Insurer’s document brief:

Tab 10

Letter from Crawford and Company dated December 20, 1993

Tab 12

Letter from Crawford and Company dated February 4, 1994

Tab 14

Letter from Crawford and Company dated Febraury 14, 1994

Tab 15

Letter from Crawford and Company dated March 11, 1994

Tab 17

Letter from Crawford and Company dated April 20, 1994

Tab 18

Letter from Crawford and Company dated April 27, 1994

Tab 19

Letter from Dr. Lee-Own dated May 11, 1994

Tab 26

Letter from Crawford and Company dated July 22, 1994

Tab 27

Letter from Dr. Langer dated August 10, 1994

Tab 28

Letter from Crawford and Company dated August 19, 1994

Tab 29

Letter from Crawford and Company dated August 23, 1994

Tab 30

Letter from Crawford and Company dated September 6, 1994

Tab 31

Letter from Crawford and Company dated September 23, 1994

Tab 32

Note from Dr. Saul dated November 25, 1994

Tab 33

Medical Report of Dr. Saul dated January 27, 1995

Tab 34

Consultation letter from Dr. Gelber dated May 8, 1995

Tab 35

Medical Report of Dr. Martin-Smith dated September 28, 1995

Tab 36

Clinical notes and records for Mrs. Coe of Dr. Saul

Tab 37

Clinical notes and records for Mrs. Coe of Dr. Steinman

Tab 43

Ambulance Call Reports dated June 19, 1993 and July 14, 1993; Dufferin Area Hospital Records June 19, 1993 - July 14, 1993

Unbound exhibits:

Exhibit 3

Six photographs of Mrs. Coe and her husband, December 1992 and January 1993

Exhibit 4

Receipts for care expenses (Oct.7/93- Aug. 12/94)

Exhibit 5

Receipts for expenses (Aug. 20- Oct. 24/94)

Exhibit 6

Receipts for Homestead Maid housekeeping expenses

Exhibit 7

X-ray report Dufferin-Caledon Health Care Corp. dated June 19, 1993

Exhibit 8

Video surveillance (one tape)

Exhibit 9

Clinical notes and records for Mrs. Coe of Dr. Gardner-Maher

Exhibit 10

Set of documents from Mrs. Webb (including diary notes)

Exhibit 11

Curriculum vitae of Dr. Saul

Exhibit 12

Letter from Ms. Chagpar to Dr. Saul dated November 13, 1995

Exhibit 13

Occupational Therapy Assessment dated July 18, 1994

Exhibit 14

Medical Report by Dr. Saul dated November 17, 1995

Exhibit 15

Clinical notes and records of Dr. Saul for Ms. Cummings and Mark Cummings

Exhibit 16

Copies of three cheques payable to Mrs. Webb

Exhibit 17

Statement of Defence and Counterclaim by Ms. Cummings

Exhibit 18

Letter from Mrs. Coe to whom it may concern dated September 7, 1994

Exhibit 19

Letter from Ms. Borden dated December 1, 1995

Exhibit 20

Letter from Ms. Chagpar, dated November 26, 1995.

Exhibit 21

Application for Comprehensive Medical Protection Plan for CUMBA.

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.
2. 2Exhibit 20, letter from Ms. Chagpar dated November 26, 1995.
3. 3Edward J. Opatowski and Wawanesa Mutual Insurance, September 22, 1992, OIC File No. A-000381 at page 12.
4. 4Mrs. Coe testified that she married her husband Edward in 1927.
5. 5Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064, pages 22 and 23.
6. 6Edgar Cowie and the Non-marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File A-001159, page 15 (under appeal).
7. 7Exhibit 2, Tab 43, ambulance call report dated June 19, 1993.
8. 8Exhibit 2, Tab 43, Dufferin Area Hospital Report, page 5.
9. 9Exhibit 2, Tab 43, Dufferin Area Hospital Report, page 44.
10. 10Exhibit 2, tab 40, notes and records of ophthalmologist, Dr. Lee-Own; Dr. Langer's notes and records dated August 10, 1994; Dr. Goldberg's notes and records dated April 25, 1995; Dr. Rootman's medical report dated May 8, 1995.
11. 11Exhibit 2, tab 19, letter from Dr. Lee-Own dated May 11, 1994.
12. 12Exhibit 2, tab 34, letter from Dr. Gelber dated May 8, 1995.
13. 13Exhibit 7.
14. 14The Dufferin Area Hospital admission records dated June 19, 1993, (the date of the accident), at exhibit 2, tab 43, page 20 record lacerations to both eyelids and bilateral cataracts.
15. 15Exhibit 2, tab 37, an entry in Dr. Steinman's notes and records dated August 17, 1992.
16. 16John Beenen and Continental Insurance Company of Canada, December 10, 1992, OIC File No. A-001239, page 16.
17. 17Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894, page 18.
18. 18Exhibit 2, tab 15, letter from Crawford &Company Healthcare Management, dated March 11, 1994, page 2.
19. 19Exhibit 11, Statement of Defence and Counterclaim, Provincial Court Civil Division (Webb v. Cummings).
20. 20Exhibit 10, copies of pages from Mrs. Webb's diary.
21. 21Exhibit 2, tab 27, medical report from Dr. Langer dated August 10, 1994.
22. 22Exhibit 13, Occupational Therapy Report by Susan Track dated July 18, 1994.
23. 23Exhibit 2, tabs 2, 4, 5, 7, 8-15, 17, 18-26, 28-32.
24. 24Exhibit 2, tab 20, letter from Crawford & Company Healthcare Management, page 1.
25. 25Exhibit 2, tab 10, letter from Crawford & Company Healthcare Management, page 2.
26. 26Exhibit 2, tab 12, letter from Crawford & Company Healthcare Management, dated February 4, 1994.