Neutral Citation: 1997 ONICDRG 37
OIC A96-000898
ONTARIO INSURANCE COMMISSION
BETWEEN:
RITA TZATZKIN
Applicant
and
LIBERTY MUTUAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Rita Tzatzkin, was injured in a motor vehicle accident on October 6, 1995. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule1 Mrs. Tzatzkin claims entitlement to the services of a case manager as provided under section 40 of the Schedule. She also disputes the amount of attendant care benefits to which she is entitled under section 47. The parties were unable to resolve their disputes through mediation and Ms. Tzatzkin applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Tzatzkin entitled to a case manager as provided under section 40 of the Schedule?
Is Mrs. Tzatzkin entitled under section 47 of the Schedule to the rate of attendant care benefits she claims from January 1, 1996 onwards?
Mrs. Tzatzkin also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
Mrs. Tzatzkin is entitled to the services of a case manager.
Mrs. Tzatzkin is entitled to attendant care benefits at the rate of $10 per hour, for four hours per day and five days per week from January 1, 1996 onwards.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on January 28 and 29, 1997, before me, Beth Allen, Arbitrator.
Present at the Hearing:
Applicant:
Rita Tzatzkin
Ms. Tzatzkin's
Craig Brown
Representative:
Barrister and Solicitor
Insurer s
George Frank
Representative:
Barrister and Solicitor
Witnesses:
For the Applicant:
Rita Tzatzkin
Marta Bazik
Noreen Hayashi
Cathy Martin
For the Insurer:
Cindy Chu
Evidence and Findings:
Overview of Mrs. Tzatzkin's Claims:
Mrs. Tzatzkin claims benefits for services of a rehabilitation case manager. She claims that due to the multiplicity of medical practitioners and assessment and rehabilitation facilities involved in her case, a case manager should continue to be involved to manage and co-ordinate her rehabilitation. Liberty Mutual retained Ms. Carol Stants-Heron of the Accident Management Group ("AMG") who managed the case from January 1996 until about November 1996, terminating the services at this point. Mrs. Tzatzkin also claims benefits at the rate of $10 per hour (four hours per day, five days per week) for attendant care services provided by her daughter from January 1, 1996 onwards. Liberty Mutual made one payment for attendant care services in March 1996 and declined to pay any further amounts.
Background:
On October 6, 1995 Rita Tzatzkin, then age 63, was a passenger on a Toronto Transit Commission bus when it stopped suddenly causing her to fall from her seat. She testified that she next recalled lying on the floor of the bus with police and ambulance attendants hovering over her. Mrs. Tzatzkin sustained injuries to her head, lower back and to her right shoulder, arm, elbow, wrist, hand and knee. Her most disabling injury was to her right shoulder which was dislocated by the fall, causing significant dysfunction in her right shoulder and arm. Medical practitioners have diagnosed a frozen shoulder. She has experienced severe pain in her shoulder and arm and continues to take pain medication for relief. Mrs. Tzatzkin and her daughter, Marta Bazik, testified that Mrs. Tzatzkin was a very active and independent person before the accident. She enjoyed cooking large meals, entertaining and socializing. She prided herself on maintaining her home in immaculate condition.
Need for a Rehabilitation Case Manager:
Mrs. Tzatzkin claims that she requires the services of a case manager to coordinate her rehabilitation treatment. She relies on Dr. Bart's opinion in his note of December 2, 1995 which she submitted into evidence, where he supports her need for a case manager. Liberty Mutual argues that Mrs. Tzatzkin does not need the services of a case manager since, during the months before it retained a case manager, Mrs. Tzatzkin's family doctor adequately managed her rehabilitation and, in Liberty Mutual's opinion, might continue to assume this function.
The Schedule provides for the services of a rehabilitation case manager under certain circumstances. Section 40 (1)(a) and (b) of the Schedule set out the general grounds for entitlement to rehabilitation benefits. These provisions state as follows:
40.-(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,
(a) to reduce or eliminate the effects of any disability resulting from the impairment; and
(b) to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society.
Section 40 (5)(c) sets out the basis of entitlement to the services of a case manager:
40.-(5) The payments received under this section include payments of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in clause (1) (a) or (b) for,
(c) services provided by a case manager related to the co-ordination of medical, rehabilitation and attendant care services for the insured person;
Since the accident Mrs. Tzatzkin has undergone fairly extensive treatment and assessment of her disability. Before Liberty Mutual involved a case manager with Mrs. Tzatzkin's file, she had received treatment from her family doctor, Dr. Bart. Dr. Bart had referred her for physiotherapy treatment as well as for treatment and assessment by the orthopaedic specialists, Dr. Indech and Dr. Welsh. Liberty Mutual had also retained Genex Services of Canada which, through occupational therapist Ms. Cindy Chu, conducted an in-home occupational therapy assessment and follow-up on December 20, 1995 and January 2, 1996. Liberty Mutual submitted into evidence an occupational therapy assessment report by Ms. Chu dated December 28, 1995.
Subsequently, Liberty Mutual retained the Accident Management Group (AMG) which managed Mrs. Tzatzkin's rehabilitation program for the ten-month period from January 1996 to November 1996. Liberty Mutual submitted into evidence several reports by Ms. Stants-Heron, a case manager with AMG. During this period Ms. Stants-Heron co-ordinated Mrs. Tzatzkin's treatment with a number of health care practitioners and facilities. Mrs. Tzatzkin continued to see her family doctor and to be treated and assessed by several orthopaedic specialists at the request of both Liberty Mutual and her doctors. On May 12, 1996 Ms. Noreen Hayashi conducted an in-home attendant care needs assessment (an attendant care DAC2). Mrs. Tzatzkin continued her physiotherapy until about December 1996.Throughout AMG's involvement with the file, Ms. Stants-Heron communicated with Mrs. Tzatzkin and Liberty Mutual as well as with the various health care and service providers, including Mrs. Tzatzkin's daughter, Marta, who has provided attendant care services for her mother since the accident.
After the termination of AMG's services, Mrs.Tzatzkin continued to see her family doctor and to receive physiotherapy for about one month thereafter. On December 17 and 20, 1996 she underwent a multidisciplinary medical rehabilitation DAC conducted by Assessment Works of North York. Mrs. Tzatzkin submitted into evidence a report of this assessment dated January 6, 1997. This multidisciplinary assessment involved orthopaedic, occupational and physical therapy assessments, as well as neurological and psychological assessments. Further, on January 17, 1997, at the request of Liberty Mutual, Ms. Patricia Fleet of Sibley & Associates Inc. ("Sibley") conducted an in-home key functional assessment. Mrs. Tzatzkin also submitted into evidence Sibley's report dated January 20, 1997.
The multidisciplinary DAC assessment concluded that Mrs. Tzatzkin was disabled from returning to homemaking because her abilities did not match the task requirements of a homemaker.The assessment team determined that Mrs. Tzatzkin's physiotherapy treatment had reached a plateau and recommended that Mrs. Tzatzkin continue her active physiotherapy program, three times weekly for three further weeks and participate in a six-month aqua therapy program.
The key functional assessment conducted by Sibley concluded that the assessment was a valid representation of Mrs. Tzatzkin's current physical abilities. Sibley recommended that five to six bi-weekly follow-up occupational therapy sessions be conducted with a view to assisting Mrs. Tzatzkin to reintegrate into her pre-accident activities. It also recommended that a professional agency be employed to provide attendant care services pending her gradual return to her pre-accident homemaking tasks.
Section 40 of the Schedule requires that an applicant's claim for the services of a rehabilitation case manager be reasonable and made in respect of injuries sustained in the accident. Under this provision rehabilitation benefits are generally payable to reduce the effects of the disability and to facilitate the applicant's reintegration into his or her family, the labour market and society. Section 43 provides that the insurer may require an applicant claiming a section 40 expense to furnish a certificate stating that the expense is reasonable and necessary for the applicant's rehabilitation.
There is no dispute that Mrs. Tzatzkin sustained a debilitating right shoulder injury in the accident. She was a right hand dominant homemaker before the accident. Mrs. Tzatzkin's and her daughter's oral evidence, as well as the conclusions of the recent medical rehabilitation DAC and key functional assessment, reveal that Mrs. Tzatzkin continues to be impaired by her disability and consequently has not returned to her normal household, family and social activities. The question, however, is whether the services of a case manager are reasonably necessary for Mrs. Tzatzkin's rehabilitation.
As noted earlier, Mrs. Tzatzkin submitted into evidence a certificate dated December 12, 1995 from her family doctor indicating her need for a case manager. This certificate was prepared two months after the accident. One month later, in January 1996, Liberty Mutual retained AMG until about November 1996. Mrs. Tzatzkin claims that the services of a case manager were prematurely terminated since she still requires co-ordination of her rehabilitation program.
I agree with Mrs. Tzatzkin's view on this matter. The medical rehabilitation DAC and key functional assessment clearly substantiate Mrs. Tzatzkin's need for further assessment, treatment and home support before she can reach the goal of reintegration into her pre-accident life. In particular, the assessments recommend a continuation of Mrs. Tzatzkin's rehabilitation program in three areas - occupational therapy assessment, follow-up and evaluation, a physiotherapy program and attendant care assistance. I accept that Mrs. Tzatzkin's circumstances reasonably require the services of a case manager to co-ordinate communications among herself, her family doctor, Liberty Mutual and the service providers and to monitor and re-evaluate Mrs. Tzatzkin's rehabilitation progress.
Mrs. Tzatzkin argues that she is entitled to her choice of a case manager. She relied on Commission arbitration cases which have held that the insured and his or her doctors may reasonably choose the treatment or rehabilitation facility or health care practitioner3 to be involved in the insured's rehabilitation. She did not suggest a preferred service provider. However, while Mrs. Tzatzkin testified that she was not aware of who retained the case management services of AMG, she indicated that Ms. Stants-Heron set up rehabilitation plans and "helped [her] a lot". It may very well be that in the interests of continuity, and in light of Mrs. Tzatzkin's seeming approval of AMG, AMG might be the service provider of choice. If this is not the case, I agree with the Commission decisions which have held that, once the need is established, an applicant is entitled to his or her choice of the reasonable services of a rehabilitation case manager.
Extent of Attendant Care Services Required and Benefit Amount:
Liberty Mutual does not contest Mrs. Tzatzkin's claim for entitlement to attendant care services. The dispute centres on the extent of the attendant care services required and the benefit rate being claimed. Mrs.Tzatzkin claims entitlement to the attendant care services of her daughter for four hours per day, five days per week at an hourly rate of $10. Liberty Mutual submits that Mrs. Tzatzkin does not require the extent of attendant care services she claims.
Mrs. Tzatzkin and her daughter Marta testified about Mrs. Tzatzkin's need for assistance with her daily activities. Their evidence is consistent with the medical evidence that Mrs. Tzatzkin's right shoulder and arm impairment is the principal cause of her physical dysfunction. Mrs. Tzatzkin and Marta testified that Marta usually arrives at Mrs. Tzatzkin's apartment around 10:00 a.m., Monday through Friday and assists Mrs. Tzatzkin with a number of tasks for four hours each day. Marta helps Mrs. Tzatzkin: to wash her back in the shower; with zippers and shoe laces; to wash, dry and style her hair when needed; to apply make-up; to daily air the bedding and to make the bed; to do light apartment cleaning, including vacuuming, cleaning the bathroom, kitchen and washing windows; to cook lunches and dinners; to cut Mrs. Tzatzkin's food; to wash large pots and pans; to assist with laundry and ironing; to do grocery shopping by filling the grocery cart and carrying groceries; to drive Mrs. Tzatzkin to doctors' appointments; to attend to dry cleaning and banking; and to take Mrs. Tzatzkin for hair cuts, manicures and pedicures.
According to Mrs. Tzatzkin's and Marta's evidence, many of the identified tasks need not be done on a daily basis. For instance, Marta prepares food for meals every other day and apportions it for her mother to heat in the microwave. Marta assists Mrs. Tzatzkin with laundry, ironing, grocery shopping, attending doctors' appointments and running errands on alternating days. Hair cuts, manicures and pedicures are monthly activities.
Mrs. Tzatzkin admits that she can accomplish some tasks herself, like showering, but requires supervision due to the potential danger to her if she is left alone. She can use her left hand to do some aspects of tasks like laundry, hair care, dressing, but requires assistance to complete them. Mrs. Tzatzkin indicated that she can prepare small breakfasts for herself and do some dusting. Mrs. Tzatzkin and Marta testified that around May or June 1996 her condition improved such that she has become less dependent on Marta for assistant than she was in January 1996. The evidence suggests that Mrs. Tzatzkin has required four hours of assistance, five days per week since May or June.
As noted earlier, Ms. Chu conducted an in-home assessment and follow-up on December 20, 1995 and January 2, 1996. She testified on behalf of Liberty Mutual and concluded that Mrs. Tzatzkin's attendant care needs were not as extensive as Mrs. Tzatzkin claims. However, Ms. Chu's evidence suffered from a number of shortcomings. Ms. Chu had, only months before Mrs. Tzatzkin's assessment, attained her qualifications as an occupational therapist. Ms. Chu saw Mrs. Tzatzkin only twice, early on in her rehabilitation process. She admitted that before her assessment, she did not review any medical documentation of Mrs. Tzatzkin's disability and gained her only information about her condition from Mrs. Tzatzkin herself and her own observations. Mrs. Tzatzkin complained in her testimony about Ms. Chu's unprofessional conduct and indicated that many of her recommendations were not helpful. This criticism was borne out by Ms. Chu's testimony. She presented as rather immature and very defensive and, as such, not a very credible witness.
Ms. Hayashi, an occupational therapist with 17 years' experience, conducted an in-home attendant care needs DAC on May 12, 1996. She admitted that the reliability of her findings is restricted to an assessment of Mrs. Tzatzkin's condition on May 12, 1996. Ms. Hayashi indicated that during her assessment, she did not require Mrs. Tzatzkin to demonstrate her facility with her daily activities. She relied on Mrs. Tzatzkin's verbal report. On the basis of this she concluded that Mrs. Tzatzkin required five hours of attendant care, five times per week. She estimated that a reasonable fee for attendant care services would be between $13 and $16 per hour. I find that the more recent assessments of Mrs. Tzatzkin's abilities also substantiate her claim for attendant care services.
The medical rehabilitation DAC assessment, conducted by Assessment Works of North York on December 17, 1996 revealed that Mrs. Tzatzkin continued to suffer considerable physical restrictions in regard to her daily activities. This assessment specifically concluded that she had limited ability to lift, to carry, to crouch, to kneel, to do elevated work, to reach, to squat, to walk and to stair-climb. It further concluded that she could manage light housework activities like dusting and left arm carrying of up to 8 pounds.
The key functional assessment conducted by Sibley on January 17, 1997 identified twelve pre-accident activities with which Mrs. Tzatzkin requires assistance. This list generally accords with the activities identified by Mrs. Tzatzkin in her claim. Sibley concluded that with an occupational therapist-supervised program focussing on proper body mechanics, energy conservation and work simplification techniques, Mrs. Tzatzkin could return to her pre-accident daily activities in ten to twelve weeks.
I find that Mrs. Tzatzkin is entitled to attendant care services as claimed. In coming to this decision, I relied to a large extent on Mrs. Tzatzkin's and Marta's evidence, strengthened as it was by the findings of both the medical rehabilitation DAC and Sibley's key functional assessment. Mrs. Tzatzkin and her daughter presented as credible witnesses who, without embellishment, described Mrs. Tzatzkin's circumstances. Further, despite the restricted scope of Ms. Hayashi's attendant care assessment, it did, in a limited way, support Mrs. Tzatzkin's position. However, for reasons outlined above, I place little or no weight on the evidence of the occupational therapist, Ms. Chu.
Mrs. Tzatzkin wishes to continue with the services of her daughter Marta. Marta does not possess the qualifications of a professional caregiver. However, Mrs. Tzatzkin argues that she prefers her daughter who is of common language and cultural background, who for this reason can assist with cooking and housekeeping activities to Mrs. Tzatzkin's satisfaction. On the other hand, Liberty Mutual argues in accordance with Sibley's recommendation, that attendant care services ought to be provided by a professional agency.
The Schedule in section 47 (2) permits an aide or attendant to be "any person who is capable of providing the services, including a family member of the insured person, even if the aide or attendant does not possess any special qualifications". I find Mrs. Tzatzkin's request to continue with Marta's services reasonable, since in addition to their shared cultural background, Mrs. Tzatzkin may benefit from the continuity of Marta's service.
I also find reasonable Sibley's recommendations for further physiotherapy and hands-on involvement of an occupational therapist in Mrs. Tzatzkin's case. Sibley's recommendation for time-limited physiotherapy and occupational therapy programs, the former directed toward strengthening and expanding the use of her right arm, and the latter towards promoting simplification of tasks, will hopefully inspire Mrs. Tzatzkin to become more independent in the near future.
Conclusion:
In light of the extent of Mrs. Tzatzkin's current impairment and her need for rehabilitation, I conclude that her claim for the services of a case manager and attendant care for four hours daily, five days weekly at $10 per hour, is reasonable.
Mrs. Tzatzkin submitted an account for attendant care benefits owed as of the hearing date, inclusive of interest. I remain seized of this matter in the event that there is a dispute over this calculation.
Expenses:
In view of my decision, I exercise my discretion under section 282 (10) of the Insurance Act to allow Mrs. Tzatzkin her expenses incurred in respect of the arbitration.
Order:
Liberty Mutual shall pay Mrs. Tzatzkin benefits for the services of a rehabilitation case manager.
Liberty Mutual shall pay Mrs. Tzatzkin benefits at the rate of $10 per hour, for four hours per day, five days per week, for the attendant care services of her daughter from January 1996 onwards.
Liberty Mutual shall pay the expenses Mrs. Tzatzkin incurred in respect of the arbitration.
February 28, 1997
Beth Allen
Arbitrator
Date
Schedule "A"
*Consolidated Brief of Productions (23 tabs)
Tab 1
Medical note of Dr. John Bart dated December 12, 1995 (exhibit 5(a))
Tab 2
Letter from Dr. John Bart dated January 8, 1996 (exhibit 7)
Tab 3
Health Practitioner's Certificate dated November 11, 1995
Tab 4
Letter from Dr. Michael Indech dated November 21, 1995
Tab 5
Letter from Michael Indech dated December 19, 1995
Tab 6
Letter from Michael Indech dated March 27, 1996
Tab 7
Letter from Michael Indech dated July 2, 1996
Tab 8
Letter from Michael Indech dated July 30, 1996
Tab 9
Letter from Michael Indech dated August 23, 1996
Tab 10
Letter from Dr. Fred Langer dated May 8, 1996 (exhibit 5(b))
Tab 11
letter from Dr. Robin R. Richards dated October 4, 1996
Tab 12
Letter from Dr. Peter Welsh dated November 23, 1995
Tab 13
Letter from Dr. Peter Welsh dated June 21, 1996
Tab 14
Medical and Rehabilitation Assessment Report dated January 6, 1997 (exhibit 6)
Tab 15
The Accident Management Group Inc. Report dated January 8, 1996
Tab 16
Assessment of Attendant Care Needs (Form 1) by Noreen Hayashi dated May 12, 1996 (exhibit 1)
Tab 17
Working notes from home attendant care assessment, May 12, 1996
Tab 18
Curriculum vitae of Noreen Hayashi
Tab 19
In-Home Occupational Therapy Assessment by Cindy Chu of Genex Services of Canada Ltd, dated December 28, 1995 (exhibit 5(c))
Tab 20
Curriculum vitae of Cindy Chu
Tab 21
Letter from Sibley & Associates dated January 20, 1997
Tab 22
Home-based Key Functional Assessment by Sibley & Associates Inc. dated January 20, 1997
Tab 23
Invoice of outstanding attendant care benefits dated January 27, 1997
- During the hearing some exhibits were marked as such, as indicated in Schedule "A". After the hearing the parties prepared a Consolidated Brief of Productions, the contents of which I have listed above.
Footnotes
- The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
- "DAC" refers to "designated assessment centre" which is an assessment centre designated by the Commissioner of Insurance pursuant to section 38 of the Schedule.
- See for instance Ruth Roberts and State Farm Mutual Insurance Company, OIC File No. A-008778, January 26, 1995; Michael Lynch and The Halifax Insurance Company, OIC File No. A-004781, December 20, 1994; Anabela T. Hounsell and Zurich Insurance Company, OIC file No. A-003042, April 15, 1994.