Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 1998 ONICDRG 21, 1998 ONFSCDRS 21

Appeal P98-00003

Appellant

and

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

A. Wayne Edwards (for Liberty Mutual)

Robert W. Becker (for Shannon Harper)

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

The appeal is allowed in part and the arbitration order, dated December 19, 1997, is amended as follows:

Paragraph 3 is amended by adding the following:

In the further alternative, Liberty Mutual Insurance Company shall pay the retail value of a four-wheel drive, automatic vehicle, similar in value to the 1988 Jeep Cherokee, plus taxes and transfer costs, less the trade-in value of the 1989 Mercury Lynx automobile.

Paragraph 6 is rescinded and the following is substituted:

The services of Ms. Joy Harwood are not payable as case management services.
Shannon Harper is entitled to her reasonable appeal expenses, payable by Liberty Mutual Insurance Company.

August 14, 1998

David R. Draper Director's Delegate

Date

This is an appeal by Liberty Mutual Insurance Company ("Liberty Mutual") from an arbitration decision dated December 19, 1997. It claims the arbitrator erred in ordering payment of the following amounts under the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, O.Reg. 776/93 (the "SABS - 1994"):

caregiver benefits under Part IV from March 27, 1996 to November 22, 1996;
housekeeping and home maintenance expenses under section 55 of $135.00 per week from November 22, 1994, ongoing, less any payments already made;
vehicle modifications under Part VIII of both family vehicles to automatic transmission;
supplementary medical and rehabilitation expenses under Parts VII and VIII for a vacuum cleaner ($250.00), labour to install shelving ($300.00), a mixmaster ($199.99), transportation expenses ($420.00), treatment or products provided before March 26, 1996 ($351.87) and massage therapy ($6,760.00);
case manager services of Ms. Joy Harwood under Part VIII to May 31, 1996 ($2,976.36);
special award under section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mrs. Harper was injured in an automobile accident on November 22, 1994. At the time, she was living with her husband and two young children in an isolated setting outside of Apsley, Ontario.

The arbitrator found that Mrs. Harper suffered multiple impairments, including a flexion-extension injury to her neck resulting in pain in her neck and right shoulder, numbness and weakness in her right arm and hand, and headaches. These symptoms became chronic and she experienced depression and psychological upset.

Liberty Mutual paid benefits, including weekly caregiver benefits under Part IV of the SABS-1994. In March 1996, sixteen months after the accident, Liberty Mutual arranged for Mrs. Harper to be examined at AssesMed in Mississauga. When Mrs. Harper did not attend the assessments, Liberty Mutual stopped paying benefits.

A. Which version of the SABS-1994 applies?

At the time of Mrs. Harper's accident, section 65 of the SABS-1994 gave insurers the right to schedule examinations ("Insurer Examinations" or "IEs") as often as reasonably necessary for the purpose of evaluating the insured person's claim for supplementary medical benefits, medical benefits, rehabilitation benefits, or attendant care benefits. Weekly benefits, including caregiver benefits, were not included in this section. However, somewhat different rules for the assessment and termination of weekly benefits were set out in section 64.

Effective December 31, 1994, sections 64 and 65 were substantially amended by Ontario Regulation 781/94. In particular, subsection 65(1) was amended to allow IEs for weekly benefits, including caregiver benefits, and the following subsection was added:

(5.1) If the insured person fails or refuses to submit to an examination under subsection (1), the insurer may withhold payment of the weekly benefits under Part II, section 15 or Part IV, V or VI until the person submits to the examination and, when the person submits to the examination, the insurer shall,

(a) resume payment of the benefits; and

(b) pay the benefits that were not paid.

Liberty Mutual relied on the 1995 amendments when it scheduled the March 1996 assessments and then suspended Mrs. Harper’s benefits for non-attendance. The arbitrator held, however, that it was not entitled to do so. In her view, the amendments were not merely procedural and, therefore, could not be applied retroactively to claims based on accidents that occurred in 1994. Her reasons are set out on page 6 of the decision, as follows:

When Mrs. Harper’s accident occurred, on November 22, 1994, the statutory accident benefits scheme of the 1994 Schedule conferred on both her and Liberty certain rights and obligations. One of Mrs. Harper’s rights related to eligibility for weekly caregiver benefits; one of Liberty’s rights was the right to terminate those benefits, on appropriate evidence, by following a prescribed course of conduct. One of Mrs. Harper’s obligations was to attend at insurer’s examinations, in certain circumstances, at certain times. I find the power to require an insured person to attend for a medical examination and to withhold benefits where there is no compliance is substantive in nature, that is from "that part of law which creates defines and regulates rights,"¹ as distinct from being procedural in nature.

As a result, the arbitrator concluded that Liberty Mutual suspended or terminated Mrs. Harper’s benefits without legal authority.

On appeal, Liberty Mutual contends that the common law presumption against retrospective operation of legislation does not apply because the changes to section 65 were procedural, not substantive. In Liberty Mutual’s submission, the amendments did not affect the benefits to which insured persons are entitled, but only how insurers assess their claims.

In the alternative, Liberty Mutual argues that the application of the 1995 amendments is not retrospective because the examinations were not scheduled until after the new provisions were in effect. In support of this argument, it relies on the following definition from Black's Law Dictionary:

"retrospective law" - a law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights accruing, before it came into force."

Mrs. Harper submits that the arbitrator was correct in finding that the amendments affected rights that accrued at the time of the accident. In her submission, any expansion of the insurer's right to require an examination intrudes on her substantive right to privacy or bodily integrity.

I recently dealt with a similar issue in Lehman and GAN Canada Insurance Company, (FSCO P97-00064, August 10, 1998). In that case, the insurer relied on the 1995 amendments in respect of a 1994 accident. More specifically, it stopped paying income replacement benefits ("IRBs") during a dispute about Mr. Lehman's loss of earning capacity benefits ("LECBs"). In doing so, it relied on changes to section 23 of the SABS-1994, revoking the obligation to continue paying IRBs pending resolution of a dispute about LECBs and, instead, allowing the insurer to pay benefits based on the offer it made to the insured person and the assessment of the Designated Assessment Centre ("DAC").

The arbitrator agreed with Mr. Lehman that although his entitlement to LECBs did not arise until 1996, a year after the 1995 amendments came into effect, his right to the benefits provided by the SABS-1994, including interim benefits, crystallized at the time of the accident. Therefore, the insurer was obligated to continue paying IRBs until the dispute about LECBs was resolved, as required by the original version of the SABS-1994.

I allowed GAN’s appeal, concluding that the Insurance Act specifically contemplates amendments to the SABS-1994, affecting both new and ongoing claims. Further, I was not persuaded that the rules for determining LECBs, including the payment of a particular type of benefits pending resolution of a dispute, created the kind of right that vests at the time of the accident. As a result, I concluded that the amendments applied to LECB determinations even if the accident occurred in 1994.

In my view, the analysis in Lehman applies here. Liberty Mutual did not use the new provisions in section 65 of the SABS-1994 to reach into the past and affect the legal consequence of facts already in existence. It simply followed the rules for assessing Mrs. Harper’s claim that were in force at the time. The question, therefore, is not retroactive application, but whether the 1995 amendments interfered with a vested right. In my view, they did not.

The 1995 amendments did not open Mrs. Harper up to any new examinations. Although the SABS-1994 dealt with IEs under two different sections, Liberty Mutual was entitled to schedule IEs for all the benefits Mrs. Harper was claiming - caregiver benefits, housekeeping benefits and other supplementary medical and rehabilitation benefits. The changes merely moved IE’s into one section, simplifying the process for assessing claims for weekly benefits by eliminating the requirement that the insurer first require the insured person to provide a certificate from his or her health practitioner. The DAC process remained in place for weekly benefits (with some modifications), so a negative IE still could not lead directly to the termination of weekly benefits. In the circumstance, I am not persuaded that the 1995 amendments affected Mrs. Harper in any fundamental way.

For these reasons, and for the reasons set out in more detail in the Lehman decision, I conclude that Liberty Mutual was entitled to rely on the 1995 amendments to the SABS-1994 in assessing Mrs. Harper’s claims for accident benefits.

B. Did Mrs. Harper fail or refuse to submit to an examination?

The arbitrator went on to consider whether Mrs. Harper failed or refused to make herself reasonably available for an examination. This is the test for suspending benefits under both subsection 64(19) of the 1994 version of the SABS-1994 and subsection 65(5.1) of the amended version.

The arbitrator found that Mrs. Harper did not fail to attend because Liberty Mutual did not "make reasonable efforts to schedule the examination for a time that is convenient for the insured person," a requirement under both subsection 64(5) of the 1994 version of the SABS-1994 and subsection 65(2), a provision that was not affected by the 1995 amendments.

This is one of several challenges to the arbitrator's factual findings. As stated in many previous decisions, it is not my role to second-guess the arbitrator's assessment of the evidence. She had the advantage of hearing the witnesses and could evaluate the documentary evidence in light of their testimony. The question on appeal is not whether another arbitrator or I might have viewed the evidence differently, but whether the arbitrator erred in some manner sufficiently serious that the decision cannot stand.

With respect to the scheduling of the medical examinations in March 1996, there was ample, if not overwhelming, evidence to support the arbitrator’s finding that Liberty Mutual failed to make reasonable efforts to schedule the examination for a time convenient for Mrs. Harper. She was not consulted about the date, location or travel arrangements. Most important in my view, Liberty Mutual ignored the letter from Mrs. Harper’s psychologist, Dr. Telka, stating that he advised her not to attend.

At the time the examinations were scheduled, Dr. Telka was providing regular therapy to Mrs. Harper and, therefore, his warning should have been taken seriously. I do not accept Liberty Mutual's argument that Dr. Telka's letter does not say Mrs. Harper faced imminent harm if she attended the examinations. He clearly states that she was "under too much stress at this time to participate in any investigative procedures," and that participation "would be detrimental to her well-being." If there was any question, Liberty Mutual should have followed-up with Dr. Telka, which it did not do.

Liberty Mutual argues that Dr. Telka’s letter is inconsistent with his clinical notes, particularly his note that two days after he wrote the letter, Mrs. Harper went to Peterborough with her husband to play bingo. First, this cannot explain Liberty Mutual’s actions because they did not have this information until much later. Second, I agree with Mrs. Harper that Dr. Telka's opinion cannot be dismissed on the basis that she went into town with her husband for recreation. This activity simply is not equivalent to the examinations, which involved Mrs. Harper finding a way to Peterborough, taking a bus to Toronto, taking a taxi to the hotel in Mississauga, undergoing medical assessments over the next three days, and then retracing her steps home.

Liberty Mutual also relies on the report of Dr. Ralph Hull, a psychiatrist, who found no psychotic thinking or inappropriate affect. However, Dr. Hull examined Mrs. Harper in November 1995, four months earlier. While his opinion could have been discussed with Dr. Telka, it does not provide an adequate basis for ignoring the advice of the health professional currently providing therapy.

For these reasons, I accept the arbitrator’s finding that Mrs. Harper’s benefits should not have been suspended due to non-attendance at an IE.

C. Is Mrs. Harper entitled to caregiver benefits?

The arbitrator did not award Mrs. Harper additional caregiver benefits simply because Liberty Mutual terminated them without proper authority. Instead, she considered whether Mrs. Harper qualified under Part IV of the SABS-1994.

Eligibility for caregiver benefits is not based only the insured person’s ability to care for his or her dependants. For the first 104 weeks, the tests are set out in clauses i and ii of paragraph 18(1)3, as follows:

18.- (1) 3. As a result of and within two years of the accident, the insured person,

i. suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident,

ii. suffers a partial or complete inability to carry on a normal life.

If the insured person qualifies under clause 18(1)3.i based on his or her substantial inability to engage in caregiving activities, the test remains the same after 104 weeks. However, if eligibility is based on clause 18(1)3.ii, the test becomes stricter after 104 weeks. The insured person must show that he or she suffers a complete inability to carry on a normal life [s.18(4)].

Partial and complete inability to carry on a normal life are defined in sections 2 and 3 of the SABS-1994:

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Liberty Mutual stopped paying caregiver benefits on March 26, 1996, within the first 104 weeks. By the time of the arbitration hearing in September 1997, however, Mrs. Harper's claim extended beyond 104 weeks.

The arbitrator found that until November 22, 1996, the 104-week mark, Mrs. Harper suffered a substantial inability to engage in her normal pre-accident household activities and, therefore, qualified for caregiver benefits under subsection 2(c). However, the arbitrator was not convinced that her impairments were sufficient to meet the post-104 week test.

Liberty Mutual appeals the arbitrator’s order that it pay additional caregiver benefits up to November 22, 1996, plus interest. Mrs. Harper does not appeal the rejection of her claim for continuing caregiver benefits beyond that date. In her submission, both parties should accept the arbitrator's assessment of the evidence.

At page 18 of her decision, the arbitrator notes that the formal medical and psychological evidence is "meagre" from the spring of 1996 (when caregiver benefits were cancelled) until the DAC assessments in the summer of 1997. Liberty Mutual submits that in light of this finding, the arbitrator erred in concluding that Mrs. Harper met her onus.

An insured person who does not present any medical evidence relating to the period in issue runs a real risk that the claim will be denied. However, arbitrators can consider and draw reasonable inferences from medical evidence prepared before or after the disputed period. I am satisfied that is what happened here. The arbitrator particularly relied on the report of Karen A. Bowen, occupational therapist, prepared in August 1997. The report, which the arbitrator found to be " careful and thoughtful," states that Mrs. Harper needs substantial assistance with her household activities, including cleaning, shopping, food preparation and cleanup, and other miscellaneous tasks. In addition, the arbitrator heard testimony from Mrs. Harper, her husband and David Reddick, a friend and business partner, which she was entitled to consider.

Liberty Mutual also contends that the arbitrator failed to consider, or gave inadequate weight, to:

the reports of Rosemary Dracup (occupational therapist);
the lack of any reference to musculoskeletal pain in the clinical notes of Dr. Rayes (Mrs. Harper's family doctor) from January to November 22, 1996;
Mrs. Harper’s own testimony that in April 1995, she was probably doing laundry, vacuuming, cleaning floors, making her daughter’s lunch, getting her daughter ready for school and taking care of all her son's needs.

As stated in previous appeal decisions, arbitrators are not expected to address every piece of evidence in their decisions. That would be impractical. The question is whether the decision reflects a failure to deal with critical evidence. I am not persuaded that this decision reveals any such failure.

The arbitrator was presented with substantial documentary and oral evidence. She provided the parties with lengthy reasons, setting out her findings and the evidentiary basis for them. I am not persuaded that the evidence cited by Liberty Mutual is so strong that it undermines her findings, or that it had to be specifically dealt with in the written reasons. For example, Ms. Dracup reported an increase in Mrs. Harper’s activities in October 1995, but accepted that she still needed some level of homemaking assistance.

Looking at all the evidence, I find sufficient support for the arbitrator’s conclusion that Mrs. Harper’s condition essentially plateaued at a level entitling her to caregiver benefits for 104 weeks, but no longer. Therefore, I find no reason to disturb her order.

II. HOUSEKEEPING AND HOME MAINTENANCE EXPENSES

Liberty Mutual submits that the arbitrator erred in ordering it to pay housekeeping and home maintenance expenses of $135 per week from November 22, 1994, and ongoing. Like its position on caregiver benefits, Liberty Mutual contends that the medical evidence does not support the level of disability found by the arbitrator. For reasons similar to those set out above, I am satisfied there was sufficient evidence to support the arbitrator’s findings.

The arbitrator relied heavily on the report of the occupational therapist, Ms. Bowen, as she was entitled to do. However, she did not simply accept the number of hours suggested by Ms. Bowen. Instead, she carefully reviewed the evidence, concluding that Mrs. Harper required assistance for 13.5 hours per week. This figure is above the lowest amount suggested by Ms. Dracup, the other occupational therapist, but considerably lower that the 20 - 25 hours per week Mr. Reddick said he provided and somewhat lower than the 18 hours per week recommended by Ms. Bowen.

Liberty Mutual argues that the arbitrator failed to take into account the personal relationship between Mr. Reddick and Mrs. Harper. It contends that she should have found that Mr. Reddick’s involvement was that of a friend, not a housekeeper. For the following reasons, I do not agree.

Mrs. Harper consistently claimed that she needed help around the house. Although Liberty Mutual made some payments, there was no long-term agreement about housekeeping expenses. The arbitrator accepted that Mr. Reddick continued to provide assistance on the expectation that he would be paid eventually. However, she did not accept that all of the time he spent was required. I agree with Mrs. Harper that in doing so, the arbitrator adequately dealt with the personal aspect of their relationship. I also agree with Mrs. Harper that in the absence of consistent funding from Liberty Mutual, it is difficult to imagine who but a friend would travel to the isolated setting where she lives and provide assistance without any assurance of payment.

III. VEHICLE MODIFICATIONS

Liberty Mutual claims the arbitrator exceeded her jurisdiction in ordering it to pay for the modification of two vehicles. In its submission, section 42 of the SABS-1994 only contemplates one vehicle being modified:

- (1) If it is more reasonable to purchase a new vehicle to accommodate the needs of an insured person than to modify an existing vehicle, the insurer shall contribute to the cost of a new vehicle in an amount equal to the cost of the new vehicle, less the trade-in value of an existing vehicle. (emphasis added)

I do not accept Liberty Mutual’s position. As Mrs. Harper points out, the main section dealing with vehicle modifications, paragraph 40(5)(a), provides coverage for all reasonable expenses for "vehicles" and "vehicle modifications." This undermines the argument that the use of the singular " vehicle" in subsection 42(1), dealing with purchases, is meant to limit modifications to one vehicle. Further, subsection 28(j) of the Interpretation Act, R.S.O. c.I.11, which is made applicable to regulations by subsection 1(2), provides that words importing the singular number include more than one of the same thing.

The control on the cost of vehicle modifications is that the expense must be reasonable and necessary for the person's rehabilitation (s.40 and s.43). In most case, access to one vehicle is all that is needed. However, Mrs. Harper’s situation is unusual. The arbitrator found that not only did she need a vehicle with automatic transmission, four-wheel drive was required in bad weather. The arbitrator’s order reflects this by attempting to ensure that Mrs. Harper will have reasonable access to a vehicle with automatic transmission and four-wheel drive when required. In my opinion, however, there is a third alternative that would meet Mrs. Harper’s needs and might be less expensive. The insurer could purchase one four-wheel drive vehicle with automatic transmission to replace the 1989 Mercury Lynx - the two-wheel drive vehicle. The order will be amended accordingly.

IV. OTHER SUPPLEMENTARY MEDICAL AND REHABILITATION EXPENSES

Liberty Mutual claims the arbitrator erred in ordering it to pay for a vacuum cleaner ($250.00), labour to install shelving ($300.00), a mixmaster ($199.99), transportation expenses ($420.00), treatment or products provided before March 26, 1996 ($351.87) and massage therapy ($6,760.00). Its argument is similar to that made in respect of caregiver benefits and housekeeping expenses - namely, the medical evidence does not support the level of disability Mrs. Harper claims.

Neither party said much about these items. Nor will I. In my view, the decision reflects a careful consideration of Mrs. Harper's need for each item and whether the expense was reasonable. The arbitrator accepted some of Mrs. Harper's claims, but rejected others. I find no error and, therefore, the order for supplementary medical and rehabilitation expenses will remain in place.

V. CASE MANAGEMENT SERVICES

At the arbitration hearing, Mrs. Harper asked that Liberty Mutual be ordered to pay for the services of Ms. Joy Harwood. Although the parties addressed Ms. Harwood's account as arbitration expenses, the arbitrator treated it as a claim under paragraph 40(5)(c) of the SABS-1994 for "services provided by a case manager related to the co-ordination of medical, rehabilitation and attendant care services."

The arbitrator found that although Ms. Harwood’s role became more like an advocate, she initially provided important services as an intermediary with professional qualifications as a nurse who understood the medical issues involved in Mrs. Harper’s case. As a result, Liberty Mutual was ordered to pay for Ms. Harwood's services to May 31, 1996 ($2,976.36, plus interest from June 15, 1996).

On appeal, Liberty Mutual submits that the arbitrator’s order is unfair because it had no notice of any claim for case management services. While I have concerns about the lack of notice, I am struck more by the lack of any evidentiary basis for the arbitrator's decision. The exhibits and the transcript do not provide any evidence that Ms. Harwood acted as anything other than a paralegal.

Mrs. Harwood described herself as a paralegal in both her letters and testimony. She communicated with Liberty Mutual using the business name, "The Accident Claims Consultant." More importantly, she consistently acted as an advocate, taking instructions from Mrs. Harper rather than making recommendations based on her professional experience as a nurse. For example, in her first letter to Liberty Mutual, Ms. Harwood insisted that it stop dealing directly with Mrs. Harper and, instead, communicate with her as Mrs. Harper’s representative. Finally, the account that Liberty Mutual was ordered to pay is a traditional legal account, not the account of a caregiver.

I recognize that the problem with treating Ms. Harwood as a paralegal is that many, if not all, of her services were performed before arbitration. This makes it difficult to claim them as arbitration expenses. However, I am unable to view this situation any differently than if she had retained a lawyer. As a result, Ms. Harwood’s services are not compensable unless they can be fit within the arbitration expenses ordered by the arbitrator.

VI. SPECIAL AWARD

According to subsection 282(10), the arbitrator is to order a special award if he or she finds that the insurer unreasonably withheld or delayed the payment of benefits. The amount of the special award can be "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."

The arbitrator here found that Liberty Mutual unreasonably delayed the payment of caregiver benefits, vehicle modifications, transportation expenses, and certain supplementary medical and rehabilitation expenses. Because she found Liberty Mutual’s behaviour "serious," she ordered it to pay a special award of 40% on the amounts owing in relation to those benefits. Liberty Mutual appeals, claiming that its actions were not unreasonable.

I am not prepared to interfere with the arbitrator's order. She heard testimony from the key witnesses, particularly Liberty Mutual's claims specialist, Ms. Grimaldi. After considering this testimony along with the documentary evidence, the arbitrator was quite critical of Liberty Mutual's handling of Mrs. Harper's claims. Many of problems seem to involve a failure to deal adequately with the realities of her isolated location and self-sufficient lifestyle. The complexity of the SABS-1994 also did not help. While Liberty Mutual may have faced some legitimate problems in adjusting this claim, there is ample evidence to support the arbitrator’s general assessment of the situation and, therefore, I will not second-guess it.

The arbitrator lists Liberty Mutual’s reliance on the 1995 amendments to the SABS-1994 as one consideration in ordering a special award for withholding caregiver benefits. Although I have accepted Liberty Mutual’s arguments about the amendments, I agree with Mrs. Harper that this was not a major factor in the special award. The arbitrator's main criticism of Liberty Mutual's refusal to pay caregiver benefits concerned the scheduling of the March 1996 examinations, its response to Mrs. Harper’s non-attendance and it failure to reschedule.

Liberty Mutual also specifically argues that it should not be ordered to pay a special award based on the vehicle modifications because its obligation to modify more than one vehicle raised a novel issue. As Mrs. Harper submits, however, the arbitrator found that Liberty Mutual did not even ensure that she had access to one vehicle with automatic transmission, whether two-wheel or four-wheel drive.

VII. APPEAL EXPENSES

Mrs. Harper has been successful in resisting most parts of Liberty Mutual’s appeal. In the circumstances, she should receive her reasonable appeal expenses.