Neutral Citation: 1998 ONICDRG 79, 1998 ONFSCDRS 79

FSCO A97-001299

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARY EBBS

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

This arbitration arises out of a July 20, 1992 motor vehicle accident. The Applicant, Mrs. Mary Ebbs, was struck by a car on the left side of her body and knocked to the ground. As a result, Mrs. Ebbs sustained fractures of her pelvis and her third lumbar vertebra, as well as sustaining extensive soft tissue injuries.

At the time of this accident, Mrs. Ebbs was approaching her 71st birthday. Previously, she had been active and independent. Mrs. Ebbs was still employed at the time of the accident cleaning medical offices, ten to fifteen hours a week, Monday to Friday.

As a result of her injuries, Mrs. Ebbs was taken to Ottawa Civic Hospital, where she remained for some two weeks until discharged to the care of her daughter, Ms. Kathleen Ebbs.

At the time of the accident, Kathleen Ebbs was employed by her brother's (Mr. Dennis Ebbs') company, Orleans Dodge Chrysler ("Orleans"), doing a variety of clerical duties. Following the accident, Kathleen Ebbs sought benefits from Economical Mutual Insurance Company ("Economical"), pursuant to the Schedule,¹ for her claimed loss of income while taking care of her mother as a result of the latter's accident-related injuries. In June 1993, the Insurer paid the sum of $3,429 in this regard. In 1996, a further claim for attendant care benefits was made to Economical for $2,500 a month, from August 3, 1992. This claim was refused.

The Applicant's position (as stated by her son and representative, Mr. Dennis Ebbs) is that since and as a result of the accident, Mrs. Ebbs has needed at least approximately twelve hours of care a day, if not 24 hours a day care. It was further submitted that this care has been provided by Kathleen Ebbs and that the value of such care is the latter's lost income since the accident.

The Insurer submitted that a reasonable estimate of the weekly care and services which Mrs. Ebbs has needed since this accident is four hours until November 1994 and seven hours thereafter. It submitted that the proper hourly rate for the care and services provided should be the minimum wage and that a credit should be given for the $3,429 already paid.

The parties were unable to resolve their dispute through mediation and Mrs. Ebbs applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What benefit is Mrs. Ebbs entitled to pursuant to section 7 of the Schedule, for attendant care provided by Kathleen Ebbs as a result of the accident?

2. What benefit is Mrs. Ebbs entitled to pursuant to paragraph 6(1)(f) of the Schedule, for other services provided by Kathleen Ebbs as a result of the accident?

3. Is Mrs. Ebbs entitled to a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8?

4. Is Mrs. Ebbs entitled to interest on any amounts owing?

5. Is Mrs. Ebbs entitled to her expenses incurred in this arbitration proceeding?

Result:

1. Mrs. Ebbs is entitled to benefits pursuant to paragraphs 6(1)(f) and 7(1)(b) of the Schedule, for seven hours per week from the date of the accident until January 12, 1995, ten and a half hours per week between January 13, 1995 and July 22, 1998 and fourteen hours per week from July 23, 1998, at the minimum wage rate for adult workers applicable in Ontario at the time in question, less a credit for the sum of $3,429 received.

2. Mrs. Ebbs is entitled to interest on overdue payments from August 11, 1996 in accordance with subsections 24(1) and (4) of the Schedule.

3. Mrs. Ebbs is not entitled to a special award.

4. The issue of expenses may now be spoken to.

Hearing:

The hearing was held in Ottawa, Ontario, on September 1, 2 and 3, 1998, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant:

Mary Ebbs

Mrs. Ebbs's Representative:

Dennis Ebbs

Economical's Representative:

Catherine L. Coplea

Barrister and Solicitor

Economical's

Colin Davey

Officer:

Witnesses:

1. Ms. Kathleen Ebbs

2. Mrs. Mary Ebbs

3. Ms. Annette Miller

4. Mr. Guy Fortier

Mr. Jean Lartigau, of Gillespie Reporting Services, transcribed the proceedings on September 1 and 2, 1998.

Exhibits:

Exhibit 1

Insurer's Document Brief

Exhibit 2

Photocopy of letter of Dr. T. Hodgson, dated March 17, 1998

Exhibit 3

Copies of Orleans Dodge Chrysler Payroll Register, December 21, 1991 to January 20, 1993

Exhibit 4

Copy of record of employment dated January 8, 1993 and ROE Information correction dated 1/2/93

Exhibit 5

Copy of letter from O'Brien Transportation Inc [sic] dated April 3, 1998, with two-page enclosure

Exhibit 6

Copy of Application for Expenses dated June 12, 1996, signed on behalf of Mrs. Mary Ebbs by her power of Attorney, with attached two-page memorandum and Power of Attorney given on October 3, 1995 appointing Mr. Dennis Ebbs

Evidence and Findings:

1. Background/ Causation

The medical documentation filed indicates that Mrs. Ebbs suffers from progressive dementia. At the start of this hearing, I queried the Applicant's mental competence. Both Mr. Ebbs and Ms. Coplea indicated their belief that the Applicant was competent. Based on my enquiry with the Applicant, I was satisfied that she understood the function of this tribunal and in general terms, the substantive issues in dispute and what was being sought. My conclusion was reinforced by Mrs. Ebbs' responses to the questions posed to her by both representatives.

A sub-issue in this hearing was whether Mrs. Ebbs' present dementia was caused by this accident. Mrs. Ebbs' daughter testified to seeing blood behind her mother's right ear following the accident. Dr. Mascarenhas, who performed an insurer's medical examination in April 1993, indicated his impression that Mrs. Ebbs had sustained a concussion in this accident.

However, I could not decipher any notation in the records of the Ottawa Civic Hospital of blood being noted behind the Applicant's ear, nor is there a diagnosis of a head injury. On admission at the hospital, the Applicant is noted to be alert. Although I did not receive the ambulance report, the hospital records state that the former indicated that there was no loss of consciousness. The hospital discharge summary states that Mrs. Ebbs "was disoriented for about one minute."

Although Mrs. Ebbs testified that she had no memory of anything from the time of the accident until arriving at the hospital, less than a year after the accident she told Rehabilitation Services of Canada ("RSC") that she believed that she had lost consciousness for a few minutes, but was alert in the ambulance. The first medical notation documenting cognitive problems was in November 1994, more than two years post-accident, when Mr. Ebbs informed his mother's family doctor, Dr. T. Hodgson, that the Applicant was having memory problems. Mr. Ebbs, however, advised Dr. Hodgson that he did not recall his mother having a head injury at the time of the accident.

An uncontradicted November 1994 letter from RSC indicates that Dr. Hodgson herself believed that Mrs. Ebbs' memory problems were "not accident related in any way." This was also the opinion of Dr. S. Christie, of the Memory Disorder Clinic of the Sisters of Charity Hospital, who stated in March 1996 that the accident was "an unlikely factor" in Mrs. Ebbs' mental difficulties. Dr. W. Quan, who conducted an insurer's psychiatric examination in August 1998, also felt that it was "highly unlikely" that Mrs. Ebbs' dementia was associated with the car accident.

Mr. Ebbs was unable to point to any medical opinion linking his mother's cognitive difficulties to this accident. Accordingly, I am not persuaded that Mrs. Ebbs' cognitive deficits result from this accident.

The Insurer agrees that Mrs. Ebbs has required and continues to require some measure of attendant care and non-medical services as a result of this accident. In question is the number of hours per week and the hourly cost to which Mrs. Ebbs is entitled to under the Schedule.

Mrs. Ebbs initially made a significant recovery from her injuries. Prior to her discharge from Ottawa Civic Hospital, several notations indicate the Applicant's ability to ambulate, at least to some extent, independently. Although Kathleen Ebbs testified that her mother did not improve following the accident, the recorded visits at the ambulatory care services section of the Ottawa Civic Hospital following discharge do indicate slow improvement.

Nonetheless, the predominant medical opinion is that Mrs. Ebbs sustained significant long-term injuries as a result of this accident. Dr. Mascarenhas states that Mrs. Ebbs "had genuine symptomatology. I believe she is a credible historian, and the type of injuries that she sustained, usually result in prolonged symptomatology." He further suspected that "her pre-existing osteoarthritis of her lumbar spine would probably prolong her recovery."

Dr. W.B. Dalziel, Chief of Geriatric Medicine at Ottawa Civic Hospital, indicated in January 1995, that "it is clear that [Mrs. Ebbs] has suffered significant decreased quality of life, decreased function, decreased mobility, and a significant pain syndrome related to her motor vehicle accident which will not dramatically improve."

2. Attendant Care Benefits - Gross Income Reasonably Lost

The Applicant's claim, up to the start of the hearing, was framed exclusively as a claim for attendant care benefits, pursuant to section 7 of the Schedule. This provision provides that:

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; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

(2) The maximum amount payable per month under this section is $3,000 a month with respect to each insured person.

(3) The maximum amount payable under this section is $500,000 with respect to each insured person.

[emphasis added]

Arbitrators have distinguished between services provided to take care of an insured person (as coming under the above provision) and services provided to replace duties (such as housekeeping) previously performed by an insured, the latter coming under paragraph 6(1)(f) of the Schedule, which states that:

6.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

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

At the opening of the hearing, it appeared that the Applicant's claim was both for attendant care and for other services said to have been provided by Kathleen Ebbs. On the consent of both parties, the issues were amended to include a paragraph 6(1)(f) claim.

Mrs. Ebbs' initial claim is that Kathleen Ebbs has lost income as a result of caring for her mother due to the latter's accident related injuries.

Kathleen Ebbs testified that at the time of the accident she was working full-time for Orleans, earning $35,000 a year, which included the value of the use of a car. Kathleen Ebbs further testified that since the July 1992 accident, she has looked after all of her mother's needs "around the clock" and therefore never returned to full-time employment. She testified that when she did return to Orleans, she only worked from 4:00 p.m. to 9:00 p.m. and that her yearly salary was reduced to about $12,000.

Mr. Dennis Ebbs, however, calculated the attendant care claim on the basis of a gross income of $30,000 per year, less post-accident income earned, for a total claim of approximately $131,000 to the end of August 1998, plus interest on overdue amounts and an ongoing claim in the amount of $23,500 per annum, subject to inflation.

On the evidence before me, I am persuaded that Kathleen Ebbs has provided considerable care, attention, services and companionship for her mother. I find that much of this attention, while perhaps commendable, is not compensable as a reasonable expense which was intended to be borne by an insurer. Nor am I persuaded that Kathleen Ebbs has reasonably lost any income as a result of her mother's accident related injuries. Rather, I find that she has misrepresented the income she was earning at the time of this accident, her time off work following this accident and her post-accident income. I come to these conclusions for the following principal reasons:

1. There is no independent evidence that Kathleen Ebbs was earning either $35,000 or $30,000per annum at the time of the accident. The uncontradicted evidence of Mr. Guy Fortier (who initially adjusted this file) was that Ms. Ebbs advised him in March 1993 that she was earning $381 a week at the time of the accident. This is consistent with the Orleans' payroll register which shows Ms. Ebbs earning $381.25 per week as of the accident date, or $19,825 per annum. The Orleans' payroll register for the end of 1991 shows a weekly salary of $256.25. Although Revenue Canada indicates that Ms. Ebbs never filed her 1991 income tax return, her 1989 and 1990 income tax summaries show a total T4 yearly income of approximately $15,000.

2. Ms. Ebbs testified that she was initially completely off work following this accident and then returned only on a part-time basis to Orleans. Ms. Ebbs, however, had no recollection of how long she was away from work and incongruously, could not say whether she was off work one day or six months.

3. Mr. Fortier, however, testified that Kathleen Ebbs told him in March 1993, in the presence of the Applicant's then counsel, that she had taken off August and September 1992 to care for her mother, losing $381.00 a week for this nine-week period, returned to work in October 1992 and subsequently quit in January 1993 to pursue part-time schooling. On the basis of this representation, the Insurer paid the Applicant $3,429. Mr. Fortier testified that he did not receive any further request on behalf of Kathleen Ebbs for any further loss of income, prior to closing his file in November 1993. Mr. Ebbs chose not to cross-examine Mr. Fortier. The evidence before me indicates that the attendant care claim was first reasserted more than two and a half years later.

4. Ms. Ebbs' evidence that she never returned to full-time work following this accident was contradicted by Orleans' payroll register which showed that Ms. Ebbs continued to be paid $381.25 per week from the accident date until January 20, 1993.

5. Ms. Ebbs' evidence as to her post-accident hours was further contradicted by Orleans' former controller, Ms. Annette Miller. Ms. Miller testified that Kathleen Ebbs missed little, if any, time from work after the accident and was "always [at Orleans] at eight in the morning." I found Ms. Miller to be independent and credible. I make an adverse inference in relation to Mr. Dennis Ebbs' decision not to testify, although he was specifically invited to do so. As Ms. Miller's employer, Mr. Ebbs was in a unique position to be able to contradict Ms. Miller's evidence.

6. Kathleen Ebbs' assertions as to her post-accident work, income and the assistance which she provided her mother were further contradicted by her own applications for unemployment insurance ("UI"). In her January 1993 application, Ms. Ebbs declared that she normally worked 40 hours a week, five days a week, earning $762.50 biweekly. She further indicated that she was ready and willing to work immediately and that there were no days in the week or hours in the day that she could not work. She also indicated that she was no longer working because of a "shortage of work." Ms. Ebbs testified at the hearing that she had lied to UI about the reason she had stopped working and the hours which she had worked. I do not believe her evidence. Her UI declaration was consistent with the independent evidence and specifically with the record of employment issued by Orleans, the Orleans payroll register and the evidence of Ms. Miller.

7. Kathleen Ebbs testified that she again worked at Orleans between January and May 1994. She stated in cross-examination that she returned to work because she wanted to work fewer hours. When the Insurer pointed out that this was illogical as she had testified that immediately prior to this return, she was not working at all, the deponent testified that "maybe" the reason for going back was that she needed to get out of the house. The most persuasive explanation for the inconsistent and speculative answers given by Ms. Ebbs is that she was not telling the truth as to her post-accident work and income.

8. Ms. Ebbs subsequently applied for UI benefits in June 1994. I do not accept her entirely unsubstantiated allegation that Ms. Miller forged her signature on the application form, perhaps in some attempt to defraud UI. I accept Ms. Miller's evidence that the writing on the application form was not hers (as she is left-handed and crosses her "sevens") and that she had not signed the document. I again make an adverse finding against the Applicant in that although Ms. Miller testified that the handwriting on the UI application looked like that of Mr. Ebbs, Mr. Ebbs chose not to testify. This second application differs from the first only in that longer hours are noted (ie. a normal work week of 65 hours), although the biweekly salary is now down to $752. Again, the form indicates that Ms. Ebbs was ready and willing to work immediately and that there were no hours or days which she could not work. The reason given for not working is shortage of work, although the more probable reason is that Mr. Ebbs no longer owned Orleans.

9. Mr. Ebbs submitted that his sister did not earn any income in 1995, based on the Revenue Canada record that Ms. Ebbs did not file a 1995 income tax return. However, the hospital records for Kathleen Ebb's 1995 hospital admission for an adjustment disorder and depression, indicates that at that time she had two jobs, one earning a hundred dollars a week "keeping the books" for her brother's "car dealership" (as well as having half of her mortgage paid) and the other driving a bus. Correspondence from O'Brien Transportation Inc. (O'Brien) indicates that Ms. Ebbs earned $7,060.95 in 1995. At the end of her cross-examination, Kathleen Ebbs suddenly remembered that after Orleans, she had worked for another of her brother's companies, EZEE National Leasing, but could not recall whether she had earned any income from that employment.

10. In a further application for UI in March 1995, Kathleen Ebbs declared that she had been working for O'Brien for six months. Neither this application, nor her subsequent applications in June 1995, June 1996, June 1997 or December 1997 indicated that Ms. Ebbs had to stop working to take care of her mother. Rather, the reasons given for the cessation in employment were shortage of work, school breaks, or difficulty with her employer. Repeatedly, Ms. Ebbs declared in the applications that she was ready and willing to work immediately and there were no days or hours which she could not work.

11. Ms. Ebbs' 1996 income tax return shows a total T4 income of $1,697, whereas correspondence from O'Brien shows her 1996 income as approximately $7,500.

Ms. Ebbs testified at various points that subsequent to this accident, her brother paid her while she was not working or was providing her with a loan. The October 1995 records of the Ottawa General Hospital indicate that Kathleen Ebbs had been supported by her brother since 1987. When this was put to Ms. Ebbs in cross-examination, she did not deny this statement, but responded that "there is nothing wrong with that."

I agree that there is nothing wrong with Mr. Ebbs supporting his sister. The relevant point in this case is that Ms. Ebbs was having financial problems prior to this accident, which continued after the accident. If there has been any loss of income following this accident by Ms. Ebbs, it has not been truthfully represented and it is due to reasons other than caring for the Applicant as a result of this accident, including the personal preference of Ms. Ebbs.

The RSC report of March 1993 indicates that Ms. Ebbs' layoff six months after the accident was due to depression and an inability to cope with stress. A further report in August 1993 indicates that Ms. Ebbs wanted "to stay home to take care of her mother and that she also enjoys the time off." The October 1995 hospital records set out Ms. Ebb's unfortunate personal experiences. In her enumerated list of stressors, taking care of her mother is conspicuously absent. In fact, it appears that being with her mother was perhaps as much in Ms. Ebbs' interest as her mother's. I am persuaded that Ms. Ebbs' limited education, her dependency on her brother and her brother's change of business are more probable reasons for Ms. Ebbs' limited income following this accident. I am also persuaded that a major reason for Ms. Ebbs' current considerable attention to her mother are the cognitive difficulties, which I do not find are due to this accident.

The Ottawa General Hospital also noted that Mrs. Ebbs had indicated that a solution to one of her daughter's major stressors, financial difficulty, would be for the Insurer to pay the $100,000 remaining on the mortgage for her taking care of the Applicant.

The purpose of section 7 is not to take care of Kathleen Ebbs' personal or financial needs. Its purpose is to provide necessary care for injured persons, including compensating those who must lose time from work in order to provide such care. I am not persuaded that Ms. Ebbs has reasonably lost any income in caring for her mother as a result of Mrs. Ebbs' accident-related injuries. The paragraph 7(1)(a) claim is therefore denied.

3. Reasonable Care Expenses/ Supplementary Medical Expenses

As stated above, paragraph 6(1)(f) of the Schedule provides compensation for reasonable expenses for non-enumerated "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident." Arbitrator Palmer noted in Bush and Pilot, (OIC A-004687, April 25, 1994) that "section 7 Care Benefits specifically carves out of section 6 Supplementary Medical and Rehabilitation Benefits, those expenses related to the personal care of the insured person."

I accept that prior to this accident, as stated by the Insurer's expert, Dr. Ellis, Mrs. Ebbs "apparently, had been in good health considering her age of 70 years at the time of injury," and that she "maintained an independent lifestyle living in a second floor apartment in which she did her own laundry, housekeeping, cooking and grocery shopping" (the latter with some minor assistance from her daughter who drove her once a month, as the Applicant does not drive). I further accept that Mrs. Ebbs sustained objective and significant injuries in the accident, as a result of which she has required some measure of assistance.

The view of a consulting physiotherapist in the summer of 1993 was that there were "no physical reasons for Mrs. Ebbs not to be independent with her tasks of daily living." However, any assertion that Mrs. Ebbs was at that point able to fully resume all of her pre-accident duties and care is contradicted by the same physiotherapist's view that the Applicant required "a minimum of two years of intensive therapy" to return to her cleaning work and would benefit from a comprehensive rehabilitation programme. Based on the opinions of the family doctor, Dr. Hodgson, the treating surgeon, Dr. Carruthers and the Insurer's medical examiner, Dr. Mascarenhas, I find that as a result of the injuries sustained in this accident and the resultant chronic pain, Mrs. Ebbs has been restricted in performing her prior household duties.

The Rehabilitation Centre's June 1994 assessment determined, in part, that Mrs. Ebbs' standing and walking tolerance was significantly impaired, "[t]he limiting factor for this activity [being] her left lower back and hip pain." The Centre felt Mrs. Ebbs "would have difficulty performing activities such as emptying garbage cans, dusting, vacuuming, sweeping floors as these activities demand that one be able to bend/stoop, reach, stand and walk." Mrs. Ebbs, however, was considered capable of some functional activities, such as selfcare, light cooking and housework.

An unsigned "sign-back" letter to Dr. Hodgson that same month indicated that Dr. Hodgson felt that Mrs. Ebbs "could not do heavy or even light housework (such as dusting). However . . . [she] should be able to perform all her activities of daily living, involving getting dressed, toileting, and preparing a light lunch for herself in the kitchen etc."

Dr. Hodgson believed that Mrs. Ebbs continued to have limitations due to pain from the accident, which "definitely slowed her down and contributed to her becoming further deconditioned." Although Mrs. Ebbs may have had non-accident related difficulties (such as possible cognitive impairment), I accept Dr. Hodgson's opinion expressed in early 1994 that the "injuries resulting from the accident are the main reason that [Mrs. Ebbs] is unable to resume her previous activities." I am persuaded that the injuries sustained in this accident, at the very least, significantly contributed to, if not necessitated on their own, the need for some assistance.

Ms. Rosemary Alexander, a rehabilitation consultant, opined that as of late 1994, Mrs. Ebbs required general assistance of approximately four hours per week, including vacuuming, kitchen and bathroom cleaning, laundry, dusting and grocery purchase. I accept this opinion. I also accept that Mrs. Ebbs required an additional three hours of assistance for food preparation.

I make this latter finding based on the implication from Dr. Hodgson that Mrs. Ebbs required some assistance with making meals. I also read Ms. Alexander's report as indicating that although she was not satisfied that meal preparation difficulties in late 1994 were accident-related, this impairment had existed for some period as a result of the accident. I think that it is fair to allow compensation for Ms. Alexander's suggestion that "someone could come in to cook meals on a once weekly basis for perhaps up to three hours and prepare food which could be frozen in small portions and reheated."

An RSC assessment in November 1994 indicated that Kathleen Ebbs assisted her mother with dressing, as she was unable to reach her feet to don her socks, shoes or pants. Mrs. Ebbs, however, was able to independently transfer on and off the toilet using a versa frame and was able to sit on a transfer bench while showering with a hand-held shower. An earlier RSC report, however, in August 1993, noted Kathleen Ebbs' statement that her mother was "independent with washing, dressing and applying makeup, but still needs assistance with going up and down the stairs." In November 1994, Dr. Hodgson, as noted above, indicated Mrs. Ebbs was independent in dressing and toileting. In light of this contradictory evidence, I am not satisfied that care services for dressing, bathing or toileting were reasonably required at this point in time.

The medical documentation indicates that the family does "not leave [Mrs. Ebbs] alone in the house for fear that she may have a fall." Dr. Hodgson, however, "advised that [Mrs. Ebbs] may be a little more at risk than other women of the same age," but that the family was "protective." While the family has every right to be protective, the compensation available is limited by a reasonableness requirement, under both sections 6 and 7. Considering the medical opinions and also that Mrs. Ebbs has evidently been left alone after the accident while her daughter engaged in a variety of employment as noted above, I do not find "round the clock" or twelve hours a day assistance to be reasonably required as a result of this accident.

Any concern that Mrs. Ebbs not be left alone or not be allowed to use the stove, I find relates to her cognitive problems, which I find were not caused by this car accident. Furthermore, the claim that Mrs. Ebbs has been almost totally physically disabled is contradicted by the fact that in early 1993, the family began building a new two-storey home, with Mrs. Ebb's bedroom on the second floor and the living area on the first floor, presumably with the realization that Mrs. Ebbs would have to climb the stairs connecting the two levels. Having made this choice, I do not think that it is reasonable, subject to a deterioration in her condition due to this accident, to require the Insurer to bear the cost of assisting Mrs. Ebbs up and down the stairs in the new home.

I am satisfied that seven hours a week of assistance, on average from the date of the accident, was required for housekeeping, shopping and more extensive meal preparation. Although Mrs. Ebbs may have required some assistance for more personal care earlier on for some period of time as a result of the accident, the vagueness of the evidence in this regard and Kathleen Ebbs' lack of credibility, prevent me from assigning any approximate estimate of required care in terms of weekly hours or duration.

Dr. Hodgson indicated in early 1994, that given her age, Mrs. Ebbs' stiffness and pain would increase over time. This was echoed a year later by Dr. J. Karsh, a Professor of Medicine, with the Rheumatic Disease Unit of the Ottawa General Hospital, who opined that Mrs. Ebbs, who was noting worsening back pain with some radiation down her left leg, would "continue to deteriorate functionally slowly."

In January 1995, Ms. Ebbs was also assessed by Dr. Dalziel, who felt that possible improvement of Ms. Ebbs' decreased function and mobility, even with interventions such as physiotherapy and attendance at a chronic pain clinic, would only be minimal. In terms of care and other services, Dr. Dalziel stated that Mrs. Ebbs:

does require assistance in terms of transferring in and out of a car. She can and should continue to perform her grooming independently. At the present time she is basically independent for upper limb function and requires assistance for lower limb dressing. She is able to do simple food preparation and is able to perform toilet functions. She requires assistance for safety in the bath and because of limited standing tolerance requires cooking by her daughter.

Although Dr. Daziel noted other diagnoses such as memory loss, hypertension, hypercholesterolemia and osteoarthritis, his opinion appears to be that the limitations noted above were significantly contributed to, if not predominately caused by a "chronic pain syndrome with decreased mobility/decreased function," as a result of this accident.

I am persuaded that by January 1995, Mrs. Ebbs' accident-related problem had deteriorated to the point that some care was required, specifically regarding lower limb dressing/undressing and bathing assistance. Unfortunately, I received no evidence from the Applicant as to the time necessary to perform these services. From January 13, 1995 (the date of Dr. Dalziel's assessment), I therefore estimate that an extra 3.5 hours a week (ie. half an hour a day) of care was required because of this accident.

Mrs. Ebbs was seen by Dr. Christie at the Memory Disorder Clinic in March 1996. There is little comment on care needs. Dr. Christie does state that the assistance Mrs. Ebbs received dressing seemed to be "primarily secondary to pain rather than confusion regarding dressing itself." A very brief report by Dr. Hodgson in March 1998, states that Mrs. Ebbs continues to suffer from chronic back and left hip pain and that if not for the car accident, she would be "an active 76 year old woman." The report, however, does not comment on Mrs. Ebbs' household or care needs.

The only assessments before me conducted subsequent to early 1996, are those of Dr. Quan and Dr. Ellis, who performed insurer's medical examinations in the summer of 1998. Dr. Quan, a psychiatrist, felt that Mrs. Ebbs' dependency was "directly related to the fact that [Mrs. Ebbs was] progressively dementing" and that in addition, her daughter was overprotective and reluctant to allow the Applicant any independence. Dr. Quan, however, felt that Mrs. Ebbs' difficulties in negotiating stairs and in ambulation were directly related to the accident. Dr. Quan felt that Mrs. Ebbs required "very minimal help" as a result of injuries sustained in this accident. Dr. Quan's opinion, however, is of little assistance, as he candidly admits that he is "certainly not an expert in gauging the amount of household and personal care required by individuals." Furthermore, the assistance required by Mrs. Ebbs as a result of this accident is due to her orthopaedic difficulties, an area outside of Dr. Quan's expertise.

Therefore, I place greater weight on the opinion of Dr. Ellis, an orthopaedic surgeon. In terms of assistance, Dr. Ellis believed that Mrs. Ebbs:

does need help in the mornings to get out of bed and to the bathroom, as well as dressing herself. Although, if the effort was needed, I believe that she could accomplish dressing on her own. Similarly, retiring in the evening would require some assistance from the standpoint of bathroom and disrobing. Certainly, she cannot do anything in the way of housework or cleaning. I believe that she could manage her toileting requirements during the day. It is likely that she could fix herself a light lunch, such as a sandwich, although, she could not manage a full meal. She could do some gentle exercise herself without having to have her daughter involved in passive exercise. Use of the walker in the house, as she is doing at present, probably, is enough to provide safety . . . This, probably, would work out to about two to three hours a day of direct assistance.

Dr. Ellis, however, states that "the majority of this time is not as a direct flow from the accident." He felt that most of these limitations resulted from non-related medical problems, leading to a "progressive deterioration in her condition." He therefore estimated "that the time requirements to assist her with her on going chronic pain, which is the only residual of the injuries that she sustained, would be more in the order of one hour a day. This corresponds, fairly closely, to the assessment of the rehabilitation consultant at the time of closure of her file in early 1995."

There is, unfortunately, no breakdown of these hours. I am not sure if Dr. Ellis is of the opinion that assistance for only some types of activities is accident-related, or whether he is saying that only part of the assistance for any particular activity is necessitated by the accident. Dr. Ellis does state that Mrs. Ebbs' pre-existing degenerative changes in her lumbar spine and left sacroiliac region are contributing to Mrs. Ebbs' ongoing difficulties, which "may have been aggravated by the accident." He also says that:

The assistance that, now, she requires in getting out of bed, dressing, and bathroom and hygiene needs, is that with which all families are faced when caring for their aging parents.

I do not accept that all persons in their seventies would be in Mrs. Ebbs' present condition. I am satisfied, on the basis of the medical documentation, that at this point, Mrs. Ebbs' accident-related injuries are significantly contributing to the need for household and grocery assistance (four hours per week), meal preparation (three hours per week) and the need to assist Mrs. Ebbs in arising and retiring as well as other physical activities (which I assess at seven hours a week), for a total of fourteen hours a week, from July 23, 1996, the date of Dr. Ellis' report.

I find that such services and care are being provided by Kathleen Ebbs. As in Arbitrator Makepeace's decision in McNutt and Metropolitan Life Insurance Company, (OIC A-006964, September 20, 1994), I find it appropriate that Ms. Ebbs be paid the minimum wage rate for adult workers in Ontario at the time her services were provided. For the reasons noted above, I find that Ms. Ebbs has not established any loss of income as a result of caring for her mother or taking over housekeeping and other duties. I am not persuaded that Economical should pay Ms. Ebbs an amount that it "might" have had to pay, should another service provider have been hired. In any event, no evidence of the cost of such services was presented.

The award herein is based on paragraphs 6(1)(f) (which was specifically added to this proceeding) and 7(1)(b), the latter not being specifically set out in the hearing as the claim was made under paragraph 7(1)(a). Arbitrator Draper decided in Park and the Citadel General Assurance Company, (OIC A-003410, August 23, 1993), that it would not be fair to decide a paragraph 6(1)(f) issue when benefits were only claimed under section 7. In this case, however, the Insurer conceded that the Applicant would be currently entitled to four hours a week under section 6 and three hours a week under section 7, both at the minimum wage rate. As the latter rate would only be available in this case under paragraph 7(1)(b), I do not believe that the Insurer would be prejudiced by an award being made on the basis of this provision. Having heard evidence and submissions on the reasonableness of the claimed attendant care, which is a criterion under both paragraphs, I believe that I would be in error to "prolong or further complicate this matter," by requiring a further hearing on this alternative basis of entitlement.

4. Special Award

I raised the issue of a special award while the Applicant was presenting her evidence, as it appeared from the documentation filed, that the Insurer's experts felt that some measure of ongoing care or services were required by Mrs. Ebbs as a result of this accident.

Based on all of the evidence received, I conclude that the Insurer did not unreasonably withhold or delay payments to Mrs. Ebbs. The Applicant did not submit a reasonable claim for assistance. Rather, the claim presented on behalf of Kathleen Ebbs was grossly inflated and riddled with misrepresentations.

Had Economical the right to its own medical examination for the claims submitted, one might find a corresponding duty for the Insurer to have been more proactive. However, subsection 23(2) limits Economical's right to insurer's examinations to claims for weekly benefits. I do not know how the Insurer's reports procured in the summer of 1998 came into being. However, in the circumstances of this case, a delay in payment of a few weeks from the dates of those reports to the date of this hearing was not unreasonable, especially as the paragraph 6(1)(f) claim was only clarified at the commencement of this hearing.

5. Interest

The Insurer submitted that interest on any overdue payments should only run from the date of this hearing, as there had never been "full, frank or coherent disclosure" of the Applicant's claim.

Director's Delegate Naylor held in Canadian Surety Company and Sebastian, (July 28, 1998, FSCO P96-00032) that the language of subsection 24(4) of the Schedule was mandatory and that "the consequences of a decision not to pay benefits that are found later to be owing" falls on the insurer, regardless of whether insufficient information was provided to the insurer to determine the amount of benefits. I follow this decision.

Subsection 24(1) of the Schedule states that amounts payable under the provisions in question in this hearing are overdue thirty days after the Insurer receives a completed application for no-fault benefits. I find that the pertinent application is the Application for Expenses dated June 12, 1996, which is marked received on July 11, 1996. I received no evidence that the claim as presented in this hearing had been submitted earlier than that date. I therefore find that interest on overdue payments begins to run on amounts accrued as of July 11, 1996 (less a credit for the payment of $3,429), on August 11, 1996, and on further amounts thirty days after each further monthly period.

6. Expenses

The question of expenses was deferred until all other issues in dispute were decided. The issue of the Applicant's expenses of this arbitration proceeding may, therefore, now be addressed.

Order:

1. Economical shall pay Mrs. Ebbs benefits pursuant to paragraphs 6(1)(f) and 7(1)(b) of the Schedule, for seven hours per week from the date of the accident until January 12, 1995, ten and a half hours per week between January 13, 1995 and July 22, 1998 and fourteen hours per week from July 23, 1998, at the minimum wage rate for adult workers applicable in Ontario at the time in question, less a credit for the sum of $3,429 received., together with interest on overdue payments from August 11, 1996 in accordance with subsections 24(1) and (4).

2. The issue of expenses may now be spoken to.

November 18, 1998

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.