Neutral Citation: 1999 ONFSCDRS 98
FSCO A98–000559
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOYCE ALFRED
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
Donald Hale
Heard:
April 19, 20, 21 and 22, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were received on May 3, 4 and 5, 1999.
Appearances:
Adam K. Wagman for Ms. Joyce Alfred
Ian D. Kirby for Allstate Insurance Company of Canada
Issues:
The Applicant, Joyce Alfred, was injured in a motor vehicle accident on December 30, 1993. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1 Allstate paid weekly income benefits of $185 until December 25, 1996. In addition, Allstate paid Ms. Alfred care benefits of $509.75 until August 2, 1996 at which time these benefits were reduced to $113.61. Ms. Alfred also advanced a claim for the payment of various Supplementary Medical/Rehabilitation Benefits, some of which were not paid by Allstate. The parties were unable to resolve their disputes through mediation, and Ms. Alfred applied for arbitration at the Financial Services Commission of Ontario (FSCO) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Alfred entitled to weekly benefits pursuant to section 13 of the Schedule from December 25, 1996 and ongoing on the basis that her injuries continuously prevent her from engaging in substantially all of the activities in which she would normally engage?
What is the correct amount of the care benefits under section 7 of the Schedule to which Ms. Alfred is entitled after August 2, 1996?
Is Ms. Alfred entitled to payment of the Medical\Rehabilitation expenses listed in her schedule of expenses attached to her Application of Arbitration under section 6(1) of the Schedule?
Is Ms. Alfred entitled to the payment of her expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?
Is Ms. Alfred entitled to interest on any amounts owing?
Is Ms. Alfred entitled to a special award under section 282(10) of the Insurance Act?
Result:
Ms. Alfred is entitled to weekly income benefits under section 13 of the Schedule from December 26, 1996 and ongoing at the rate of $185 per week.
Ms. Alfred is entitled to care benefits under section 7(1)(a) of the Schedule and ongoing at the rate of $250 per week.
Ms. Alfred is entitled to the cost of a new wheelchair, shower modifications, a shower commode, an overhead bed bar and funding for the services of a case manager, a Tamil-speaking psychologist, a counsellor with the CPA and a pain management course under section 6(1)(f) of the Schedule.
The issue of expenses may now be spoken to.
Ms. Alfred is entitled to interest on any overdue payments in accordance with section 24(4) of the Schedule.
Ms. Alfred is not entitled to a special award under section 282(10) of the Insurance Act.
EVIDENCE AND ANALYSIS:
At the time of the motor vehicle accident, Ms. Alfred was 27 years old and was living in Scarborough with her three-year-old daughter, Dalscene. Ms. Alfred arrived in Canada in August 1990, as a refugee from Sri Lanka. After the motor vehicle accident on December 30, 1993, Ms. Alfred was initially treated at Hotel Dieu Hospital in Cornwall. She was transferred that day to Ottawa Civic Hospital where she was diagnosed with a fracture dislocation of the thoracic spine at T11-12, causing a lack of sensation in her lower limbs. That same day, Ms. Alfred underwent an open reduction and internal fixation operation of the fracture using luque rods and subliminal wires, extending from T9 to L2 with a bone graft taken from the right iliac crest.
In addition to the loss of sensation and motor power below her umbilicus, Ms. Alfred experienced a loss of control of her bowel and bladder function. Ms Alfred remained in the Ottawa Civic Hospital until January 17, 1994 when she was transferred to the Lyndhurst Hospital, in Toronto, for rehabilitation. Ms. Alfred remained at Lyndhurst Hospital until August 5, 1994 at which time she was discharged.
Prior to the motor vehicle accident, Ms. Alfred was living with her daughter in a one-bedroom (plus a small den) apartment in Scarborough. Approximately two months before the accident, Dalscene's father, Jebanendran Vyramuthu, contacted Ms. Alfred and they resumed a relationship which had begun before Ms. Alfred left Sri Lanka. Mr. Vyramythu occasionally stayed overnight at Ms. Alfred's apartment and the couple discussed marriage and having more children during this short time period. Prior to the accident, Ms. Alfred was receiving social assistance and attending school from 8:00 a.m. until 3:30 p.m. Dalscene was enrolled in a subsidized daycare program while Ms. Alfred attended school. Ms. Alfred was responsible for all homemaking, childcare and house cleaning functions in her home prior to the accident. She testified about her pre-accident activities which including taking her daughter to a nearby park, completing her shopping and other errands by bus, visiting with neighbours in her apartment building, and with relatives.
Prior to the accident, Ms. Alfred attended school, cared for her daughter, cleaned her apartment and lead her life independently. She used public transportation for shopping, visiting, going to Tamil-language movies, attending school and taking part in religious services. Ms. Alfred played with her daughter, took her for outings to the park and to the beach and ensured that Dalscene was safe and well-supervised. Ms. Alfred also enjoyed riding a bicycle and played tennis and children's games involving running and walking. She participated actively in all kinds of activities requiring mobility, which only comes with the use of one's legs.
Upon her discharge from Lyndhurst Hospital in August 1994, Ms. Alfred moved into a three-bedroom, wheelchair-accessible unit in a new co-op apartment building in Scarborough with Dalscene and Mr. Vyramuthu. She and Mr. Vyramuthu were married a short time later. The family remains in this accommodation to the present day. After her release from hospital, Ms. Alfred was entirely dependent upon her husband to assist her with her personal care and hygiene, dressing, housekeeping, childcare and meal preparation. Mr. Vyramuthu left his employment in order to remain at home to care for her.
As time went on, and with the benefit of physiotherapy, Ms. Alfred became more able to complete transfers from bed to wheelchair and to perform personal tasks, such as bathing, dressing and personal grooming, although such tasks now take her much more time to complete. In 1996, modifications were made to her home at Allstate's expense, including the installation of lowered counters, sink and stove top in the kitchen, the removal of some lower kitchen cupboards to allow for wheelchair access to the countertops and the installation of equipment to enable Ms. Alfred to make use of the shower and toilet in the bathroom. These modifications made it possible for Ms. Alfred to accomplish some cooking and cleaning activities which she had previously been unable to perform.
Mr. Vyramuthu returned to work on a part-time basis in January 1997, working from 25 to 35 hours per week. Dalscene has been enrolled in school on a full-time basis since September 1996. On a typical weekday, both leave the house around 8:30 a.m. and return around 3:30 p.m., leaving Ms. Alfred home alone during the daytime.
Ms. Alfred assists her husband in preparing the family breakfast each day. She is able to make toast, cereal and sandwiches for her and her daughter's lunch. She can remove things from the lower cupboards and the refrigerator. Before leaving each morning, Mr. Vyramuthu cuts up the vegetables and meat which Ms. Alfred will then cook for the meal which her husband and Dalscene consume following their return home late in the afternoon. Mr. Vyramuthu also prepares a late-evening meal for the whole family each day, with the assistance of Ms. Alfred.
Ms. Alfred indicated that she is extremely reluctant to leave the apartment, for any reason, unless accompanied by her husband. While certain cultural factors might make her reluctant to integrate herself into her community more fully, she stated that she feels vulnerable and fearful when outside her home alone, and even when she is home alone during the day. Prior to the accident, Ms. Alfred was able to accomplish what she needed to do each day independently. Today, she feels that she requires the assistance of her husband to meet nearly all of her needs.
Ms. Alfred is wheelchair-bound and continues to have no control over her bowel and bladder functions. She uses a catheter for urination and suppositories and laxatives to assist in her bowel functions. Ms. Alfred indicated that she does not require assistance with this. She suffers from bladder infections which require treatment with antibiotics once or twice a month. Ms. Alfred also complains of back, shoulder and neck pain which she suffers on a daily basis and a general sense of being tired. She is unable to wear her traditional saris which require the fabric to be wrapped around the body because she is unable to stand.
Having fallen several times while making the transition from her wheelchair to the shower, Ms. Alfred now bathes only when her husband is at home, in case she requires his assistance in completing this transfer. Ms. Alfred also stated that she requires her husband's assistance when getting to and from her wheelchair and the family car. Each day, Mr. Vyramuthu also examines and massages the skin on Ms. Alfred's legs in order to prevent skin problems which are endemic among people confined to a wheelchair.
Ms. Alfred and Mr. Vyramuthu described how she is now able to assist with doing laundry. She is capable of putting clothes into the washing machine but because of the height of the dryer, she is able to load it but can unload only light items from it. She is capable of folding clothes but not bed sheets or larger items.
While Ms. Alfred is able to clean countertops that are within her reach and perform some light cooking activities, she performs these tasks slowly and only with some assistance. She is not capable of preparing the kind of complex Sri Lankan meals which Mr. Vyramuthu enthusiastically described her preparing for him prior to the accident. Ms. Alfred's ability to use the oven is now extremely limited as she is unable to lift heavy cooking pots and pans. She is also unable to prepare a traditional staple Sri Lankan dish which requires the preparation of noodles and steaming them in a large pot. The family's ability to entertain relatives in their home has also been curtailed because of Ms. Alfred's inability to prepare the kinds of meals expected when company visits.
Ms. Alfred is unable to perform the most basic housekeeping activities. She cannot clean the bathroom tub, sink or toilet, mop the floor or sweep and vacuum her home. Ms. Alfred was able to perform all of these activities without any restriction prior to the accident. Now, because of her limited ability to bend and reach, these activities are impossible.
In contrast to her pre-accident activities with her daughter, Ms. Alfred indicates that she is no longer able to supervise or ensure the safety of her daughter outdoors as she formerly did. Ms. Alfred accompanies her daughter to the second floor outdoor playground in their building, but only visits the park if her husband goes along as well. She also stated that her patience with and tolerance of her daughter's activities have been reduced as a result of the accident. Ms. Alfred's testimony as to her inability to play with Dalscene outdoors was particularly compelling. She stated that while she can observe her daughter and husband from her wheelchair, she is unable to participate, and finds this very distressing.
Prior to the accident, Ms. Alfred and Mr. Vyramuthu discussed having another child. In light of her paraplegia and the medications which she is taking to control her bladder infections, Ms. Alfred and Ms. Vyramuthu have decided not to have any more children. They feel that she is simply incapable of caring for an infant, in her condition.
Ms. Alfred indicated that she accompanies Mr. Vyramuthu when grocery shopping. Her participation is, however, limited to choosing what to buy. She is unable to push the shopping cart, reach items on the shelves or carry their purchases to and from the car. Ms. Alfred also gave evidence that she would find it difficult to return to school as she finds that her legs swell after sitting for long periods of time, causing her pain. Prior to the accident, Ms. Alfred attended a local Hindu temple each Friday evening for services. When she attempted to return in her wheelchair following the accident, she was told not to come back as she was unable to sit on the floor with the other worshippers. Fortunately, Ms. Alfred and Mr. Vyramuthu were able to find a temple in Richmond Hill which accepted her use of a wheelchair in the building. Ms. Alfred indicated that she found this episode very disturbing and humiliating.
Does Ms. Alfred qualify for a Weekly Income Benefit?
Allstate paid Ms. Alfred a weekly income benefit under section 13(1) of the Schedule on the basis that she suffered a substantial inability to perform the essential tasks in which she would normally engage. These payments were made from January 6, 1994 until December 25, 1996, for a total of 154 weeks and 3 days. The Insurer agreed that such payments should have been made for 156 weeks and that they will be paid up to the three-year anniversary date. The dispute involves Ms. Alfred's entitlement to weekly income benefits after 156 weeks, which is governed by section 13(8) of the Schedule. This provision reads:
The insurer is not required to pay a weekly benefit under this section,
(a) for the first week of disability;
(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage.
Entitlement to benefits following the expiration of the 156-week period has been the subject of a number of past appeal and arbitration decisions. In a recent appeal decision, Zurich Insurance Company and C.L. (FSCO P98-00043, March 24, 1999), Director's Delegate Draper adopted the test outlined by Arbitrator Joachim in Marchildon and State Farm Mutual Automobile Insurance Company (FSCO A97-000643, November 3, 1998) interpreting section 13(8):
While the pre-156 test focuses only on essential tasks, the post-156 test focuses on substantially all activities in which the insured would normally engage. Thus, an applicant must establish inability, not only with respect to his or her essential tasks, but with substantially all the activities in which he or she would normally engage. The degree of functional impairment is also stricter. Pre-156, the applicant must establish that he or she suffers a substantial inability to engage in the essential tasks. Post-156, the applicant must establish that he or she is continuously prevented from engaging in the relevant activities. While the post-156 test is strict, it should not be read so strictly as to make it virtually impossible for anyone to qualify. In cases such as the present one, where pain is the primary factor which allegedly prevents the applicant from engaging in her former activities, the question is not whether the applicant can physically do these activities, but whether the degree of pain she experiences, either at the time, or subsequently, is such that she is practically prevented from engaging in those activities.
When evaluating entitlement to weekly benefits under section 13(8), I am required to examine the evidence tendered with respect to the pre-accident activities in which Ms. Alfred normally engaged. I must then compare these activities to the activities in which she was capable of engaging following the expiration of the 156-week period, in January 1997. Ms. Alfred's paraplegia and the resulting back, neck and shoulder pain which accompany it have incontrovertibly and drastically altered her life and her ability to pursue the vast majority of the activities in which she was formerly able to engage.
Ms. Alfred's primary pre-accident activities revolved around attending school, caring for her daughter, cleaning her apartment and shopping, visiting and worshipping using public transit. She was entirely independent in the pursuit of these activities and unrestricted in the manner in which she could engage in them. Prior to the accident, Ms. Alfred played with her daughter outdoors, running and picking her up with no difficulty. She bathed her daughter and helped her get dressed. Following the accident, Ms. Alfred could no longer participate in play activities with her daughter requiring mobility, beyond the role of an observer. She is no longer able to physically assist her daughter with bathing or help her get dressed as she cannot bend or reach beyond the confines of her wheelchair. While she can observe her daughter's play activities, she cannot participate in any meaningful way or ensure her safety in the manner which she was able to before the accident. Ms. Alfred is also limited in her ability to feed her daughter and provide a clean home and safe environment for her. In my view, Ms. Alfred is now continuously prevented from engaging in substantially all of the childcare activities in which she was formerly engaged.
Prior to the accident, Ms. Alfred attended classes, taking public transportation to and from the school each weekday. She is presently incapable of using the transit system to attend school and indicates that her back pain and swelling in her legs prevent her from sitting for long periods of time, as would be required in a classroom setting. Because she cannot make use of the transit system and cannot sit for long periods of time in a class, I find that her injuries continuously prevent her from engaging in substantially all of the educational activities in which she participated prior to the accident.
Prior to the accident, Ms. Alfred prepared meals for herself and her daughter, did the laundry, cleaned the kitchen and bathroom, and kept the floors clean using a mop and broom. She experienced no difficulties in doing so. Following the accident, she was severely restricted in her ability to do the laundry, clean her home and prepare meals. She is only able to perform a few of those activities within her reach, such as loading the dishwasher and washing machine and preparing simple meals on the stove and countertop. She cannot clean the kitchen and bathroom or vacuum or mop the floors owing to her inability to bend and stretch. She cannot cook traditional Sri Lankan cuisine, nor can she lift heavy items out of the oven. I find that because of the limitations imposed upon her as a result of her injuries, she is continuously prevented from engaging in substantially all of the housekeeping activities in which she formerly engaged.
Before the accident, Ms. Alfred did all the shopping necessary for herself and her daughter, with the use of public transportation. She was capable of pushing a shopping cart, carrying home her purchases and putting them away upon her arrival home. After the accident, Ms. Alfred is no longer able to independently go on the bus to do her shopping, push a shopping cart, choose the items she wishes to buy, carry them home or put them away. While she still accompanies her husband to do the shopping, her participation is limited to advising as to the purchases to be made. She cannot reach items on the higher shelves or carry parcels and bags as she used to do. I find that as a result of her injuries, Ms. Alfred is continuously prevented from engaging in substantially all of the shopping activities which she was able to take part in prior to the accident.
Before December 30, 1993, Ms. Alfred was able to use public transportation to attend religious services on Friday evenings, regularly go to the movies, visit the homes of relatives and friends and take her daughter to local parks and the beach. While she would also be driven to these activities on occasion by her brother, I find that she relied primarily on the transit system to take part in them. As a result of the accident, Ms. Alfred has lost the ability to use public transportation to get around. She is now entirely dependent upon her husband for transportation and, therefore, access to religious and social activities. She indicated that she doesn't enjoy being around strangers and that what few social activities she now takes part in revolve around occasional visits to her relatives and those of Mr. Vyramuthu. They now only rarely go to the Tamil-language movies, which Ms. Alfred stated she used to enjoy. Accordingly, in my view, as a result of the injuries suffered in the accident, Ms. Alfred is continuously prevented from engaging in substantially all of the social and mobility activities in which she formerly engaged.
Ms. Alfred continues to attend Friday temple services but, because of her confinement to a wheelchair, she was forced to find a temple which would allow her to worship while remaining seated. She also indicates that she has prepared a small shrine area in her home which allows her to pray and worship at home when she is so inclined. In my view, Ms. Alfred is not, therefore, continuously prevented by her injuries from participating in her pre-accident religious observances.
The Insurer is of the view that many of Ms. Alfred's limitations are self-imposed, and that she is reluctant to make the necessary accommodations to adapt her life to her medical condition for various cultural and personal reasons. It also submits that Ms. Alfred's ability to perform a few of her former household activities and attend to her own personal care preclude her from qualifying for weekly income benefits following the expiration of the 156-week period.
In my view, the restrictions placed on Ms. Alfred by the injuries which she suffered as a result of the accident continuously prevent her from engaging in substantially all of her former activities. Her ability to care for her daughter, attend school, shop and keep her house, which were her primary pre-accident activities, have been severely limited as a result of the accident. Being confined to a wheelchair and being completely dependent on her husband for her transportation needs have also continuously prevented Ms. Alfred from taking part in substantially all of her former shopping, social and schooling activities. While she is able to accompany her husband to do the family shopping, attend religious services, visit with relatives and visit local parks, I find that she is no longer able to independently participate in substantially all of the component activities which comprise these elements of daily living.
While I recognize that the test for qualification under section 13(8) as described in Allstate and C.L. and Marchildon and State Farm is a strict one, I agree with the observation of Arbitrator Joachim and Director's Delegate Draper that "it should not be read so strictly as to make it virtually impossible for anyone to qualify." In the present case, I find that Ms. Alfred's paraplegia, bladder infections and resulting neck, back and shoulder pain continuously prevent her from engaging in substantially all of the activities in which she would normally engage. She is, accordingly, entitled to weekly income benefits of $185 under section 13 of the Schedule post 156-weeks and ongoing, plus interest in accordance with section 24(4) of the Schedule.
Is Ms. Alfred Entitled to Care Benefits?
Ms. Alfred has also claimed entitlement to care benefits under section 7(1)(a) of the Schedule. She claims the gross income lost by her husband, Jebanendran Vyramuthu, in caring for her from August 2, 1996 to the present. This section reads:
The insurer will pay with respect to each injured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the injured person,
(a) the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the injured person as a result of the accident in caring for the injured person;
Following Ms. Alfred's release from hospital in August 1994, the Insurer paid care benefits in the amount of $509.75 per week until August 2, 1996. After that date, the Insurer paid, and continues to pay, the sum of $113.61 per week. Mr. Vyramuthu did not return to his pre-accident employment until January 5, 1997 when he began working 25 hours per week and earning $10 per hour. This is in contrast to his pre-accident situation where he worked at two jobs for a total of 60 to 72.5 hours per week earning $7 and $7.50 per hour. Ms. Alfred is seeking payment of the difference between the $509.75 paid prior to August 2, 1996 and the $113.61 paid after that date, for the period August 2, 1996 to January 5, 1997. Ms. Alfred seeks payment of a further amount representing the difference between the amount actually earned by Mr. Vyramuthu between January 6, 1997 and the date of the hearing, April 19, 1999, and the amount which he could have earned had he continued to work between 60 and 72.5 hours per week.
Ms. Alfred argues that were it not for the injuries which she suffered in the accident, Mr. Vyramuthu could have continued working between 60 and 72.5 hours per week as opposed to the 25 to 35 hours he currently works, because he is required to assist in her care. Mr. Vyramuthu indicates that he now works approximately six hours a day, between 9:00 a.m. and 3:00 p.m. but that additional hours would be available to him, particularly in the evenings, if he were not needed at home to care for his wife.
In Gazzola and Canadian Surety Company (OIC A-000324, July 27, 1992), Arbitrator Naylor articulated a three-part test to determine qualification for care benefits under section 7(1)(a) of the Schedule. She held that in order to qualify for care benefits, an Applicant was required to demonstrate that:
The Applicant required and received care as a result of the accident.
A person lost income as a result of caring for the Applicant.
The amount claimed represents the gross income reasonably lost by the person in caring for the Applicant.
I find that when Ms. Alfred was first released from hospital, she required and received extensive care from Mr. Vyramuthu. For a two-year period the Insurer made payments to reimburse Mr. Vyramuthu for the gross income which he lost in caring for Ms. Alfred. The Insurer argues, however, that following that two-year period, Ms. Alfred did not require care to the extent provided by Mr. Vyramuthu. Following an evaluation in June 1996 by Mr. David Wallace, Program Manager of the Canadian Paraplegic Association's Consulting and Rehabilitation Services on behalf of the Insurer, Allstate reduced the amount payable to Mr. Vyramuthu to $113.61, representing 11.83 hours of care per week. Ms. Alfred claims that these hours and the corresponding payments are insufficient to adequately reimburse Mr. Vyramuthu for the time during which he cares for her. Ms. Alfred points out that the evaluation performed by Mr. Wallace was made on the basis of the legislative scheme in place following the enactment of the Schedule which is applicable to this accident. Accordingly, the test employed and the calculation made by Mr. Wallace was based on a different set of criteria from that prescribed by section 7(1). Mr. Wallace responded by indicating that his evaluation would have come to the same conclusions regardless of which legislative scheme was applied.
The Insurer acknowledges an obligation to reimburse Mr. Vyramuthu for the gross income which he has foregone as a result of caring for Ms. Alfred, but disputes the number of hours, and hence the quantum of care provided by Mr. Vyramuthu.
Ms. Alfred relies on the decision in Whitney and Co-operators General Insurance Company (OIC A-001005, March 31, 1993) in which (then) Senior Arbitrator Naylor commented with respect to section 7 benefits that:
The purpose of section 7 is to ensure that the insured can receive necessary care from a spouse or other relative, without fear of financial loss on either part. The wording of the section should be given a broad and liberal interpretation, that best accomplishes this purpose.
I agree with the approach described by Senior Arbitrator Naylor and adopt it in this case. I find it reasonable to assume that had the accident not occurred, Mr. Vyramuthu would have continued the employment pattern which he had established prior to December 30, 1993. As noted above, at that time he was working at two jobs for a total of 60 to 72.5 hours per week. Mr. Vyramuthu also gave evidence of a foregone opportunity to enter into a cartage business with his brother in 1998. He was forced to relinquish this business opportunity after a short time because he would have been required to spend more hours each week outside the home. He felt that Ms. Alfred needed him to provide an ongoing level of care. Mr. Vyramuthu appeared to be caught in a conflict between his own employment interests and his obligations to care for his wife. I found his evidence on this subject forthright and realistic. While he would have liked to be working longer hours to support his family, he recognizes that his wife's needs must be met and that he is solely responsible for providing what he and Ms. Alfred perceive to be an appropriate level of care.
Again, the Insurer argued that Ms. Alfred's expectations of the level of care to be provided by her husband are unrealistic and that she is capable of performing many of the activities which are now the responsibility of Mr. Vyramuthu. Allstate submits that Ms. Alfred is capable of effecting the necessary transfers to and from her bed, toilet, shower and wheelchair without her husband. It also argues that Mr. Vyramuthu is not required to assist Ms. Alfred in entering and exiting the family car, which he now does on a daily basis. Essentially, Allstate submits that Ms. Alfred has developed a dependency on Mr. Vyramuthu which has effectively limited her independence, leaving her entirely reliant on her husband to meet her care needs.
Between August 2, 1996 and January 5, 1997, Mr. Vyramuthu stayed home to care for his wife. Since January 6, 1997, Mr. Vyramuthu has returned to work from approximately 9:00 a.m. to 3:00 p.m. or six hours per day, five days per week for a total of 30 hours per week. For the period August 2, 1996 to January 5, 1997, Ms. Alfred is claiming care benefits at the same level for which they were paid between August 1994 and August 1996, which is $509.75 per week less $113.61, the amount paid by Allstate after August 3, 1996, for a total of $8,715.08. For the period from January 5, 1997 to the date of the hearing, April 19, 1999, Ms. Alfred is claiming that Mr. Vyramuthu lost between 25 and 47.5 hours each week in providing care for her. At his current rate of pay, $10 per hour, over 118.5 weeks, Mr. Vyramuthu lost between $29,625 and $56,287.50 during this period. Allstate paid the sum of $113.61 during these 118.5 weeks for a total of $13, 462.79. Ms. Alfred submits that the amount of Mr. Vyramuthu's actual lost wages is, accordingly, between $16,162.21 and $42,824.71 and that Allstate ought to make up that shortfall.
In order to address a claim under section 7(1), I am required to evaluate and determine a reasonable level of care and then quantify as precisely as possible Mr. Vyramuthu's lost income in providing it. I find that had the accident not occurred, Mr. Vyramuthu would likely have continued to work at two jobs as a restaurant kitchen helper for up to 60 hours per week. He indicated in his evidence, which was substantiated by Ms. Alfred's testimony, that at particularly busy times of the year, such as Christmas or Mother's Day, he was obliged to work more than 60 hours per week. I find it is reasonable to assume that had the accident not occurred, Mr. Vyramuthu would have continued to work from 9:00 a.m. to 4:00 p.m. at one job and from 5:00 p.m. to 10:00 p.m. at the other, for a total of 12 hours per day or 60 hours per week.
In determining a reasonable level of care for Ms. Alfred since her section 7(1) benefits were reduced in August 1996, I must primarily rely on the evidence of Mr. Vyramuthu and Ms. Alfred as to the time spent by Mr. Vyramuthu in caring for her. I also find that Ms. Alfred is independent in many aspects of her own personal care, such as toiletting, bathing and personal grooming. I find that Ms. Alfred's condition during the period from August 3, 1996 and the present has not significantly changed. However, Mr. Vyramuthu continues to provide assistance to her in a number of ways.
Upon his return from work each day, Mr. Vyramuthu and Ms. Alfred take Dalscene to enrichment classes between 5:30 p.m. and 8:30 p.m. Mr. Vyramuthu assists Ms. Alfred to get in and out of the family car and they gave evidence that while their daughter is attending her classes, they go to a mall and shop. Mr. Vyramuthu generally pushes his wife's wheelchair and provides the "escort" that she feels she needs in order to circulate in the community. Later in the evening, the family returns home and Mr. Vyramuthu prepares another meal which is consumed by all. I find that this service is directed to Ms. Alfred's needs as well as those of their daughter.
In addition, each day Mr. Vyramuthu inspects and massages the skin on Ms. Alfred's legs. He also cleans the bathroom following her daily shower and cleans the kitchen after the meals which she has prepared for herself. He strips the bed clothes from the bed and launders it when Ms. Alfred has difficulties with incontinence. On Fridays, Mr. Vyramuthu accompanies Ms. Alfred to religious services at a Hindu temple in Richmond Hill.
I find that these care activities occupy approximately five hours per day, for a total of 25 hours per week, of Mr. Vyramuthu's time. In my view, if not for Ms. Alfred's injuries, Mr. Vyramuthu would have worked during these hours, as he had prior to the accident. Mr. Vyramuthu's hourly rate since January 1997 has been $10 per hour and it is reasonable to assume that his hourly earnings would have been something similar to that had he been working in August 1996. Accordingly, I find that the gross income reasonably lost by Mr. Vyramuthu in providing care for Ms. Alfred since August 2, 1996 is $250 per week. As indicated above, Allstate has paid the sum of $113.61 per week during this time. The amount due for care benefits is, accordingly, an additional $136.39 per week for 140.5 weeks, plus interest in accordance with section 24(4) of the Schedule. Ms. Alfred's claim for care benefits is ongoing. In my view, she will require care at a level similar to that currently being provided by Mr. Vyramuthu. I will, accordingly, order that care benefits in the amount of $250 per week be continued.
Is Ms. Alfred entitled to Medical/Rehabilitation Benefits?
In Schedule "A" to her Application for Arbitration, Ms. Alfred lists a large number of additional items for which she is seeking payment under section 6(1)(e) and (f) of the Schedule.
Sections 6(1)(e) and (f) provide:
The insurer will pay with respect to each injured 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 section (3) for,
(e) home renovations to accommodate the needs of the injured person;
(f) other goods and services, whether medical or non-medical in nature, which the injured person requires because of the accident.
On the second day of the hearing, the Insurer agreed to provide Ms. Alfred with a number of items which had been claimed under section 6(1)(f). These include an exercise program at Variety Village, a back-up wheelchair cushion, a reacher, an electric broom, kitchen roll-about, certain exercise equipment, a membership in the CPA, a driving evaluation and driving lessons. These items are, accordingly, no longer at issue in this arbitration. I will now deal with the remaining items claimed.
In determining whether to uphold a claim for rehabilitation benefits under section 6(1)(f) of the Schedule, I must ascertain whether the following criteria have been satisfied:
It must be a reasonable expense resulting from the accident.
It must be required because of the accident.
A medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the Insurer so requires.
This test was first articulated by Arbitrator Rotter in Plows and Jevco Insurance Company (OIC A-000175 and A-000588, January 16, 1992) which was upheld on appeal by Director's Delegate Richardson (OIC P-000175 and P-000588, May 15, 1992). This interpretation of the requirements of subection 6(1)(f) has been applied many times since and I adopt it for the purposes of this arbitration.
I note that the Insurer in this case has not required that Ms. Alfred provide the signed statement referred to in the third criterion and section 6(4). However, the recommendations upon which Ms. Alfred is relying are included in the expert's reports which were referred to in the hearing.
Accordingly, I must determine whether each of the remaining expenses claimed are reasonable and are required because of the accident.
Home Purchase and Renovation:
Ms. Alfred has requested Allstate's assistance in purchasing and modifying a suitable home to accommodate her disability. She relies upon the decision of MacMaster and Dominion of Canada General Insurance Company (OIC A-006025, October 26, 1994) where Arbitrator Makepeace held that:
If, as a result of the accident, he requires a different and more expensive type of housing than he had before the accident, the necessary expenses fall squarely within paragraph 6(1)(f), to the limits set out in the section.
I find that nothing in section 6 precludes entitlement to the purchase and renovation of a house if it is a reasonable and necessary rehabilitation expense required because of the accident.
In that case, Arbitrator Makepeace made certain findings with respect to the accommodation needs of the injured person. She declined, however, to make any specific order with respect to the issue of housing; rather, she urged the parties to agree on a housing plan. They apparently did so and the housing issue was not revisited.
Ms. Alfred suggests that a similar approach to that in the MacMaster case be taken to the resolution of this aspect of her claim. She indicates that she and her family could afford a house in the range of $150,000 to $160,000 using their own resources and that the cost of a suitable home above that range which would meet her housing needs would qualify as an extraordinary housing expense within the meaning of section 6(1)(f). Ms. Alfred takes the position that the cost of any necessary renovations would fall within the ambit of section 6(1)(e).
In the MacMaster decision, Arbitrator Makepeace made some other comments with respect to the obligations of applicants and insurers on questions relating to the provision of housing. She found that:
The underlying purpose of section 6 is to return the applicant to his or her pre-accident level of function, to the extent that is reasonably possible. Mr. MacMaster is not entitled to receive a "windfall" as a result of his accident. He is not entitled to hold out for a house and accept nothing less. He must be reasonable in working with the Insurer to reach a solution which, while it may not be ideal, is workable and reasonable. Nor is he required to accept a standard of living he would not have accepted before the accident.
One of the options identified by Arbitrator Makepeace in the MacMaster decision is a three-bedroom unit in a co-operative building which is wheelchair accessible or adaptable. She notes that "it appears to me that this option may be worth further investigation by the parties." In the present case, this is precisely the type of accommodation in which Ms. Alfred and her family currently reside.
Ms. Alfred relies on the evidence of Mr. Jeffrey Baum, which is summarized in a report dated May 16, 1994. Mr. Baum, whom I accepted as an expert in the field of housing for people with disabilities, made a number of findings with respect to Ms. Alfred's housing requirements. It must be noted that this report was prepared while Ms. Alfred was still a patient in Lyndhurst hospital and before she moved into her present home. On cross-examination, Mr. Baum conceded that Ms. Alfred's present accommodation met nearly all of the criteria set out in his May 16, 1994 report. The present home does not have an accessible secondary exit or safe waiting area for use in the event of fire and does not have a private bathroom for Ms. Alfred's exclusive use. Mr. Baum was not, however, aware that local firefighting stations who may respond to a call in the building where Ms. Alfred resides have been advised that she is wheelchair-bound and of the location of her particular unit in the building. Nor did I hear any evidence from Ms. Alfred or Mr. Vyramuthu that the absence of a private bathroom for Ms. Alfred was causing any difficulty for the other family members who must share the washroom with Ms. Alfred. Mr. Baum also agreed that the second floor play area, which is wheelchair-accessible, satisfies the criterion in his report for an accessible deck or backyard area. Mr. Baum maintained that additional bedrooms in the home should be large enough for Ms. Alfred to manoeuvre her wheelchair. It would appear that this is not the case in her present home, though on cross-examination, Mr. Baum agreed that this problem may be a function of the size and placement of the furniture in these rooms.
Mr. Baum was of the view that Ms. Alfred required a private washroom containing a wheel-in shower with various grab bars and that a second bathroom for other family members is also required. Mr. Baum further recommended that Ms. Alfred have access to side-by-side front-loading laundry appliances and an intercom system within the unit.
In my view, Ms. Alfred's present accommodation addresses nearly all of the requirements identified in the May 16, 1994 report of Mr. Baum. I will address some additional modifications to the home which he identified as being reasonably required below. The co-op unit presently occupied by Ms. Alfred is wheelchair accessible in every respect and has been modified to a great extent to allow her to make use of the kitchen, living room/dining room, bathroom and master bedroom. Ms. Alfred has also been provided with a personal alarm for use in an emergency. While she is unable to turn her wheelchair around in the two smaller rooms, I find that there is no reason why these rooms could not be made more accessible through a re-arrangement or reduction in size of the furniture in them.
Ms. Alfred gave evidence that she is unable to open the kitchen or bedroom windows and is frightened when the fire alarms go off, as they apparently do several times per month. She, too, was not aware of the notification of her location and circumstances which had been given to the fire stations who might respond to a call in her building.
In my view, on balance, the present accommodations occupied by Ms. Alfred and her family reasonably meet her post-accident needs. While not ideal in every respect, I find that their present circumstances do not warrant the expense of another home and the accompanying renovations which would be required. While Ms. Alfred and Mr. Vyramuthu would prefer to be living in a larger, one-storey, three bedroom and two bathroom bungalow-style home, I cannot agree that such accomodation is reasonably necessary for her treatment or rehabilitation, as is required under section 6(1)(f). In my view Ms. Alfred's present home, with the modifications already made as well as those addressed below, has enabled Ms. Alfred to return as completely as is reasonably possible, to her pre-accident level of functioning. I find that to provide a modified, single-family home to Ms. Alfred would result in a "windfall" to her which is not required under section 6(1)(f) of the Schedule.
Purchase of a Modified Van:
Ms. Alfred has requested that Allstate purchase a modified van for her use, pursuant to section 6(1)(f) of the Schedule, at a cost of $24,875. Currently, Mr. Vyramuthu makes use of a recently-purchased four-door Chevrolet Cavalier to transport Ms. Alfred. Each gave evidence of the difficulty experienced in transfers from wheelchair to the front seat of the car and that Mr. Vyramuthu assists Ms. Alfred in making this transition. Ms. Alfred indicates that the transfer causes her pain in her shoulders and the current family car is uncomfortable for her when she is suffering from back pain. Accordingly, she submits that the purchase of a modified van is reasonable in order to minimize her difficulty with these transfers. She also indicates that a modified van would enable her to transport a power wheelchair or scooter (discussed below) which cannot fit into the trunk of the family's existing car. This in turn would obviate the need for assistance from her husband with folding and stowing her wheelchair.
In 1997, Ms. Alfred indicated to Ms. Toyoko Sameshima of Community Living and Rehabilitation Consultants that she wished to learn how to drive. In her evidence at the hearing, however, Ms. Alfred emphatically stated that she was not interested in learning how to drive at this time, as she is too frightened. Ms. Alfred also stated that she will not ride as a passenger in a car unless her husband is driving. In my view, given Ms. Alfred's stated reluctance to learn to drive, it would not be reasonable to require the Insurer to purchase a van with modified hand controls. At present, any driving would be performed by Mr. Vyramuthu, who does not require hand controls.
Ms. Alfred and Mr. Vyramuthu gave evidence of their daily routine, which includes a trip using the family car to a shopping mall while Dalscene is taking enrichment classes. Ms. Alfred testified that the transfers to and from the vehicle are difficult for her, and she requires her husband's assistance in accomplishing them and stowing her wheelchair. I cannot agree, however, that the provision of a modified van would significantly enhance Ms. Alfred's ability to travel or would assist in returning her to her pre-accident level of functioning. She indicated an extreme reluctance to leave home without her husband and I find that the provision of a modified van would do nothing to change this. In my view, Ms. Alfred's ability to get around independently would not be enhanced by the provision of a modified van. Mr. Vyramuthu would still be required to drive the vehicle and accompany Ms. Alfred. Accordingly, I find that this expense is not reasonably necessary at the present time to assist in her rehabilitation or treatment.
Other Medical/Rehabilitation Claims:
Replacement Wheelchair
Ms. Alfred has also requested that her five-year-old wheelchair be replaced. Mr. Mike Ferrante, Allstate's Claims Manager, testified that the wheelchair is subject to a service agreement with a company called Motion Specialities. Mr. Ferrante indicated that he expected that when a new wheelchair was required, he would be so advised by Motion Specialities and that Allstate would provide the necessary funding for a replacement. Mr. David Wallace, who gave evidence on behalf of Allstate as an expert with respect to rehabilitation issues, indicated that for a light user such as Ms. Alfred, a wheelchair is normally expected to last for five years.
Ms. Alfred demonstrated that the arms of the chair are no longer attached to the frame and that the armrests have worn down and are now attached using electrical tape. She also indicated that the front wheels of the chair no longer function properly. I find that Ms. Alfred's current wheelchair has outlived its useful life and ought to be replaced. I agree that a new wheelchair is reasonably necessary for Ms. Alfred's rehabilitation and treatment and I order that the Insurer provide her with one.
Power Scooter
Ms. Alfred has also requested that the Insurer provide funding for the purchase of a power scooter which would allow her to independently travel longer distances without the assistance of her husband. Ms. Sameshima indicated that a power scooter would enable Ms. Alfred to independently travel in her community and may foster a greater sense of independence in her. In her testimony, however, Ms. Alfred expressed her extreme reluctance to independently leave her home for any reason. I was not provided with any evidence which would demonstrate that she would, in fact, make use of a power scooter to get around her community. Similarly, I was not provided with any evidence that Ms. Alfred currently uses her wheelchair to travel any significant distances, other than in her daily visits to the shopping mall with her husband.
While I agree that Mr. Vyramuthu should not be required to push the wheelchair at all times, I am not satisfied, based on the evidence before me, that a power scooter is reasonably necessary for Ms. Alfred's rehabilitation and treatment. I find that it is unlikely that Ms. Alfred would make use of a power scooter to become more independent given her present state of mind.
Accordingly, I find that the Insurer is not required to provide funding for a power scooter at this time.
Additional Home Modifications
Ms. Alfred has also requested that the Insurer provide funding for the installation of a wheel-in shower and a shower commode chair to eliminate the need for the transfers from bed to wheelchair to shower seat. With the use of this modification and device, Ms. Alfred would be able to transfer from bed to the shower commode, go directly into the shower and then to her wheelchair, thereby saving at least two of these difficult transfers. I find that this expense is reasonably necessary to assist Ms. Alfred in her daily routines and to facilitate greater independence and ease for her in performing her personal grooming activities. Ms. Alfred has also requested the installation of an overhead bed bar. I find that this device would assist her in effecting the necessary bed-to-wheelchair transfers. Ms. Alfred gave evidence of her problems with balancing herself on the bed while preparing to transfer to her wheelchair. In my view, an overhead bed bar would provide her with the necessary stability to effect this transfer more safely and easily.
Ms. Alfred is seeking the provision of an electric bed with a heating unit. I was not provided with any evidence that Ms. Alfred's back pain is exacerbated by the cold or that treatment with heat alleviates that condition. I cannot agree that this expense is reasonable in light of the dearth of evidence tendered on this issue.
Ms. Alfred is also seeking an electric lift chair which would enable her to change her sitting position automatically and to elevate her feet in order to reduce the swelling in her legs. Currently, she remains in her wheelchair all day and must lie down in bed if she wishes to elevate her feet. Again, other than the recommendation of Ms. Sameshima, I have not been provided with any medical evidence to substantiate the therapeutic value of this device. I am not, accordingly, satisfied that the provision of such a chair would assist in Ms. Alfred's treatment or rehabilitation.
A claim has also been forwarded for an intercom system to be installed in Ms. Alfred's home so that she would be able to communicate with other family members in other rooms in the apartment. In my view, given the size of the unit she presently occupies and Ms. Alfred's level of mobility with her wheelchair, an intercom system connecting rooms in the apartment is not reasonably necessary for her treatment or rehabilitation. Again, I find that I was not provided with sufficient evidence to substantiate this aspect of Ms. Alfred's claim.
Finally, Ms. Alfred has requested funding for the services of a case manager, a Tamil-speaking psychologist, a counsellor with the CPA and a pain management course. While I have been provided with contradictory evidence as to Ms. Alfred's willingness to enter into counselling or therapy, I am of the view that if she is willing to do so, these programs may very well assist her in becoming more independent and better adapted to her disability. Ms. Alfred is now completely isolated from her community and is entirely dependent upon her husband for all of her interaction with the world beyond her immediate family. While the choice to embark upon a course of treatment must be hers, I find that it is reasonable that the Insurer be required to expend the necessary funding to allow her to do so. In my view, the payment of each of the items enumerated above, or any of them, particularly the services of a case manager, may very well assist Ms. Alfred in improving the quality of her life.
Is Ms. Alfred entitled to a Special Award?
Ms. Alfred submits that she is entitled to a special award under section 282(10) of the Insurance Act on the basis that Allstate unreasonably withheld or delayed payments to her. This section states:
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Ms. Alfred submits that because section 13 benefits were only paid for 155 weeks, when it was clearly the intention of the insurer to pay these benefits for 156 weeks, Allstate is in breach of its obligations to her and unreasonably withheld the final week's payment. Ms. Alfred also sets out what she describes as a "pattern of late agreement to reasonable requests in this case." As noted above, Allstate agreed to pay a number of less-expensive expense items claimed under section 6(1)(f) only at the second day of the hearing, rather than at the time they were first advanced and then mediated in 1997.
Ms. Alfred also relies on a letter to her dated December 6, 1996 wherein Mr. Ferrante of Allstate informed her that no claims for further medical/rehabilitation expenses would be honored, with the exception of medical supplies, under section 6(1). Ms. Alfred properly points out that ". . . there is nothing in the Schedule that permits the insurer to discontinue all s[ection] 6 benefits, with the exception of medical supplies, before the 10-year period has been reached . . ."
Finally, Ms. Alfred submits that Allstate was unreasonable in relying on Mr. Wallace's report with respect to the payment of care benefits under section 7. She suggests that Mr. Wallace's report was flawed in that it relied upon the wrong test and that his calculations were incorrect.
Allstate objects to the inclusion of the issue of a special award in the circumstances of this case. It submits that it only received notice of a claim for a special award on the first day of the hearing and that it was not afforded the opportunity to prepare the necessary arguments in response. On the contrary, as written submissions were exchanged following the conclusion of the hearing, I find that Allstate had ample opportunity to consider its arguments against a special award, and did so in its written submissions.
In Erickson and The Guarantee Company of Canada (OIC A-000560, June 2, 1992), Arbitrator Rotter held that in order for conduct of an insurer to be considered "unreasonable":
...it need not amount to willful misconduct or bad faith. On the other hand, it has to be more than erroneous, or a simple error of judgement. It must be conduct which departs from what is sensible or fair.
In my view, the Insurer may have made an error in judgement in the way in which it processed the section 6 and 7 claims submitted by Ms. Alfred. However, I have not been provided with any evidence to indicate that its conduct was such that it departs from what is sensible or fair. Rather, in the circumstances of this claim, which was complex and multifaceted from the beginning, I find that the Insurer made a reasonable effort to comply with its obligations under the Schedule.
I find that some of Allstate's actions may have been ill-considered, particula rly with respect to its approach to the section 6(1)(f) items which were claimed and ultimately agreed to at the hearing. However, I do not view this as an appropriate case for a special award.
EXPENSES:
The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Ms. Alfred's expenses of this arbitration proceeding may now be addressed.
June 1, 1999
Donald Hale Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 98
FSCO A98–000559
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOYCE ALFRED
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Alfred is entitled to weekly income benefits under section 13 of the Schedule from December 26, 1996 and ongoing at the rate of $185 per week.
Ms. Alfred is entitled to care benefits under section 7(1)(a) of the Schedule and ongoing at the rate of $250 per week.
Ms. Alfred is entitled to the cost of a new wheelchair, shower modifications, a shower commode, an overhead bed bar and fundin g for the services of a case manager, a Tamil-speaking psychologist, a counsellor with the CPA and a pain management course under section 6(1)(f) of the Schedule.
The issue of expenses may now be spoken to.
Ms. Alfred is entitled to interest on any overdue payments in accordance with section 24(4) of the Schedule.
Ms. Alfred is not entitled to a special award under section 282(10) of the Insurance Act.
June 1, 1999
Donald Hale Arbitrator
Date