Neutral Citation: 2000 ONFSCDRS 113

FSCO A99-000598

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MOLLY R. PERSOFSKY

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

K. Julaine Palmer

Heard:

April 17, 18, 19, 20, and 26, 2000, at the Financial Services Commission of Ontario, Toronto.

Appearances:

Frank J. Burns for Mrs. Persofsky

Shawn H. Patey for Liberty Mutual Insurance Company

Issues:

Molly Persofsky was injured in a motor vehicle accident on March 18, 1992. She received statutory accident benefits from Liberty Mutual Insurance Company (Liberty Mutual), payable under the Schedule.¹ The parties were unable to resolve their dispute about Mrs. Persofsky's entitlement to certain benefits through mediation, and Mrs. Persofsky applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Under subsection 6(1)(f) of the Schedule,

1. Is Mrs. Persofsky entitled to expenses for housekeeping and home maintenance services claimed to have been provided by Wendy Persofsky to May 14, 1998? The amount claimed is $49,573.10.

2. Is Mrs. Persofsky entitled to ongoing assistance for housekeeping and home maintenance services of 20 hours per week?

3. Is Mrs. Persofsky entitled to the services of a handyman and gardener?

Under subsection 7(1)(a) of the Schedule,

4. Is Mrs. Persofsky entitled to expenses for care claimed to have been provided by Wendy Persofsky to May 14, 1998? The amount claimed is $53,755.43.

5. Is Mrs. Persofsky entitled to expenses for a full-time professional caregiver?

Under subsection 6(1) of the Schedule,

6. Is Mrs. Persofsky entitled to an electric wheelchair, scooter, electrically-operated bed, swimsuit, home modifications to accommodate a wheelchair lift, and modifications to her motor vehicle as reasonable expenses resulting from the accident?

7. Is Mrs. Persofsky entitled to the expense of a weight reduction program, as recommended by an occupational therapist in a report dated November 19, 1998 as a reasonable expense resulting from the accident?

8. Is Mrs. Persofsky entitled to the expense of $8,365.26 for the assessments and reports of Network Canada?

9. Should Liberty Mutual pay a special award, pursuant to subsection 282(10) of the Act, because it unreasonably withheld or delayed payments to Mrs. Persofsky?

Each party claims the other should pay its expenses in respect of the arbitration, pursuant to subsection 282(11) of the Act. Mrs. Persofsky also claims interest on any amounts owing.

Result:

1. Liberty Mutual Insurance Company shall pay Molly Persofsky $320 per week from October 1, 1992 to December 31, 1997 for the gross income reasonably lost by Wendy Persofsky as a result of the accident in caring for Molly Persofsky

2. Liberty Mutual Insurance Company shall pay Molly Persofsky $352 per week from June 15, 1992 to September 30, 1992 and from January 1, 1998, ongoing, as the reasonable cost of a professional caregiver for the care she requires as a result of the accident.

3. Liberty Mutual Insurance Company shall pay Molly Persofsky $160 per week from May 8, 1992 to September 30, 1992 and from January 1, 1998, ongoing, for housekeeping services which she requires because of the accident.

4. Liberty Mutual Insurance Company shall pay Molly Persofsky interest on $160 per week of the amounts in paragraph 1 from June 8, 1992 and on the remainder of the amounts in paragraph 1 and 2 from June 20, 1998. Liberty Mutual Insurance Company shall pay interest on the amount in paragraph 3 from June 8, 1992. Interest is payable at the rate of 2 per cent per month, according to the provisions of section 24(4) of the Schedule.

5. Liberty Mutual Insurance Company shall pay Molly Persofsky $700 per year for miscellaneous handyman chores, under the provisions of subsection 6(1)(f) of the Schedule.

6. Liberty Mutual Insurance Company shall pay Molly Persofsky $6,000 for an electrically-operated bed; $102.35 for a swimsuit; the amount required for an electric wheelchair or motorized scooter and batteries, estimated at $3,600; $6,000 for an interior chair lift and $100 for maintenance of the chair lift, annually; $400 for a driving assessment; $13,038.99 for a residential weight reduction program plus transportation costs and $1,630 for a consulting nutritionist once weekly for one year; and $8,365.26 for the services of Rehabilitation Network Canada.

7. Liberty Mutual Insurance Company shall pay Molly Persofsky interest on the amounts set out in paragraphs 5 and 6, as provided in subsection 24(4) of the Schedule. The interest on the services of Rehabilitation Network Canada runs from December 29, 1998.

8. Liberty Mutual Insurance Company shall pay Molly Persofsky a special award under section 282(10) of the Schedule of 40 per cent of the amounts to which she is entitled for housekeeping and for care as of this date, together with interest on all amounts owing to her (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. On the swimsuit claim, Liberty Mutual shall pay a special award of 50 per cent. On all other amounts owing, Liberty Mutual shall pay a special award of 30 per cent.

9. Liberty Mutual Insurance Company shall pay Molly Persofsky her reasonable expenses of this arbitration, as agreed or assessed.

EVIDENCE AND ANALYSIS:

Background

The nerves in Molly Persofsky's right shoulder and arm were damaged during her birth, leaving her with a shortened right arm and minimal use of her right hand. Consequently, throughout her lifetime she has used her left arm and hand for everything. Unfortunately, in the motor vehicle accident of March 18, 1992 the rotator cuff of Mrs. Persofsky's left shoulder was torn, resulting in a painful and severe disability of her left arm. Mrs. Persofsky also suffered a soft tissue injury to her low back in the accident.

Since 1973, Mrs. Persofsky has been a single parent, raising a son and a daughter, born in 1961 and 1964, respectively. Mrs. Persofsky's daughter, Wendy Persofsky, still lives in her mother's home. In 1981, after being out of the workforce for over twenty years, Mrs. Persofsky returned to higher education, at age 42, graduating in December 1983 with a diploma in computer programming and systems analysis and design from Seneca College. After her graduation, Mrs. Persofsky worked as a computer installation and support supervisor for the head office of Shoppers Drug Mart. She had been employed by Shoppers for eight years at the time of the accident and directed the work of 14 pharmacy system trainers and support representatives.

Since the motor vehicle accident, Liberty Mutual has paid Mrs. Persofsky weekly income benefits of approximately $148.30 per week. The majority of her income comes from a group insurance disability insurer and disability benefits of the Canada Pension Plan. Liberty Mutual does not dispute Mrs. Persofsky's entitlement to weekly income benefits. This arbitration involves only claims for supplementary medical, rehabilitation and care benefits under Part III of the Schedule.

Liberty Mutual asked Dr. Ernest J. White, an orthopaedic surgeon, to evaluate Mrs. Persofsky in October 1992 and March 1994. Dr. White called Mrs. Persofsky's problems "genuine" and was initially not optimistic that she would recover to her pre-accident state. By March 1994, he felt her residual difficulties were likely permanent. In March 1995, August 1996, and July 1997 Dr. R. Peter Welsh, an orthopaedic surgeon with a special expertise in shoulder injuries, conducted insurer's examinations of Mrs. Persofsky at Liberty Mutual's request. In his first report, Dr. Welsh concluded that:

one must recognize that she sustained a permanent serious injury to her left shoulder. This has totally compromised her lifestyle and will be a permanent limitation to her. She is unlikely ever to return to gainful work in any capacity and even activity in day to day living will be permanently limited.

In his second and third reports, Dr. Welsh also indicated that it was evident that Mrs. Persofsky had continuing "major limitations" resulting from the motor vehicle accident. In 1996, he concluded that she was "barely capable of living independently, and would not one feels probably manage were it not for the fact that she has a daughter living with her." By July 1997, he found more crepitus in her shoulder and the rotator cuff function more impaired. He did not recommend surgery to her shoulder.

In 1998 and 1999, Dr. I. Grosfield, orthopaedic surgeon, examined Mrs. Persofsky after Liberty Mutual's request for an insurer's examination. He reiterated Dr. Welsh's conclusion that her restrictions and limitations were permanent. By 1999, Dr. Grosfield concluded that Mrs. Persofsky had developed a "frozen left shoulder with minimal glenohumeral movement."

Failure to Mitigate

Liberty Mutual raised an argument relating to mitigation in Mrs. Persofsky's case. It contends that given Dr. Robin Richards' opinion in 1992, it was not reasonable for Mrs. Persofsky to have refused surgery on her shoulder. Liberty Mutual submits that since Mrs. Persofsky claims she cannot do much with the left arm in any event, she should have accepted what it says were "overwhelming odds" that surgery would have improved her condition or at least left her functioning the same. Liberty Mutual submits that it should not have to pay because Mrs. Persofsky has developed a frozen shoulder. Liberty Mutual makes the same argument with respect to the psychotherapy proposed by Dr. Bail. Liberty Mutual submits that if Mrs. Persofsky had entered into the course of psychotherapy as recommended, she would not be in the same state today.

Dr. Robin Richards was the shoulder specialist that examined Mrs. Persofsky initially in late May, then August 1992. At the outset, Dr. Richards thought Mrs. Persofsky had developed chronic rotator cuff tendinitis. He injected the subacromial space with Marcaine and steroid. This did not improve her symptoms. Neither did physiotherapy. By August, Dr. Richards recommended a shoulder arthrogram to see whether or not she had a full thickness tear of her rotator cuff tendon.

Mrs. Persofsky described the arthrogram at the hearing. It caused her unbearable pain. Dr. Richards described it as "apparently technically difficult." As far as he could tell, she had a rotator cuff tear. He wrote in his consultation note to Mrs. Persofsky's family doctor as follows:

I told her that since she did not respond well to cortisone, the odds of a significant improvement with surgery would be, at best, in the 75% range.

Because of her problem on the opposite arm, she would require treatment in a rehabilitation hospital postoperatively. I explained to her that the complication rate following surgery was 2-3%, and that the recovery time is a full three months. This lady does seem significantly disabled. She will think things over.

Mrs. Persofsky returned to see Dr. Richards on November 18, 1992. He found evidence of significant impingement of Mrs. Persofsky's left shoulder. "I once again discussed the pros and cons of surgery with Molly. Clearly, she is sufficiently disabled that surgery might be considered."

Dr. Darrell Ogilvie-Harris, orthopaedic specialist, testified at the hearing. He examined Mrs. Persofsky on October 26, 1998 and again in November 1999. He testified about a special study, in which he was involved, which measured the results of rotator cuff surgery on single-armed individuals. Of a sample of 13 individuals, ten had a bad result after surgery. He concluded that because of the high stresses on a single residual arm, the tissues cannot be successfully repaired. In his opinion, the odds were greater than 50 per cent that Mrs. Persofsky would be worse after the surgery. He would advise her not to have the surgery, as long as she can still use her left arm to some extent.

I received no evidence as to the amount of improvement Mrs. Persofsky could have expected in her left arm and shoulder movement had the surgery been successful. Mrs. Persofsky clearly was concerned about being left with two almost totally functionless arms, should the surgery turn out badly. Further she had a 22-23 per cent chance, according to Dr. Richards, of having no improvement whatsoever despite the surgery, after enduring a period of recuperation of about three months, when she would be quite helpless. Dr. Baruch Ehrlich, Mrs. Persofsky's family doctor since 1986, testified that the decision to undergo surgery was clearly a matter of personal choice for Mrs. Persofsky, especially in the light of her severe disability to her right arm. He noted that none of the orthopaedic specialists had really recommended surgery, for fear of making her worse. He thought that her refusal of surgery was reasonable.

The concept of mitigation, on which Liberty Mutual is relying, is not addressed in this Schedule of statutory accident benefits as it is in section 73 of the successor accident benefits schemes established under Bill 164 (Ontario Regulation 776/93, as amended) and sections 55 and 56 of Bill 59 (Ontario Regulation 403/96, as amended). The Director of Arbitrations in the Provenzano and Metropolitan Insurance case² questioned whether she could "read into a no-fault insurance concept a contractual principle and require claimants to overcome an additional hurdle if they are prima facie entitled to income benefits under the Schedule." In this case, we are concerned with supplementary medical and rehabilitation benefits, not entitlement to weekly income benefits, which continue to be paid. In the more recent case of Thompson and Peel Mutual Insurance Company³ Director's Delegate Naylor considered the question of mitigation again. In that case, she found that the arbitrator considered Mrs. Thompson's rehabilitation efforts as relevant evidence in determining whether she was disabled within the meaning of s. 12(1) and s. 12(5)(b) of the Schedule.

In any event, whether or not the concept of mitigation has been imported into the statutory accident benefits scheme of this Schedule, in my view of this case, the mitigation argument is not well founded. I agree with Dr. Ehrlich and Dr. Ogilvie-Harris that in Mrs. Persofsky's situation, as a person already suffering from a significant impairment, given the odds presented to her, it was reasonable for Mrs. Persofsky not to submit to shoulder surgery.

In his report of June 21, 1994, Dr. Monte Bail, psychiatrist, recommended to Liberty Mutual that Mrs. Persofsky would be "an excellent candidate for weekly psychotherapy. As well, I believe that she would benefit from enrollment in a pain management program, specifically one which offered education and understanding on the principles of pain." At this time, Liberty Mutual engaged Debra O'Sullivan of Herrold and Vernon Disability Management. Ms. O'Sullivan met with Dr. Ehrlich, who did not feel Mrs. Persofsky needed a referral to a psychiatrist at the time.⁴According to the adjuster's notes of March 2, 1995, Dr. Ehrlich had approved a rehabilitation program for Mrs. Persofsky and the adjuster gave her approval that the rehabilitation consultant should arrange this. A comprehensive rehabilitation program for Mrs. Persofsky was never arranged. She was only assisted in enrolling in an aquatic fitness class sponsored by the Arthritis Association. Liberty Mutual submits that if Mrs. Persofsky had pursued the psychotherapy treatment recommended by Dr. Bail in 1994, that she would not require the supplementary medical and rehabilitation benefits she claims in this arbitration. I find no evidence in support of this submission.

Care Benefits, Housekeeping & Home Maintenance

The Law

In this Schedule of statutory accident benefits (in effect for accidents which occurred from June 20, 1990 to December 31, 1993) an insurer must pay "all reasonable expenses resulting from the accident" for a variety of medical, psychological and "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident." The maximum amount payable under section 6 is $500,000. The benefit period is ten years from the day of the accident. Before making a payment for an expense under subsection 6(1) of the Schedule, an insurer may require the insured person to submit a signed statement from her medical practitioner or psychologist "stating that the expense is necessary for the insured person's treatment or rehabilitation."

In addition, under section 7 of the Schedule, an insured person is entitled to the care she requires as a result of an accident. That care covers the "reasonable cost of a professional caregiver" or "the amount of gross income reasonably lost by a person ... as a result of the accident in caring for the insured person." In addition, "all reasonable expenses resulting from the accident in caring for the insured person after the accident" are covered. The maximum amount payable per month for care under section 7 is $3,000 with a lifetime maximum of $500,000.

Liberty Mutual's counsel admitted at the outset of this arbitration that there was "absolutely no dispute" that Mrs. Persofsky had suffered a "rotator cuff tear" in the motor vehicle accident of March 18, 1992. However, Liberty Mutual contends the shoulder injury is Mrs. Persofsky's sole residual physical problem arising from the accident. Liberty Mutual submits that she suffers from mobility problems due to her increased weight and osteoarthritis in her knees, but that these conditions are not causally related to the accident. Liberty also alleges Mrs. Persofsky's psychological problems pre-date the accident. It also submits that Wendy Persofsky's presence in the home is one reason it has been "very difficult for Liberty Mutual to do anything."

In my view, in making this submission, Liberty Mutual has failed to note that in the Schedule under consideration, an "accident" is defined as "an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury ..." [emphasis added]. I have accepted that Mrs. Persofsky suffered both painful shoulder and low back injuries in the accident. I accept that her pain has made her less active and largely confined her to her home. Mrs. Persofsky's inactivity, confinement, and increased reliance on take-out food has contributed to her increased weight. I find this condition has resulted indirectly from the accident. According to Dr. Bernard J. Woolford, the orthopaedic specialist to whom Mrs. Persofsky was sent because of her knee pain, Mrs. Persofsky's osteoarthritis of her knees and residual back problems are "not resolving partly because of her weight problem."

Liberty Mutual's suggestion that Wendy Persofsky's presence in her mother's home has been an impediment to Liberty Mutual doing something about Mrs. Persofsky's situation reflects a flawed view of how Liberty Mutual has responded to Mrs. Persofsky's impairments since the 1992 accident. In my view, Liberty Mutual never properly implemented its role as Mrs. Persofsky's statutory accident benefits insurer. It is apparent on a review of the adjuster's notes and some of the health professionals' assessments that Mrs. Persofsky's claim has been adjusted throughout as if it were a third party claim, not the claim of one of its own insureds for first party statutory accident benefits. From the outset, Liberty Mutual has vacillated between sitting and waiting for Mrs. Persofsky to present claims for accident benefits and wanting to become actively involved in directing her rehabilitation. Mostly it sat and waited.

When Liberty Mutual did finally appoint a disability consultant, Debra O'Sullivan-McCrory of Herrold & Vernon, in August 1994, 29 months after the accident, it instructed her to "arrange for the psychotherapy and pain management programme per Dr. Bail's recommendations and help her to overcome her problems and return to work force. [sic]" On the same day, Liberty wrote to Dr. Ehrlich, Mrs. Persofsky's family doctor, enclosing a copy of Dr. M. Bail's psychiatric assessment. Liberty told Dr. Ehrlich that they had referred Mrs. Persofsky's file to Herrold & Vernon Disability Management Inc. "to arrange for psychotherapy and pain management programme. They will be in touch with to discuss. [sic]." This example shows Liberty Mutual taking an active role in Mrs. Persofsky's rehabilitation.

The disability consultant took the initiative to arrange Mrs. Persofsky's initial examination by Dr. Peter Welsh in March 1995. However, it would appear that no definitive action was taken to fully address the medical aspects of Mrs. Persofsky's disability and resulting impairments for many months thereafter. For example, no occupational therapy assessment was carried out until November 29, 1995. Ultimately, the disability consultant was dismissed on January 9, 1997 because Liberty Mutual wanted to discuss settling Mrs. Persofsky's claim with her. When Mrs. Persofsky attended Liberty's office on February 26, 1997 and declined to even discuss settlement, inexplicably, the disability consultant was never reinstated.

Meanwhile Mrs. Persofsky was left in an untenable situation. She was not offered any care, housekeeping or home maintenance services by Liberty Mutual, except lawn mowing and snow removal, which she paid for herself and was then reimbursed. Mrs. Persofsky was heavily reliant on her daughter in all aspects of her activities of daily living. Although she clearly was not satisfied with her situation and the environment in which she lived, Mrs. Persofsky was fearful of alienating her daughter by being critical or by being perceived as overly demanding. From the reports and testimony of Dr. Stephen Connell, the treating psychiatrist of both mother and daughter, it is apparent that Mrs. Persofsky's increasing dependence on Wendy Persofsky has had a deleterious effect on Wendy's mental health and contributed to her need for psychiatric care. Wendy Persofsky's physical health has also been affected by her caregiving activities. According to the report of Rehabilitation Network Canada Inc., dated November 19, 1998, Wendy Persofsky injured herself in September 1997 while attempting to assist her mother, for which she was treated with physiotherapy.

In my opinion, Liberty Mutual should have provided Mrs. Persofsky with information about the statutory accident benefits available to her. Once it knew the serious and permanent nature of her injuries from the accident, it should have entered into a long term partnership with her and her family doctor to provide the supplementary medical, rehabilitation and care benefits for which Mrs. Persofsky was insured. It simply was totally unfair and unjustified in leaving Mrs. Persofsky in her home without any support except that of her daughter and taking advantage of both Mrs. Persofsky and Wendy Persofsky in that manner.

Liberty Mutual was aware of the situation from early days. Dr. White reported, as early as October 1992, that Mrs. Persofsky's daughter was doing the housework. Rita Borden, a claims supervisor noted on June 3, 1993 "Daughter who is 27 off work now so helps her out all the time and lives there." On February 23, 1995 the claims examiner noted, "She relies on her daughter for ADL's [activities of daily living]." On April 18, 1995 after reviewing the insurer's examination, the claims examiner noted that "Daughter helps with housework, dressing showering ... Opinion incapable of ANL's [activities of normal life]- No guarantee with surgery - never will return to work - totally disabled." By September 26, 1995 when a senior claims person reviewed Mrs. Persofsky's file, she noted: "This clmt [claimant] is in very bad shape both physically & psychologically... Clmt was a well motivated individual ... clmt out of school over 20 yrs when she went back..." On October 25, 1996, the same senior claims' person wrote: "This is another one where the motor vehicle accident was the straw that broke the claimant's back."

I find that Wendy Persofsky reasonably lost income as a result of caring for her mother after the accident. The evidence shows that Wendy Persofsky left her job at Goodman's China in September 1992. I find she was earning $8.00 per hour, or approximately $1,385.60 (gross) per month at that employment, which was, according to her testimony, less than she had earned at some other jobs previously. I find she lost this income as a result of caring for her mother. I further find that Wendy Persofsky had a consistent work record, with sporadic changes of employment and intermittent periods between jobs, from her graduation from high school more than eight years before the accident. I find that it is probable that she would have continued in similar employment had her mother not required so much assistance.

The claim for care provided by Wendy Persofsky extends from June 30, 1992 to May 14, 1998. My understanding is that the end date conforms with the date of an Application for Additional Accident Benefits submitted by Mrs. Persofsky, a note signed by both Mrs. Persofsky and her daughter, and a short letter provided by Dr. Ehrlich. The adjuster's file records that this claim was received on May 20, 1998 and denied on June 17, 1998 as not being reasonable or necessary.

From the oral testimony of Ms. Eugene Rhoden, Mrs. Persofsky's homecare service worker, and the notes of North York Community Care workers, it is evident that by the time of their involvement, beginning in December 1997 and early 1998, Wendy Persofsky was no longer providing a consistent, adequate level of assistance in either care or homemaking assistance. I find that this inadequacy had been developing gradually over time.

Carol MacDonald, an occupational therapist, who visited Mrs. Persofsky eight times from November 29, 1995 until April 3, 1996, mentioned in her first report that the home was "extraordinarily cluttered" but did not address cleaning and homemaking skills early in her treatment. In her report of April 11, 1996, Ms. MacDonald wrote that "Cleaning and homemaking skills have not yet been addressed. This will be one of the goals in the latter stages of her Occupational Therapy treatment sessions." However the two or three more sessions Ms. MacDonald recommended were reduced to one session. From this inaction, I infer that, although "cluttered," the home was not a "disaster," as Ms. MacDonald characterized it in her oral testimony, almost five years later.

Sadly, from Dr. Connell's evidence, it appears Mrs. Persofsky's heavy reliance on Wendy Persofsky exacerbated Wendy's obsessive compulsive disorder, which eventually led to Wendy's inability to reasonably care for her mother. Accordingly, from January 1, 1998, I find that it is unreasonable to calculate the care benefits for Mrs. Persofsky by calculating the "gross income reasonably lost by a person ... as a result of the accident in caring for the insured person" as paragraph 7(1)(a) provides.

From that date, ongoing, and for the period from June 15, 1992 to September 30, 1992,⁵ I find that Liberty Mutual should pay "the reasonable cost of a professional caregiver" for the care Mrs. Persofsky required as a result of the accident. I find that Mrs. Persofsky requires assistance to dress her upper body, as a result of her left shoulder injury. I find that she requires assistance to dress her lower body, both as a result of her left shoulder injury and her low back injury. I find that Mrs. Persofsky requires assistance with grooming, including shampooing, drying, combing and styling her hair, and with the care of her fingernails and toenails. I find she requires some assistance or supervision in negotiating the stairs in her home.

I find that Mrs. Persofsky requires help with basic hygiene including bathing, drying, and applying creams, lotions, and powders for her skin care. Although she usually has been managing (unsatisfactorily) on her own, I find Mrs. Persofsky requires assistance with toiletting, at least until a satisfactory system to clean and dry herself independently after using the toilet can be installed. Mrs. Persofsky also requires assistance in preparing and hanging her clothing. She requires some assistance in managing her financial affairs, where matters cannot be reasonably carried out over the telephone.

The care Mrs. Persofsky requests was not set out in detail as to the required number of minutes per day for each individual task. The material filed provided weekly estimates. I find that Mrs. Persofsky requires care on a seven days per week basis. The care can be provided somewhat intermittently, in that although Mrs. Persofsky requires an attendant to help her dress in the morning and to undress in the evening, there are times during the day when she can be reasonably independent, provided the toiletting issue is addressed immediately. I accept Dr. Ehrlich's opinion that Mrs. Persofsky does not require an attendant overnight. When she is not able to drive herself, I find it reasonable that seven hours per week should be allowed for driving Mrs. Persofsky to various appointments, treatment sessions, aquatherapy and other destinations and assisting her while there. I find no hesitation in granting the request for 22 hours per week of professional caregiving. This should be paid at the rate of $16.00, which is a rate that Mr. Martino and Ms. Abbot, rehabilitation experts presented by each party, both indicated was reasonable.

Housekeeping

Mrs. Persofsky also requests housekeeping services of 20 hours or $160 per week be paid, in addition to the care benefits. She produced a detailed list of housekeeping services claimed to have been performed by Wendy Persofsky over the period June 30, 1992 to May 14, 1998. The list was produced in 1998 in consultation with her lawyer's assistant. I find it is difficult to strictly separate housekeeping services from care services, particularly when both are provided by the same person, and that person is a family member. For example, laundry service and bedmaking could be said to fall under both categories.

Mrs. Persofsky lives in a split level home, with three bathrooms and a yard. She has a dog, who requires feeding and outdoor exercise. Mrs. Persofsky testified that she enjoyed decorating her home with house plants in the past. She also enjoyed gardening and had over 30 rosebushes outside her patio doors. When she was working, she testified that she personally cleaned her house on weekends, to a standard of which she could be proud. She painted and wallpapered interior walls. She presented some old family photographs showing the interior of her home, in support of this testimony.

I find because of the disability to her left shoulder as well as the injury to her low back, suffered in the accident, that Mrs. Persofsky has not been capable of carrying out her housekeeping tasks since the date of the accident.

Liberty Mutual has been aware that Mrs. Persofsky could not carry out her housekeeping since very early in the history of this claim. On May 8, 1992 Beaulah Beckles, a Liberty Mutual adjuster, noted that she had received Mrs. Persofsky's medical forms back from her. Ms. Beckles also wrote:

"INSD IS NOT MAKING A CLAIM FOR WAGES STILL TRYING TO WORK. SHE CANNOT DO HER HOUSEWORK IS PAYING SOMEONE TO COME IN & HELP DO THIS."

There is no indication in Liberty Mutual's notes that Ms. Beckles, or anyone else from the insurer, ever informed Mrs. Persofsky that she could be entitled to homemaking services, if she was unable to do this herself as a result of her injuries from the accident. Mrs. Persofsky, herself, testified that she was not aware that housekeeping services could be provided for her under the Schedule. When asked in cross-examination, she did not recall submitting a single expense characterized as "cleaning" to Liberty Mutual for $69.55 in March 1993. Liberty Mutual was not able to produce any document relating to that expense, apart from the adjuster's computer note. Neither was anyone called to testify about it. It is not clear to me that this item related to housekeeping services and I do not find that it was.

Ms. Helen Wong, O.T., and Mr. Martino's reports do not distinguish between the hours that would be provided by a homemaker, a home care worker or an attendant care provider. The report simply concludes that Mrs. Persofsky requires a full-time person, and that translates to 40 hours per week. At $16.00 per hour that amounts to some $2,771.00 per month.

On the other hand, Ms. Jody Abbot, R.N., who was retained by Liberty Mutual to prepare a future care costs analysis, is of the view that Mrs. Persofsky could be supported by "family assistance and support" for one hour daily plus four hours of housekeeping assistance per week. Ms. Abbot included the three hours' weekly homecare service Mrs. Persofsky currently receives in her calculations. She feels Mrs. Persofsky should focus on having a "clean bathroom, kitchen and living/recreational room." In addition, this housekeeper would attend to laundry and linen changes. Ms. Abbot took into account that Wendy Persofsky should share in the household chores as long as she was living in the home.

In her report, Ms. Abbot also recommended provision of various services by occupational therapists, nutritionists/dieticians, rehabilitation therapists, and counsellors for Mrs. Persofsky's future care, as her response to the interventions suggested by the report of Ms. Wong and Mr. Martino.

Twenty hours per week of housekeeping translates into less than three hours per day. Included in the services I find Mrs. Persofsky reasonably requires because of the accident are assistance with meal preparation and cooking,⁶ grocery shopping, vacuuming, hand dishwashing, kitchen clean up, dusting, sweeping and mopping floors, cleaning three bathrooms, laundry, and interior window washing. I accept that Mrs. Persofsky is entitled to 20 hours per week for housekeeping services. In my view, she is entitled to these amounts as services that are non-medical in nature which she requires because of the accident.

Liberty Mutual submitted the case of Monachino v. Liberty Mutual⁷ for my consideration. In the Monachino case the Court of Appeal, in a 2:1 split decision, denied the care benefits claimed by a family under subsection 7(1)(b) of the Schedule, because the care was mainly given by the injured young man's mother, Mrs. Monachino, who was a homemaker prior to the accident and not employed outside the home. Mrs. Persofsky's case can be distinguished from the Monachino case, because in this case Wendy Persofsky did leave paid employment to care for her mother. In addition, the Monachino case did not address a situation where significant professional care and housekeeping services were reasonably required by an insured person as a result of an accident, and not provided, as is the case for Mrs. Persofsky in the summer of 1992 and from January 1, 1998, ongoing.

Arbitrator Baltman found in the Kennelly and Wawanesa case⁸ that an insurer should pay for treatments that had not taken place, because the insurer had refused to extend the funding for the treatments. She reasoned that the Applicant in that case was deprived of a service that she was entitled to by statute. The termination of therapy delayed Mrs. Kennelly's recovery, increased her frustration over her impairments, and caused her to lose some of the gains she had already made. Moreover, that insurer had the benefit of the funds during the time that they should have been dispensed to Mrs. Kennelly.

In my view, similar reasoning can be applied in Mrs. Persofsky's case. Liberty Mutual knew the serious difficulties Mrs. Persofsky was experiencing by at least May 8, 1992, just seven weeks after the accident. It had received a note from Mrs. Persofsky's family physician, dated March 26, 1992, confirming her inability to do housework and her need for help. That note also described Mrs. Persofsky's injuries in the accident and informed Liberty Mutual about her pre-accident status as a person having only one functional arm. Mrs. Persofsky had submitted an application for accident benefits dated April 24, 1992, in which she indicated she could not do her housekeeping. In my view, those documents and that information was sufficient for Liberty Mutual to establish Mrs. Persofsky's claim for reasonable expenses for housekeeping, even though Liberty Mutual ignored the situation.

In summary I find:

Professional Caregiving (s.7(1)(a))

22 hours per week at $16.00/hr.

from

June 15, 1992

to

September 30, 1992

from

January 1, 1998

ongoing

Housekeeping (s. 6 (1)(f))

20 hours per week at $8.00/hr.

from

May 8, 1992

to

September 30, 1992

from

January 1, 1998

ongoing

Income Reasonably Lost by Wendy Caring for Mrs. Persofsky (s.7(1)(a))

40 hours per week @ $8.00/hr

from

October 1, 1992

to

December 31, 1997

Handyman and gardener

Mrs. Persofsky has regularly submitted claims for lawn care and snow clearing since 1992. She has also submitted some claims for gardening assistance. From my review, it would appear that although this claim was denied once, it has usually been paid. Mrs. Persofsky testified that she used to mow her lawn before the accident with an electric lawn mower. She also cared for her rose bushes and other plants and shrubs, by pruning, feeding, etc. She testified that she also used to shovel snow, since she was determined to show that she could do everything a two-handed person could do. I accept as credible Mrs. Persofsky's evidence about her pre-accident activities on these issues. There seems to be no dispute about Mrs. Persofsky's need for snow removal. That should continue. I find she is also entitled to the services of a gardener and lawn care company that will replace the same level and quality of services which she used to perform herself, but can no longer accomplish, because of the injuries to her left shoulder and low back in the accident.

With respect to the provision of a handyman, I agree with Mrs. Persofsky's contention that there are many minor miscellaneous chores around the home that she previously performed herself rather than hire assistance, but cannot any longer. An example of such a service is the replacement of light bulbs, including the long fluorescent tubes in her kitchen ceiling. Mrs. Persofsky is entitled to the services of a company or individual that will replace the services which she used to perform herself, but can no longer accomplish, because of the injuries to her left shoulder and low back in the accident. I have no estimate of these services apart from Mr. Martino's estimate of $100 per month. Ms. Abbot made no provision for such services. Ms. Karen Beer, another occupational therapist engaged by the Insurer to provide a report, also did not address this need.

I find that $1,200 per year for minor, miscellaneous handyman chores around the home that Mrs. Persofsky would formerly perform herself is an excessive amount. However, in recognition of the intermittent nature of such chores, and including an allowance for redecorating interior rooms from time to time, I am prepared to allow $700 per year, under subsection 6(1)(f) of the Schedule.

Various Devices, Home Renovations, Etc.

Electrically Operated Bed

Mr. Martino estimated the cost of this bed at $6,000. Ms. Wong, O.T., recommended the bed because it would enable Mrs. Persofsky to change positions more easily and reduce the high risk of developing bed sores. Although Dr. Grosfield was not specifically commenting on this request, he did tell Liberty Mutual in his report of May 28, 1998 that "Once she lies down, for example, she has a major difficulty getting up as she is unable to use either of her upper extremities for support." Dr. Ehrlich agreed Mrs. Persofsky requires such a bed as a result of the injuries she received in the accident. Dr. Ogilvie-Harris supported it as well, as a medical necessity.

Ms. Beer did not recommend an electrically operated bed in her report of August 5, 1999. She felt that this would "serve to reduce the amount of movement and energy required in her daily performance, and as such would further reinforce sick role behaviours, such as lying in bed all day." Ms. Beer proposed, instead, that Mrs. Persofsky "problem solv[e] with regards to various assistive equipment to assist her in achieving correct postural alignment, with minimal risk to developing bed sores."

I prefer the assessment of Ms. Wong and Mr. Martino, in the light of the comments of Dr. Grosfield, Dr. Ehrlich and Dr. Ogilvie-Harris and find that this medical device, an electrically operated bed, constitutes a reasonable expense that is necessary for Mrs. Persofsky's treatment or rehabilitation.

Throughout this arbitration, I received opinion evidence from various professionals, chiefly occupational therapists, that differed as to the recommended level of assistance to be provided to Mrs. Persofsky on what I might term a "philosophical" basis. Some health professionals appeared to view medical devices, especially the more expensive ones, as unnecessary devices that would promote the client portraying more of a sick posture. It appeared they felt these devices would coddle Mrs. Persofsky and result in increased dependence.

My view is that Mrs. Persofsky's strength of character is discernible through her past achievements. The provision of devices that will enhance her quality of life and make it easier for her to conduct her normal activities of daily living will not encourage her to assume a disabled posture. Rather, they will allow her to expend her energy in more fruitful endeavours. The provision of these assistive devices reflects acceptance of Mrs. Persofsky's permanent disability caused by the motor vehicle accident, and conveys an attitude that fosters personal dignity, promotes maximal rehabilitation, and thereby cultivates increased interaction with the community. Dr. Ogilvie-Harris touched on this point during his testimony. He endorsed the purchase of many of these devices for Mrs. Persofsky as necessary in the context of modern day North America. For him, the concept of what is viewed as necessary in the Third World would be different. I agree.

Swimsuit

Every health practitioner with whom Mrs. Persofsky has interacted appears to support her involvement in aquatherapy. This is a beneficial activity that she enjoys. She should have an appropriate swimsuit. Liberty Mutual made some suggestion in submissions that this amount had been paid, but I received no evidence of that. The adjuster's notes show this claim was denied on May 22, 1998. This amount should be paid at $102.35.

Electric Wheelchair, Scooter

An electric wheelchair was first recommended for Mrs. Persofsky by Ms. Carol MacDonald, the occupational therapist hired by Liberty Mutual in 1995. Ms. MacDonald, unfortunately, decided that because Mrs. Persofsky's mobility impairment was not, in her opinion, "directly related to the accident in question" that, in her opinion, Liberty Mutual "would not be liable to assist this client with funding a mobility device." As I have set out above, the test for impairment includes indirect relationship to the accident and I have found that Mrs. Persofsky's increased back pain is directly related to the accident and her increased weight is indirectly related.

Ms. MacDonald, however, did arrange for Mrs. Persofsky's assessment by a government Assistive Devices Program authoriser. In the result, however, no scooter or electric wheelchair was authorized. According to Mrs. Persofsky's recollection, the denial related somehow to the state of her garage floor and the lack of a ramp to her front door.

Dr. Ehrlich first recommended the electric wheelchair or a scooter in a note dated March 20, 1997. He wrote to Liberty Mutual about it again on August 22, 1997, specifically recommending an electric wheelchair "to enable her to get out a little and shop. She really has no-one to push her regular wheelchair." He indicated Mrs. Persofsky would benefit from the provision of a scooter in his letter of December 1, 1998.

Dr. Ogilvie-Harris recommended help with Mrs. Persofsky's transportation in his report of February 23, 1999. He confirmed her requirement for a wheelchair. In his report of January 13, 2000 he criticized the Future Care Costs Analysis dated December 28, 1999 because it did not seem comprehensive and did not allow for mobility aids such as a scooter.

Dr. Grosfield, in his report of May 28, 1998 felt that Mrs. Persofsky's lot could be improved by becoming more mobile. He thought this could be achieved through her attempting to drive again. He did not feel she needed a motorized wheelchair, but felt this question should be addressed by means of an occupational therapy assessment. In his report of July 22, 1999 he was of the view that Mrs. Persofsky needed to get out of the house more often and suggested the provision of a walker.

Liberty Mutual submitted that Mrs. Persofsky's problems with mobility, which she wished to alleviate with an electric wheelchair or scooter, did not arise directly from the accident. However, as I have discussed above, this is not the test that is imposed by this Schedule. In any event, the evidence shows that Mrs. Persofsky has complained of increased low back pain since the accident. Prior to the accident, I accept that she was regularly ingesting powerful medication to control her back pain, yet she was functioning at a very high level in her job and putting in long hours. After the accident, I find her pain increased to a higher order of magnitude and she consumes the maximum dose of a narcotic analgesic which merely "takes the edge off" her chronic pain. As a consequence of her back pain, she cannot stand, walk, or even sit, for lengthy periods of time. Dr. Grosfield addressed these questions in his addendum report to Liberty Mutual of November 4, 1998.

I accept that the injuries Mrs. Persofsky received in the accident materially contribute directly to her chronic back pain. In addition, her weight gain, which is an indirect result of her accident injuries, impedes her mobility.

I do not believe, however, that at present Mrs. Persofsky requires both an electric wheelchair and a scooter simultaneously. It is not my understanding of her situation that she requires an electric wheelchair for in-home use. She requires some sort of mobility device to travel around a grocery store or a shopping mall, for example. I think Mrs. Persofsky should consult with her rehabilitation advisors as to the relative merits of each of these options and choose one. She should have a trial period to determine which device suits her best. The scooter or electric wheelchair will be an important link to the outside world as Mrs. Persofsky continues her rehabilitation. Batteries are required for both these devices.

Home Modifications to allow a chair lift

This claim was only briefly raised at the hearing. In the pre-hearing arbitrator's report, the claim is mis-characterized as a wheelchair lift.⁹ However what Ms. Wong recommended in her report of June 4, 1998 was a chair lift. This device would be installed inside Mrs. Persofsky's home to enable her to sit while the device raises or lowers her on the eight steps between the main level and bedroom level in her home. In his report of November 19, 1998, Mr. Martino was concerned about the feasibility of this item and thought more investigation and evaluation by a professional competent in home modifications and familiar with the specifics of Mrs. Persofsky's weight was required.

I heard no submissions with respect to this device. In his letter of February 19, 1999, Dr. Ehrlich characterized a chair lift as a reasonable and necessary safety measure. Mrs. Persofsky testified that it was "very, very hard" for her to go up and down stairs very often. Several health professionals have expressed their concern about Mrs. Persofsky's ability to safely negotiate stairs. She testified about a fall she had experienced on the outside stairs to her home. Providing a chair lift indoors would not help with the outside stairs. In his testimony at the hearing, Dr. Ehrlich expressed the opinion that she needed a lift or a ramp to get into the house. Dr. Ogilvie-Harris endorsed the suggestion of a chair lift in his report of January 13, 2000.

The cost of the interior chair lift is estimated at $6,000 with an annual provision for maintenance of $100 and a projected lifespan of seven years. I believe the provision of such a device would enhance Mrs. Persofsky's mobility within her home and encourage her to spend more time out of her bedroom, because it will provide her with safe access to both floors. I find that an amount of up to $6,000 should be allowed for this home modification and device. Annual maintenance should be paid.

Modifications to her motor vehicle

This claim was not well delineated at the hearing. Mr. Martino presented the cost of a van and van modifications, with no details, in his letter of April 4, 2000. They total $29,000. On the other hand, Ms. Abbot presented the cost of $85 for a steering wheel modification, plus installation, and the suggestion of a short refresher course of driver education. It was not clear to me from her testimony that Mrs. Persofsky wishes to resume driving at this time. However, she may wish to attempt this in the future. As has been suggested by more than one assessor, a driving assessment at the Bloorview MacMillan Centre would be a prerequisite to ascertain Mrs. Persofsky's abilities and the modifications required to her present vehicle, or whether the purchase of a new or different type of vehicle is required. The cost of that assessment is approximately $400.

Certainly, Mrs. Persofsky will require a vehicle which can carry her scooter or electric wheelchair either within the vehicle itself or by means of an externally mounted carrier. I find Mrs. Persofsky is entitled to have her driving skills assessed at the Bloorview MacMillan Centre, if she wishes to contemplate returning to driving independently. I find that she has not established, in this arbitration, that she requires a $29,000 van.

Weight Reduction Program

I heard no oral evidence with respect to this program. It was not raised by either party in submissions. The Canyon Ranch program, which was preliminarily investigated in 1998 by Ms. Wong, is located in Arizona, U.S.A. and costs $13,038.99 for three weeks, according to Mr. Martino's report of April 4, 2000. Mrs. Persofsky was not asked in detail about her intention or willingness to attend such a program, although she did testify that Mr. Martino's plan was "good and thorough" and that she planned to implement it. Liberty Mutual has proposed in Ms. Abbot's report that Mrs. Persofsky come under the care of a nutritionist, once weekly, at a cost of $1,630.

As I have already expressed, in my view, Mrs. Persofsky's weight gain from the date of the accident has been an indirect injury to her person, as a result of the accident. I appreciate that it may be necessary for Mrs. Persofsky to participate in a residential program to successfully initiate a weight loss program. Mr. Martino was unable to find any local medical facility currently operating such a program. Liberty Mutual presented no contrary evidence about local availability.

Dr. Ehrlich endorsed the three-week trial of a comprehensive residential weight reduction program in his letter of December 1, 1998. In his letter of February 19, 1999 he wrote:

I am concerned that because of the inactivity whereby Molly lies on the bed for 20 hours of the day following the collision and her length of life will be considerably shortened. She needs to go to a facility to begin a realistic weight loss programme.

She needs a comprehensive weight reduction programme on a trial basis but the trial would have to be for at least a further three months to make any headway.

Dr. Connell in his report of April 10, 2000 made 16 recommendations of measures that should be undertaken to assist Mrs. Persofsky. He concurred that she requires a "supervised weight reduction program."

I prefer Dr. Ehrlich's and Dr. Connell's opinions as to the type of weight reduction program that will likely work best for Mrs. Persofsky. Both Dr. Ehrlich and Dr. Connell have treated Mrs. Persofsky for years and are in a better position than Ms. Abbot to comment on this issue. I feel it is reasonable that Mrs. Persofsky participate in a residential weight loss program to initiate a program of weight reduction. Thereafter, I agree with Ms. Abbot that she should receive ongoing, weekly follow up by a dietician or nutritionist. Mrs. Persofsky's travel expenses to attend this program in the U.S.A. are also payable by Liberty Mutual.

Rehabilitation Network Canada Assessments and Reports

Dr. Ehrlich requested Rehabilitation Network Canada Inc. (RNC) provide him with a comprehensive rehabilitation plan for Mrs. Persofsky in the spring of 1998. Dr. Ehrlich requested that RNC also assess her future attendant care needs and perform an in-home assessment. He further requested that RNC address Mrs. Persofsky's vocational and social rehabilitation and offer rehabilitation counselling.

I find RNC's comprehensive rehabilitation plan was a necessary service Mrs. Persofsky required because of the accident, since no other comprehensive plan had ever been undertaken. Mrs. Persofsky also needed a professional assessment of her attendant care and homemaking needs. Through the implementation of this plan Mrs. Persofsky could be assisted to become as functional as possible within her home and community.

The invoice for RNC's services was rendered, together with a copy of the completed assessment, to Liberty Mutual by letter dated November 19, 1998. The amount claimed totals $8,365.26.¹⁰RNC charged $95.00 per hour for 65 hours of interviews, case conferencing, file review and analysis, formulation of opinions, and report preparation. RCN charged four hours of travel time and 80 kilometres of mileage at $0.35/km. For its in-home assessment and report, RCN charged $1,200. Photographs were charged at $35.00.

The assessments and reports provided a comprehensive, professional opinion of the measures required by Mrs. Persofsky as a result of the accident. I find these assessments and reports are compensable under section 6(1)(f) of the Schedule. They do not appear to be the type of reports contemplated by subsection 23(1).

Interest

Mrs. Persofsky is entitled to interest at the rate of two per cent per month from the date that amounts payable under Part II became overdue, according to the provisions of subsection 24(4) of the Schedule. Amounts payable under Part II are overdue 30 days after the insurer receives a completed application for statutory accident benefits. As I indicated previously, Liberty Mutual did not provide any evidence that it requested a statement from Mrs. Persofsky's medical practitioner or psychological advisory under subsection 6(4).

The formal application for care benefits and housekeeping benefits dated May 14, 1998, prepared with the assistance of Mrs. Persofsky's counsel, was received by Liberty Mutual on May 20, 1998, according to the adjuster's notes of June 17, 1998. Interest runs from June 20, 1998 on the care portion of that claim. However, I have found that Mrs. Persofsky applied to Liberty Mutual, with her doctor's support, years before, in May of 1992 for housekeeping assistance. That claim was ignored by the insurer. Accordingly, intuitively, in fairness, interest should run on what could be said to comprise the "housekeeping" portion of care provided by Wendy Persofsky, even though that amount is paid under section 7(1)(a), from June 8, 1992.

The first statement from Rehabilitation Network Canada Inc., dated December 1, 1998, was date-stamped by Liberty Mutual as received on December 11, 1998. I cannot read the date-stamp on the report and invoice, because I was not provided with the originals. I find Liberty Mutual received the report on November 29, 1998. Interest runs from December 29, 1998.

If there is any question as to when interest commences in connection with the claims for the handyman, electrically operated bed, swimsuit, electric wheelchair or scooter, chair lift, driving assessment, or weight reduction program, the parties may make submissions to me in writing.

Special Award

Section 282(10) of the Act provides that an arbitrator shall award a lump sum special award to an insured person if an insurer has unreasonably withheld or delayed payments. I find that Liberty Mutual's adjustment of Mrs. Persofsky's claim fell

dismally below the reasonable standards expected of an accident benefits insurer in Ontario. Serious consequences have arisen to Mrs. Persofsky and her family members as a result of Liberty Mutual's failure to deal with Mrs. Persofsky in a reasonable fashion.

Liberty Mutual's Senior Claims Specialist, Ms. Tina Maasland, was cross-examined by Mrs. Persofsky's counsel. Her interpretation of her responsibility as a claims' adjuster was that it is her duty to provide the care that is required as a result of the accident. From June 1996 to June 1997, she was the adjuster handling this claim; after April 1999, the claim was transferred back to her again. Her contention, which was adopted by her counsel in his submissions, was that Mrs. Persofsky did not submit any claims for housekeeping. Accordingly, despite the reports from physicians and other medical professionals, including occupational therapists, about Mrs. Persofsky's impairments, Liberty Mutual made no offer of housekeeping or professional caregiving to her.

Liberty Mutual's counsel acknowledged in his submissions that this was "no doubt, a very tragic case." He claimed that Liberty Mutual had recognized this by continuing to pay its weekly income benefits religiously.¹¹ He further acknowledged that there is no doubt that Mrs. Persofsky "deserves a significant amount of assistance." He admitted that there is no issue that Mrs. Persofsky "requires some level of housekeeping." However, he submitted that "the system" works by housekeeping expenses being incurred, then submitted to the Insurer, with sometimes prior approval for direct billing being given. Otherwise, the Insurer’s ability to assess on an ongoing basis for improvements is removed. Liberty Mutual’s counsel made no submissions about the effect of Dr. Ehrlich's note dated March 26, 1992 and Liberty Mutual's lack of response to it. He made no submissions reflecting Liberty Mutual’s recognition that the word "incurred" is not found in sections 6 and 7 of the Schedule, except in relation to the particular allowance specified in subsection 6(2) relating to visitors' expenses. Neither did he reflect on interpretation, such as that set out in MacDonald v. Travelers,¹² whereby judges have held that once the reasonable necessity of an item claimed is established and the cost of obtaining the service is shown, the expense may be said to have been incurred and the obligation to pay must be assumed by the insurer.

Liberty Mutual's counsel also submitted that a special award is not merited in this case. He submitted that the claim for housekeeping and attendant care was not submitted until the late 1990s. If it is not submitted, it cannot be said to be unreasonably withheld. He further submitted that if an insurer relied on the opinion of occupational therapy and disability management experts as to what rehabilitation devices were reasonable, then a special award is not appropriate.

Mr. Frank Martino also testified at this arbitration hearing. Mr. Martino is the President of Rehabilitation Network Canada, Inc. He is a Canadian Certified Rehabilitation Counsellor (CCRC) and a Registered Rehabilitation Professional (RRP). He is also certified and registered with the American Board of Disability Analysts (ABDA). He has been working in the field of rehabilitation since 1979. He is a member of a designated assessment centre (DAC). Mr. Martino is a former president of the Canadian Association of Rehabilitation Personnel (Ontario Society) ("CARP") and serves the Association nationally as the Chair of its Ethics Committee. He also acted as CARP’s Canadian Commissioner for the Commission for Certifying Rehabilitation Counsellors from 1990-95. He received an award from CARP in 1991 for excellence in rehabilitation. Mr. Martino has also been engaged exclusively since 1990 by the Workers Compensation Appeals Tribunal (now WSIAT) as their vocational expert. He is listed in the American publication, Who's Who of Professionals. Mr. Martino indicated that over the past ten years, he has performed thousands of assessments, with motor vehicle assessments forming less than ten per cent of his business. He claimed that his services were usually retained in the most serious cases, by insurers, and plaintiff and defence counsel alike.

I was impressed by Mr. Martino’s demeanour, his credentials, and his objectives in vocational and rehabilitation evaluation. He is a knowledgable, experienced and respected professional in this field. After he was engaged to become involved in Mrs. Persofsky’s case, he sought to understand what Mrs. Persofsky’s former activities were on a day to day basis. He wanted to provide practical recommendations to provide assists and aids to help her return to her former level of function. I reproduce some of his concluding comments from his Vocational Rehabilitation Assessment and Proposed Plan dated November 19, 1998 addressed to Dr. Ehrlich:

Having carefully reviewed and evaluated all available evidence, it is my professional opinion that Ms. Persofsky has fallen victim to either an uncaring or an unsympathetic system. During her lengthy period of disability, she has been examined and evaluated by several highly accredited medical specialists whose opinion carries substantial weight within their fields of specialization. Almost without exception, these informed sources emphasized the significance of Ms. Persofsky's disability, which several stated was seriously compromised by the permanent and debilitating birth defect affecting the right upper extremity. Tragically, it is all too evident that the level(s) of service provided in delivering other key components in the rehabilitation processes were either deficient, mis-directed, short lived or totally lacking.

Mr. Martino's conclusion continues in a similar vein. He made ten recommendations, most of which form some part of the issues in this arbitration.

I was not impressed by Liberty Mutual's argument that because, in its view, Mrs. Persofsky never submitted claims for housekeeping or professional caregiving until 1998, it was not liable to her. I have no evidence that Mrs. Persofsky ever received any information about what statutory accident benefits were available to her as a result of this accident. She cooperated fully with her insurance company, attending assessment after assessment, year after year. The services of her "disability manager," who had been engaged by the insurer, were terminated when Liberty Mutual attempted to settle Mrs. Persofsky's claims for a lump sum and never reinstated when these overtures were rejected by Mrs. Persofsky.

At the arbitration hearing, counsel for Liberty Mutual undertook that the company would attend to several matters for Mrs. Persofsky forthwith (for example, shortening her kitchen stool so that it is useful). I would hope that these matters have been attended to prior to the issuing of this decision. I have considered these undertakings as mitigating factors in formulating the amount of the special award that should be imposed in this case.

Nevertheless, I find that Liberty Mutual has unreasonably withheld all the payments claimed by Mrs. Persofsky in this arbitration to which I have found she was entitled. The legislation mandates an award of 50 per cent as the maximum special award. Some of the payments withheld in this case are of a higher order of unreasonableness than others. On her claims for care and housekeeping, I award Mrs. Persofsky a lump sum of 40 per cent of the amount to which she is entitled as of the date of this decision, together with interest on all amounts owing to her (including unpaid interest) at the rate of two per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. On the swimsuit claim, I award the maximum special award of 50 per cent. On the other claims for which she was successful, I award 30 per cent.

EXPENSES:

Each party claims the other should pay its expenses in respect of the arbitration, pursuant to subsection 282(11) of the Act. Mrs. Persofsky has been largely successful in this arbitration and her expenses should be paid by Liberty Mutual.

Other Issues

Although it was not part of the claim in this hearing, it was abundantly apparent that immediate measures should be undertaken to assist Mrs. Persofsky in her personal toiletting. Dr. Connell also made some excellent suggestions in his report of April 10, 2000 and in his oral testimony. I would hope that the parties can cooperate to engage a professional to manage Mrs. Persofsky's ongoing rehabilitation and arrange the immediate intensive effort to clear Mrs. Persofsky's home of the "disarray, mess and debris paralysing the functioning of the home."¹³

June 23, 2000

K. Julaine Palmer Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 113

FSCO A99-000598

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MOLLY R. PERSOFSKY

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Liberty Mutual Insurance Company shall pay Molly Persofsky $320 per week from October 1, 1992 to December 31, 1997 for the gross income reasonably lost by Wendy Persofsky as a result of the accident in caring for Molly Persofsky

2. Liberty Mutual Insurance Company shall pay Molly Persofsky $352 per week from June 15, 1992 to September 30, 1992 and from January 1, 1998, ongoing, as the reasonable cost of a professional caregiver for the care she requires as a result of the accident.

3. Liberty Mutual Insurance Company shall pay Molly Persofsky $160 per week from May 8, 1992 to September 30, 1992 and from January 1, 1998, ongoing, for housekeeping services which she requires because of the accident.

4. Liberty Mutual Insurance Company shall pay Molly Persofsky interest on $160 per week of the amounts in paragraph 1 from June 8, 1992 and on the remainder of the amounts in paragraphs 1 and 2 from June 20, 1998. Liberty Mutual Insurance Company shall pay interest on the amounts in paragraph 3 from June 8, 1992. Interest is payable at the rate of 2 per cent per month, according to the provisions of section 24(4) of the Schedule.

5. Liberty Mutual Insurance Company shall pay Molly Persofsky $700 per year for miscellaneous handyman chores, under the provisions of subsection 6(1)(f) of the Schedule.

6. Liberty Mutual Insurance Company shall pay Molly Persofsky $6,000 for an electrically-operated bed; $102.35 for a swimsuit; the amount required for an electric wheelchair or motorized scooter and batteries, estimated at $3,600; $6,000 for an interior chair lift and $100 for maintenance of the chair lift, annually; $400 for a driving assessment; $13,038.99 for a residential weight reduction program plus transportation costs and $1,630 for a consulting nutritionist once weekly for one year; and $8,365.26 for the services of Rehabilitation Network Canada.

7. Liberty Mutual Insurance Company shall pay Molly Persofsky interest on the amounts set out in paragraphs 5 and 6, as provided in subsection 24(4) of the Schedule. The interest on the services of Rehabilitation Network Canada runs from December 29, 1998.

8. Liberty Mutual Insurance Company shall pay Molly Persofsky a special award under section 282(10) of the Schedule of 40 per cent of the amounts to which she is entitled for housekeeping and for care as of this date, together with interest on all amounts owing to her (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. On the swimsuit claim, Liberty Mutual shall pay a special award of 50 per cent. On all other amounts owing, Liberty Mutual shall pay a special award of 30 per cent.

9. Liberty Mutual Insurance Company shall pay Molly Persofsky her reasonable expenses of this arbitration, as agreed or assessed.

June 23, 2000

K. Julaine Palmer 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. 2Provenzano and Metropolitan Insurance Company, (OIC P-000380, August 26, 1993).
3. 3Thompson and Peel Mutual Insurance Company, (FSCO P97-00051, November 30, 1999).
4. 4Adjuster's note of February 23, 1995, Exhibit 8, p. 93
5. 5This is the period between Mrs. Persofsky's last day at work and the date I have determined Wendy Persofsky left Goodman's China. Wendy Persofsky was not able to testify as to the exact dates of her employment with Goodman's. However, since she earned $3,560.96 gross and was paid $8.00 per hour, she performed at least 11 weeks of employment at 40 hours per week, and likely longer, since her hours appear to be less than 40 hours per week, according to some of the pay stubs.
6. 6In my view, meal preparation is another activity that could qualify as a care benefit or a housekeeping service. In Mrs. Persofsky's case, since she is presently capable of participating in this activity, with copious assistance, I have characterized it as part of housekeeping service.
7. 7Monachino v. Liberty Mutual Insurance Company, (2000) 2000 CanLII 5686 (ON CA), 47 O.R. 3d 481 (C.A.), affirming 1997 CanLII 26915 (ON CTPD), 1997 O.J. No.3571 (OCJ), (1997) 49 C.C.L.I. (2d) 105.
8. 8Kennelly and Wawanesa Mutual Insurance Company, (FSCO A99-000139, January 21, 2000).
9. 9The Report of Mediator, dated 31 May 1999, refers to an "electric chair lift."
10. 10See Exhibit 2, tab 50, page 4. The amount has been transcribed, in error, elsewhere as $8,265.26.
11. 11See above at page 5. Weekly income benefits are being paid at $148.30 per week.
12. 12MacDonald v. Traveler's Indemnity Co. of Canada, (1987) 1987 CanLII 4062 (ON HCJ), 60 O.R. (2d) 385 (H.Ct.).
13. 13Report of Dr. S. Connell, April 10, 2000, page 5.