Neutral Citation: 2000 ONFSCDRS 212

FSCO A99-000201

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARK FAERBER-MACMILLAN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

September 6 and 7, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

G. Joseph Falconeri for Mr. Faerber-MacMillan

Ian D. Kirby for Allstate Insurance Company of Canada

Issue:

On March 14, 1995, at the age of 17, Mark Faerber-MacMillan¹, sustained a cervical spinal cord injury in a motor vehicle accident. As a result, Allstate Insurance Company of Canada ("Allstate") pays Mr. Faerber-MacMillan attendant care benefits, a form of statutory accident benefits payable under the Schedule² A dispute has arisen regarding the rate at which Allstate is obliged to pay Mr. Faerber-MacMillan attendant care benefits. The parties were unable to resolve this dispute through mediation, and Mr. Faerber-MacMillan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. At what rate is Allstate obliged to pay Mr. Faerber-MacMillan attendant care benefits?

Result:

1. Allstate is obliged to pay Mr. Faerber-MacMillan attendant care benefits at the monthly rate of $6,552.87.

Introduction and governing provision of the Schedule:

The parties agree that as a result of his cervical spinal cord injury, Mr. Faerber-MacMillan is entitled to attendant care benefits under sections 47(1), (2), (5) and (9) of the Schedule. These sections read as follows:

47.-(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) services provided by an aide or attendant; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

(2) For the purposes of clause (1)(a), an aide or attendant may be any person who is capable of providing the services, including a family member of the insured person, even if the aide or attendant does not possess any special qualifications.

(5) If, as a result of the accident, the insured person suffers cervical spinal cord injuries, severe brain injuries or an upper bilateral amputation or other injuries that cause the total loss of use of both hands or arms, the maximum amount payable under this section in respect of the insured person is $6,000 per month.

(9) The benefits payable to an insured person under this section shall be determined in accordance with Form 1 and subsection 50 (10).

The parties disagree about the rate at which attendant care benefits should be paid. This dispute turns on whether Mr. Faerber-MacMillan's entitlement to attendant care benefits is subject to the maximum amount stipulated by section 47(5), above, or the maximum amount stipulated by section 47(6), below:

(6) If, as a result of the accident, the insured person suffers injuries mentioned in subsection (5) and another injury that by itself would have required services referred to in subsection (1), the maximum amount payable under this section in respect of the insured person is $10,000 per month.

It is clear that for section 47(6) to apply, Mr. Faerber-MacMillan must have suffered more than a cervical spinal cord injury; he must have also suffered "another injury that by itself would have required" attendant care services.

The Applicant argues that, in addition to his cervical spinal cord injury, he suffered a psychological injury either as a result of the accident or as a result of Allstate's mishandling of his claims for computer and environmental control equipment and for home maintenance.

The Insurer argues that section 47(6) does not apply, first because Mr. Faerber-MacMillan suffered only one injury, his cervical spinal cord injury, and second because Mr. Faerber-MacMillan's psychological injury, if one was suffered, would not "by itself" have required attendant care services. It denies that Mr. Faerber-MacMillan's psychological injury, if one was suffered, was caused by its handling of his claims. It also alleges that Mr. Faerber-MacMillan failed to prove that his psychological problems, if any, require the provision of additional attendant care services.

If the maximum amount stipulated by section 47(5) applies, there is nothing further to decide as the Insurer is already paying that amount, as indexed under section 80 of the Schedule, in accordance with the report of a Designated Assessment Centre ("DAC") dated December 14, 1998.³

If the maximum amount stipulated by section 47(6) applies, I must go on to decide whether Mr. Faerber-MacMillan is entitled to attendant care benefits in that amount, as indexed under section 80, or some lesser amount in accordance with section 47(9), Form 1 and subsection 50(10) of the Schedule.

Section 50(10) stipulates the hourly rates payable for each of the three levels of attendant care contemplated by Form 1. The level 1 and level 3 rates are also indexed under section 80. The level 2 rate is the minimum wage which has not been increased since January 1, 1995.

The following maximums and hourly rates, expressed in dollars, have been in effect since 1996; the changes, if any, have taken effect on January 1 of each year:

1996

1997

1998

1999

2000

section 47(5)

6,150.28

6,242.53

6,342.41

6,386.81

6,552.87

section 47(6)

10,250.46

10,404.22

10,570.69

10,644.68

10,921.44

level 1 care

8.97

9.10

9.25

9.31

9.55

level 2 care

6.85

6.85

6.85

6.85

6.85

level 3 care

14.35

14.57

14.80

14.90

15.29

Evidence and analysis with respect to the question whether Mr. Faerber-MacMillan suffered a psychological injury as a result of the accident:

Mr. Faerber-MacMillan's cervical spinal cord injury has left him in a state of almost complete, and probably permanent, paralysis below the neck known as quadriplegia. The devastating physical effects of this injury, and Mr. Faerber-MacMillan's resulting need for attendant care services, cannot be and was not contested before me. Rather, the issue in dispute is whether Mr. Faerber-MacMillan also suffered a psychological "injury" as a result of the accident "that by itself would have required" attendant care services. To determine whether Mr. Faerber-MacMillan suffered a psychological injury as a result of the accident, I refer to the following background information and medical evidence.

Dr. Alina Kaminska, psychologist

In late 1998, Mr. Faerber-MacMillan was referred by his counsel to Dr. Alina Kaminska, a clinical psychologist. In her first report dated February 14, 1999⁴, Dr. Kaminska reviewed documentation of Mr. Faerber-MacMillan's previous psychological or psychiatric treatment since the accident in March 1995. She noted that a diagnosis of depression was initially made by a psychiatrist at the Toronto Western Hospital where Mr. Faerber-MacMillan was a patient from the day after the accident until August 1995.⁵ He was then transferred to the Lyndhurst Spinal Injury Hospital until May 1996. Dr. Kaminska observed that the discharge note from this hospital indicated that Mr. Faerber-MacMillan was having "difficulty coping with his situation and showed poor motivation and cooperation with rehabilitation due to depression".⁶ From Lyndhurst, Mr. Faerber-MacMillan moved into a wheelchair-accessible apartment and was examined about three months later by Dr. W.O. Geisler, a specialist in physical medicine and rehabilitation. Dr. Kaminska's report states that Dr. Geisler "stressed the need for intensive and compassionate support, especially in an independent living arrangement".⁷ Dr. Geisler's actual words, as found in his report of September 5, 1996, were:

Mr. Faerber has been injured at a very high level [of the spinal cord] and will require attendant care around-the-clock into the future. He is presently in an attendant care unit where such personnel are present around-the-clock. This appears to be working out very well for him and he appears to be reasonably satisfied. If, however, a moment in time came where he thought he might want to go into his own personal home, it would only be possible if mature, adult, compassionate people were available, twenty-four hours a day. There must be the security of attendant care to permit this to happen.⁸

Mr. Faerber-MacMillan testified that, in fact, he only received attendant care four hours a day in his apartment and that he experienced loneliness living by himself at age 18.⁹ His adoptive father, Mr. Douglas MacMillan (sometimes referred to as Mr. Faerber-MacMillan's step-father), testified that on one occasion, while living in the apartment, Mr. Faerber-MacMillan threatened to kill himself.¹⁰ Dr. Kaminska's report confirms that Mr. Faerber-MacMillan received psychotherapy from Dr. Wendy LeDoux in 1997 but that "depression was a factor in poor attendance".¹¹Mr. Faerber-MacMillan testified that he saw a psychiatrist in 1998 but "didn't find he related to me much".¹² In August of that same year, with funds supplied by Allstate, Mr. Faerber-MacMillan bought and modified his own home. He had been living there, with his father and grandfather, for about four months when he was first assessed by Dr. Kaminska. Mr. Faerber-MacMillan's mother and two siblings live in a nearby house but Mr. Faerber-MacMillan sees his mother regularly. These continued to be the family's living arrangements at the time of the hearing.

Based on her own clinical interviews with Mr. Faerber-MacMillan and with his mother, who is referred to as Ms. MacMillan, Dr. Kaminska made the following observations in her first report dated February 14, 1999:

During the present assessment, Mr. Faerber-MacMillan initially reported a change only in his physical functioning as a result of the accident in 1995. He later noted problems with anger and poor frustration tolerance. Mr. Faerber-MacMillan reported being totally dependent on others regarding his personal care needs. The only areas of preserved sensation are in his right arm down to his wrist and in his left arm past his elbow. He has limited movement of the right arm, allowing him to perform such actions as placing a cigarette that has been fastened to his hand into his mouth.

Mr. Faerber-MacMillan's mother raised a number of concerns regarding her son's present functioning. She shared with her son the concerns about his physical functioning and anger. She noted that her son was easily irritated. Being in public places is difficult for Mr. Faerber-MacMillan, as he feels uncomfortable when others look at him. In addition, Ms. MacMillan was concerned about her son's forgetfulness and poor organization. These problems became apparent once Mr. Faerber-MacMillan moved to his own home. He was forgetting the times of scheduled visits from his attendants and therapists and the times of transportation being arranged for him. Appointment times had to be written down for him, or he had to be accompanied to his appointments. He was not taking his medication at the designated times. His mother was also concerned about Mr. Faerber-MacMillan's memory functioning. By her account, he seems to be forgetting details about his injuries, this adversely affecting his compliance with treatment. Ms. MacMillan was further concerned about her son's depression, resentment and potential for suicidal acting-out.¹³

Despite his obvious physical limitations, however, the neuropsychological tests conducted by Dr. Kaminska led her to conclude that Mr. Faerber-MacMillan's "psychometric intellectual abilities, verbal and visual memory for contextual information, perceptual and motor-free visual constructional skills and complex visual problem solving abilities were shown to be very well developed, placing him with the Average to Very Superior level of functioning".¹⁴

Dr. Kaminska concluded that Mr. Faerber-MacMillan suffered from a "major depressive disorder" and recommended "individual tutoring at least until he secures placement in an academic or training program."¹⁵ Such tutoring was arranged at Mr. Faerber-MacMillan's home through the Durham District School Board.¹⁶

Dr. Kaminska saw Mr. Faerber-MacMillan and his mother again for assessment purposes in February and March 2000 and, at the end of March 2000, she started weekly psychotherapy sessions with Mr. Faerber-MacMillan alone. Her second report, dated April 27, 2000¹⁷, contains the following "Summary and Conclusions":

My initial impression, based on clinical interviews with Mr. Faerber-MacMillan and his mother and the results of psychological testing, was that Mr. Faerber-MacMillan's psychological functioning had improved since the time of his neuropsychological evaluation in 1998. During this time Mr. Faerber-MacMillan has shown an effort to manage his difficulties and to improve his situation. He has been studying towards receiving a high school diploma under formal tutelage at home, and he has increased contacts with his former friends, though more recently Mr. Faerber-MacMillan has become less interested in spending time with them.

However, further information, gathered during this early stage of Mr. Faerber-MacMillan's weekly therapy sessions, reveals the presence of significant depressive symptomatology, still warranting the diagnosis of a major depressive disorder. Mr. Faerber-MacMillan presents as anhedonic or unable to experience pleasure, showing little variability in his subdued emotional expression. His significant dysphoria stems from his pervasive feeling of being "trapped". He denies feeling sad and he rarely cries. However, Mr. Faerber-MacMillan tends to respond to his feelings of being entrapped in his own body with anger and guilt, feelings triggered by external frustrations as well. Even though Mr. Faerber-MacMillan has achieved a greater degree of comfort within his surroundings and has shown a better adjustment to being confined to a wheelchair, he does not show the degree of self-acceptance and self-esteem needed to maintain motivation to consistently and effectively engage in a range of activities of daily living. His problems in this respect are further exacerbated by fatigue. In fact, Mr. Faerber-MacMillan has not assumed the many roles of daily living, and the impression is that the reported on-going problems in accessing things are only partly responsible for his significant passivity and dependency on others. Mr. Faerber-MacMillan believes that many tasks are too difficult for him and his motivation is stifled by his helplessness and hopelessness.¹⁸

Dr. Kaminska testified that she had been advised by Mr. Faerber-MacMillan that he was doing well in the courses taken¹⁹ but denied that this was inconsistent with her diagnosis of a major depressive disorder. She stated:

I don't believe that the level of his activity is inconsistent with the major depressive disorder. Mr. Faerber-MacMillan has made progress especially in his attempts to gain some education. But this is in fairly controlled environment. He's not at school. He receives tutoring at home. He doesn't have to interact with others in the process of learning. He spends approximately two hours I understand daily of learning.

So in this respect even though he's showing progress, he is also doing this on sort of his own terms when he feels most comfortable and able to actually study. At this stage I think had he chosen to go to school, he would have to deal additionally with issues of reexperiencing the trauma, perhaps comparing himself to other students. And that probably would be quite overwhelming for him.²⁰

Dr. Kaminska also testified: "I believe the cause of his significant depression is his injury sustained in his accident '95. I believe that he has had this major depressive disorder since the accident".²¹ On cross-examination, Dr. Kaminska qualified her opinion by testifying that in addition to physical injuries, she believed that Mr. Faerber-MacMillan "has sustained an emotional injury. And as I described it depression...".²² Dr. Kaminska's psychotherapy progress reports of May 15, 2000²³ and August 31, 2000²⁴ confirm her opinion that Mr. Faerber-MacMillan's "major depressive disorder" was ongoing up to the date of the hearing.

Dr. Bruce Stewart, neurologist

Dr. Bruce Stewart, a neurologist, examined Mr. Faerber-MacMillan once at the Insurer's request on October 20, 1999. In his report dated November 10, 1999, Dr. Stewart referred to Dr. Kaminska's opinion in the following passage:

A neuropsychometric assessment February 14, 1999 by Dr. A. Kaminska showed results consistent with good cognitive function in the majority of areas. In most of these areas Mark was functioning at the average to very superior level. There were mild deficiencies in certain areas which the psychologist thought might represent residual effects of a mild brain injury. This, however, must be taken in concert with our knowledge that the young man was also found to have a major depressive disorder. Depression reduces one's ability to process information and respond to it. I do not think these results show anything but a depressed young man of average high intelligence.²⁵

Dr. Stewart concluded his report with the following observations:

The effort to care for such an individual requires a great deal of energy. The patient himself requires positive input for hope in order to carry on. Mark's opportunity to obtain more schooling provides him with some of that hope and will assist in relieving some of his depression.²⁶

Dr. Stewart did not appear to be challenging Dr. Kaminska's opinion that Mr. Faerber-MacMillan was suffering from serious depression when he wrote these passages in November 1999. However, in his testimony at the hearing, Dr. Stewart stated that Mr. Faerber-MacMillan's psychological condition had improved since Dr. Kaminka first diagnosed the disorder "eighteen months ago".²⁷ Dr. Stewart testified that his examination revealed only "mild depressive behaviour".²⁸ Based on information obtained from Mr. Faerber-MacMillan's mother, Dr. Stewart believes that Mr. Faerber-MacMillan's "emotional state" was improving with the use of anti-depressant drugs, family support and his ability to study.²⁹

Dr. X.R. Kirkpatrick, psychiatrist

At the Insurer's request, Mr. Faerber-MacMillan was assessed on March 7, 2000 by Dr. X.R. Kirkpatrick, a psychiatrist. In her report dated June 21, 2000,³⁰ Dr. Kirkpatrick made the following comments with respect to Mr. Faerber-MacMillan's depression:

Most assessors over the years since the 1995 accident have found Mr. Faerber-MacMillan to be depressed. At the time of my assessment, it appeared that depressive symptomatology had considerably subsided but had by no means completely resolved.³¹

With respect to Mr. Faerber-MacMillan's intellectual abilities, Dr. Kirkpatrick concluded that the "general quality of [Mr. Faerber-MacMillan's] discourse suggested that he was of at least average and possibly somewhat above average intelligence".³² But she further observed that:

[i]n his neuropsychological report of November 9, 1999, Dr. A. Cancellieri noted that Mr. Faerber-MacMillan's history of mild head injury and described considerable variability in his performance on tests of intellectual ability. Some test results were in the borderline superior to superior ranges and Dr. Cancellieri concluded that cognitive deficits were attributable to the 1995 accident.³³ However, he noted that Mr. Faerber-MacMillan's high level of emotional distress and underlying characterological factors were also contributing substantially to disability"³⁴.

Dr. Kirkpatrick's report also contains the following observation concerning the psychological benefit of Mr. Faerber-MacMillan's academic activities:

Mr. Faerber-MacMillan appears to have made some headway with a few initiatives such as beginning to resume high-school studies and learning basic computer skills but these have all been undertaken within the confines of his own home and hence have not helped him to find ways in which he could enhance his sense of confidence in dealing with the outside world.³⁵

Analysis

I accept Dr. Kaminska's opinion that Mr. Faerber-MacMillan suffers from a major depressive disorder. I find Dr. Kaminska's opinions more persuasive than Dr. Stewart's as Dr. Kaminska's area of expertise relates more specifically to the type of disability in question than does Dr. Stewart's. Moreover, while Dr. Kaminska's diagnosis may have initially been made "eighteen months ago", as Dr. Stewart correctly observed, it was maintained up to the date of the hearing based on Dr. Kaminska's continuing contact with Mr. Faerber-MacMillan.

I find Dr. Kirkpatrick's opinions to be generally concordant with those of Dr. Kaminska. I resolve any conflict in their reports about the level of Mr. Faerber-MacMillan's depression in favour of Dr. Kaminska's opinion. Again, Dr. Kaminska had much greater opportunity to assess the extent of Mr. Faerber-MacMillan's ongoing psychological problems than had Dr. Kirkpatrick.

I do not question Dr. Stewart's comment that Mr. Faerber-MacMillan's schooling "will assist in relieving some of his depression", especially in the long run, but I accept and rely upon Dr. Kaminska's opinion that Mr. Faerber-MacMillan's current level of educational activity is not inconsistent with her diagnosis of major depressive disorder. Dr. Kirkpatrick was also of the opinion that Mr. Faerber-MacMillan's restricted academic involvement has, so far, provided only limited psychological benefit.

But is Mr. Faerber-MacMillan's depression the consequence of a separate "injury" within the meaning of section 47(6)?

The Insurer argues that Mr. Faerber-MacMillan only suffered one injury, his cervical spinal cord injury. I acknowledge that this argument is not defeated by my finding that Mr. Faerber-MacMillan suffers from a major depressive disorder. Rather, relying on the definitions of the words "accident" and "impairment" found in section 1 of the Schedule, I could regard this disorder not as a separate psychological injury but as a psychological "impairment" caused indirectly by Mr. Faerber-MacMillan's cervical spinal cord injury. The relevant portions of the definitions of "accident" and "impairment" read as follows:

" accident" means an incident in which, directly or indirectly, the use or operation of automobile causes an impairment...

"impairment" means a loss or abnormality of psychological, physiological or anatomical structure or function;

Unlike the words "accident" and "impairment", the Schedule does not define the word "injury". However, it does recognize that an insured person may suffer a "psychological or mental injury" when one of his or her closest relatives suffers a physical injury in a motor vehicle accident. I refer, in particular, to the definition of "insured person" also found in section 1 of the Schedule. The relevant part of this definition reads as follows:

"insured person", in respect of a particular motor vehicle liability policy, means,

(a) the named insured, any person specified in the policy as a driver of the insured automobile, the spouse of the named insured, and any dependant of the named insured or spouse, if the named insured, specified driver or spouse or dependant,

(i) is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile, or

(ii) is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside of Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse's dependant,

Subparagraph (ii) of this definition thus recognizes the potential for an insured person to suffer a psychological, as opposed to a physical, "injury" as a result of a motor vehicle accident. In other words, the section recognizes that an insured person's existence has a psychological, as well as a physical, dimension and that a motor vehicle can cause an "injury" to either one. Still, the section only recognizes this distinction explicitly in the situation where the physical and the psychological injuries are suffered by different persons, the phsycially injured person(s) having being involved in the accident and the psychologically injured person having not been involved. Can a motor vehicle accident cause separate physical and psychological injuries to one insured person who is involved in a motor vehicle accident?

In answering this question in the affirmative, I note that the definition of insured person does not state that a person who is involved in an accident can only sustain physical, not psychological, injuries. The definition merely states that in order to recognize a psychological injury to a person who is not involved in the accident, a person who is involved in the accident must have suffered a physical injury. It is clear that a person not involved in the accident can only suffer a psychological injury as a result but the Schedule identifies no reason why a person who is involved in the accident cannot suffer both physical and psychological injuries as a result.

Nor, on the evidence presented in this case, do I find that Mr. Faerber-MacMillan suffered only a cervical spinal cord injury. This physical injury has manifestly impaired most of Mr. Faerber-MacMillan's physiological and anatomical functions, but it has not diminished what Drs. Kaminska, Stewart and Kirkpatrick all described as his high average intelligence. Yet, Mr. Faerber-MacMillan's capacity to use his intellectual abilities has clearly been impaired by a psychological impairment. Dr. Stewart wrote: "Depression reduces one's ability to process information and respond to it. I do not think these results show anything but a depressed young man of average high intelligence".³⁶ Referring also to Mr. Faerber-MacMillan's intellectual ability, Dr. Kirkpatrick suggested no reason to question Dr. Cancellieri's view that "Mr. Faerber-MacMillan's high levels of emotional distress and underlying characterological factors were also contributing substantially to disability".³⁷Mr. Faerber-MacMillan's motivation to use his remaining physical abilities has also been adversely affected by his depression. As Dr. Kaminska wrote: "... the impression is that the reported on-going problems in accessing things are only partly responsible for his significant passivity and dependency on others. Mr. Faerber-MacMillan believes that many tasks are too difficult for him and his motivation is stifled by his helplessness and hopelessness."³⁸

This evidence establishes that the psychological impairment Mr. Faerber-MacMillan sustained as a result of the accident limits his capacity to use even his remaining abilities, that is, those of his abilities which were not directly impaired by his cervical spinal cord injury.

If the Schedule did not recognize the possibility of psychological injury, I would agree that this psychological impairment would have to be described as an indirect consequence of Mr. Faerber-MacMillan's devastating physical injury. However, since the Schedule specifically recognizes the possibility of psychological injury in some circumstances, while not precluding the possibility of psychological injury in any other circumstances, I find that Mr. Faerber-MacMillan's psychological impairment can be and is more accurately described as a direct consequence of a psychological injury he suffered as a result of the accident.

Psychological injury as a result of alleged mishandling of Mr. Faerber-MacMillan's claims

This finding makes it unnecessary for me to deal with the Applicant's additional allegation that he also suffered a psychological injury as a result of Allstate's mishandling of his claims for computer and environmental control equipment and for home maintenance. I would, however, have rejected this argument as unsupported by the evidence. Put at its highest, Dr. Kaminska's testimony only establishes that alleged delays with respect to some of these items caused Mr. Faerber-MacMillan to become "anxious and angry"³⁹ or "distressed"⁴⁰and that he experienced "frustration and dysphoria about such things as not having computer so that he can do his homework on his own".⁴¹ But, as mentioned earlier, Dr. Kaminska identified the motor vehicle accident⁴², not delays in obtaining equipment or repairs, as the cause of Mr. Faerber-MacMillan's major depressive disorder.

Moreover, I was informed at the hearing that the Applicant intends to advance a claim for a special award in separate proceedings with respect to these same alleged delays. It is not clear to me that an applicant is entitled to rely upon delays in the processing of his or her claim as both the basis for a claim for a special award and as the cause of psychological impairment for which benefits are claimed under the Schedule.

Analysis and evidence with respect to the question whether Mr. Faerber-MacMillan's psychological injury would "by itself" have required attendant care services:

Analysis

The higher monthly maximum stipulated in section 47(6) is plainly not intended to benefit every insured person who suffers one of the devastating injuries mentioned in section 47(5). Even if the attendant care services required by such an injury exceeds the monthly maximum stipulated in section 47(5), the insured person is only entitled to the higher monthly maximum stipulated in section 47(6) if he or she also suffered "another injury that by itself would have required" attendant care services.

In my opinion, the words "by itself" in section 47(6) should not be interpreted to mean that Mr. Faerber-MacMillan must establish that he would have required attendant care services if he had only suffered the psychological injury, "by itself". I agree with counsel for the Insurer that, on the facts of this case, Mr. Faerber-MacMillan could not establish that he would have required attendant care services as a result of a psychological injury had he not also suffered a cervical spinal cord injury. But, despite the use of the conditional verb tense "would have required" in section 47(6), its application does not, in my opinion, involve a notional denial of the existence of Mr. Faerber-MacMillan's cervical spinal cord injury or of the fact that this latter injury requires attendant care services. Rather, I interpret the words "by itself" in section 47(6) to mean that Mr. Faerber-MacMillan must establish that his psychological injury requires additional and separate attendant care services, over and above those required by his cervical spinal cord injury. In my view, it is these additional and separate attendant care services, required by an additional and separate injury, which the higher maximum in section 47(6) is intended to accommodate.

To determine whether or not Mr. Faerber-MacMillan has established that his psychological injury requires additional and separate attendant care services, over and above those required by his cervical spinal cord injury, I consider the following evidence.

The DAC report

On December 14, 1998, Mr. Faerber-MacMillan's attendant care needs were assessed by an occupational therapist and a registered nurse at a DAC operating out of the West Park Hospital in Toronto. In accordance with section 47(9), Mr. Faerber-MacMillan's attendant care needs were assessed under the headings specified in the three levels of care contemplated by Form 1. The DAC report confirms that the assessors focussed throughout on Mr. Faerber-MacMillan's physical capacity to perform the activities mentioned under the various headings and the time required, expressed in minutes, to have attendants assist in their performance.

However, the DAC assessors used a different method for calculating the number of minutes to be allocated to Mr. Faerber-MacMillan's attendant care needs under the level 2 heading "Spinal Cord Injuries". That heading called upon the DAC assessors to determine whether, as a quadriplegic, Mr. Faerber-MacMillan "requires assistance to transfer from bed to wheelchair, periodic turning, genitourinary care" or whether he "lacks the physical capacity to be self-sufficient in an emergency situation". The assessors found that "Mr. Faerber-MacMillan is currently unable to independently call for emergency assistance from his bed, transfer from his bed to wheelchair independently or exit his home..." and that he therefore "requires 24 hour supervision to ensure his safety." But instead of allocating 24 hours to this heading, the assessors used the following formula and logic to calculate the number of minutes to be allocated:

A. Total minutes in a week:

10, 080

B. The total minutes per week of attendant care outlined in other sections of this report whereby an attendant is already present and can ensure Mr. Faerber-MacMillan's safety:

6,813.2

C. The total minutes per week of attendant care under the 'Spinal Cord Injuries' section of this report (A - B = C):

3,266.8⁴³

Another level 2 heading is entitled "Attendant Care on an Intermittent Basis ". Form 1 indicates that this heading applies to a "client" who "lives alone or is left alone in the day" and it requires the DAC assessors to "determine the degree to which the client may be dependent on others (for example, meals, laundry, housekeeping)". In considering Mr. Faerber-MacMillan's need for attendant care under this heading, the assessors did not refer to Mr. Faerber-MacMillan's depression or to his being left alone and they made no attempt to determine the degree to which his accident may have rendered him psychologically impaired and dependent on others.

This was not because the DAC assessors were unaware of Mr. Faerber-MacMillan's problems with depression. While they did not have Dr. Kaminska's reports (her first report was not written until February 1999), their report quoted from the 1996 Lyndhurst Hospital Discharge Report which had mentioned depression⁴⁴, referred to 1997 correspondence from a psychologist, Dr. Wendy LeDoux, who had reported depression⁴⁵, and set out a list of Mr. Faerber-MacMillan's continuing symptoms which included the following:

– Feeling 'down' since the accident

– Worried about the amount of time and assistance he requires from his parents who are busy with their work and other responsibilities

– Concerned that he is unable to care for himself or get assistance when he is left alone for up to a total of 6 hours per day⁴⁶

Nevertheless, in assessing Mr. Faerber-MacMillan's need for "Attendant Care on an Intermittent Basis", the DAC assessors focussed exclusively on how the physical limitations caused by his cervical spinal cord injury prevented him from performing the physical acts associated with the three activities specified as examples in the heading, that is, "meals, laundry and housekeeping".⁴⁷

The DAC assessors determined that Mr. Faerber-MacMillan required 10,080 minutes of attendant care per week and they calculated the monthly cost of such care to be $6,604.15.⁴⁸This figure underestimated the deemed cost of such care because it was based on 1996, rather than 1998, 1999 and 2000 hourly rates, but it still exceeded the monthly maximum stipulated by section 47(5). Since receipt of the DAC report, the Insurer has paid the monthly maximum stipulated by section 47(5), as indexed under section 80. That monthly amount for the year 2000 is $6,552.87 and is paid in bi-weekly cheques of $3,024.40.⁴⁹

The DAC assessors did not, at any point in their report, refer to the monthly maximums established by sections 47(5) and 47(6) or acknowledge that these sections might require them to identify or distinguish between different types of injuries.

Drs. Kaminska and Kirkpatrick

In her report of April 25, 2000, Dr. Kaminska clearly indicated that in addition to the specialized attendant care Mr. Faerber-MacMillan requires because of his serious physical impairments, he requires non-specialized, ongoing attendant care because of his psychological impairment. She wrote:

The overall impression is that Mr. Faerber-MacMillan remains significantly depressed. In fact, at this time his ability to function autonomously in regard to managing such affairs as his finances, scheduling, hiring and supervising attendants is highly questionable. Mr. Faerber-MacMillan finds it very challenging to engage in such activities and remains dependent on his family for managing his affairs. It appears that at this time Mr. Faerber-MacMillan's need for consistent support from others goes beyond his obvious requirement for specialized attendant care and that this on-going support is required because of unabated depressive disorder.⁵⁰

Dr. Kaminska's report also noted Mr. Faerber-MacMillan's "recurrent feeling of being a burden to his family".⁵¹ In this regard, her report contains the following passage:

Mr. Faerber-MacMillan was quiet and volunteered little information during the joint interview with his mother on February 2, 2000. His mother, however, reported numerous on-going problems in providing care to her son. Of significant concern to Ms. MacMillan is lack of sufficient funds to secure 24-hour attendant care for her son. She is frustrated that time and effort has to be designated to providing attendant care to her son rather than to spending time with him in a manner consistent with regular family interactions. Also, Ms. MacMillan feels that her ability to care for her younger children is being adversely affected by the multiple demands associated with attending to her son. At present, the family provides attendant care to Mr. Faerber-MacMillan in early mornings, afternoons and early nights, for approximately 12 hours a day, in addition to weekends.⁵²

In her testimony at the hearing, Dr. Kaminska expanded on these themes through the following evidence:

Q. In someone in Mark's situation, what would be the course of treatment? A. In Mark's situation, I felt that the course of treatment would be to increase, to provide him with a caregiver who would attend to the psychological issues on a regular basis. I believe this is needed for him to be able to productively, more productively spend his time, to address any issues, you know, perhaps his anxiety or reexperiencing trauma if they occur, but also to facilitate his ability to manage time to take care of his needs in terms of daily activities, becoming an advocate, dealing with his attendants, dealing with appointments, scheduling appointments.

All these functions he's not performing, but he should be capable of.

That would give him a sense of independence and would further alleviate, you know, depression.

Q. Some of these functions are being performed by Ms. MacMillan.

MR. ARBITRATOR: By whom?

BY MR. FALCONERI:

Q. Ms. MacMillan.

A. Yes, I understand that they are.

Q. Do you have any thoughts about that?

A. What I understand both from Mr. Faerber-MacMillan's and his mother's remarks is there is the understanding that the family, individual members within the family care about each other. But there is the tension, and the tension is specifically between Mr. Faerber-MacMillan and his mother. And the tension arises from his perception of his mother, you know, perhaps carrying on with certain activities at certain times that are not convenient to him.

He is also, there is also tension in regards to the dynamic, more in terms of the family history and the relationship, the first marriage and his feelings about his role within that family. So Mark is experiencing tension around his mother, and at times or, you know, quite often he would actually withdraw to avoid interacting and the tension.

He did tell me that he was trying to, he was making attempts to let his mother know about his needs, such as, you know, when he hoped to have maybe a bit more relax time within the apartment. His mother was coming and cleaning and doing other or, you know, other activities. And yet he couldn't, they couldn't resolve these issues. He also felt that Mrs. MacMillan was bringing up, you know, the issues from her first marriage, and that was also difficult for him.

I should add in terms of his relationship with his stepfather, I think that he is experiencing quite a bit of guilt because he perceives his stepfather as delegating a lot of his time to him and basically caring for him in the afternoons and in the evenings.⁵³

In her report of June 21, 2000, Dr. Kirkpatrick also noted the psychological problems associated with Mr. Faerber-MacMillan's dependence on his family and she referred specifically to his being left alone as a factor contributing to his residual depression. She recommended increased attendant care to address these problems, subject to certain conditions. She wrote:

In assessing Mr. Faerber-MacMillan, I noted his concerns that the lengthy periods during which he was without attendant care placed a considerable burden on his family and sometimes left him alone for extended periods. From a psychological perspective, having increased access to attendant care would probably help Mr. Faerber-MacMillan to feel less dependent on family and more in control of his life initially but in the long run might simply foster more dependence. From a purely psychological/psychiatric perspective, I would suggest that if further attendant care is to be made available to Mr. Faerber-MacMillan, it should be focused on helping him to participate in activities outside the home, such as attending classes or recreational events on his own. In other words, I would see an increase in attendant care as being emotionally beneficial to Mr. Faerber-MacMillan if it can be used to promote his autonomy rather than simply easing his emotional confinement in his own home.

In summary, it is my impression that Mr. Faerber-MacMillan could benefit from increased attendant assistance, at least in the short term, as long as this was focused on promoting his engagement with activities outside the home and furthering his confidence in his ability to cope safely with independent activities. It is also my opinion that his residual depression arises in part from boredom, lack of stimulation and loneliness, and that engagement in activities outside the home is likely to have an ameliorating effect. I would expect Mr. Faerber-MacMillan's need for attendant care, from a psychological perspective, to decrease as he became more engaged in activities he found rewarding and developed a wider social circle.⁵⁴

Attendant care services currently provided to Mr. Faerber-MacMillan

Mr. Faerber-MacMillan provided the following evidence about his need for attendant care and the daily schedule under which it is provided:

Q. What do you know about how many hours a day you require an attendant?

A. I basically know, I just basically know that I need help all the time.

My parents are, like if I can't get an attendant, it's my parents.

Q. So it's all day every day?

A. Yes.

Q. All right. And you have attendants coming to your home now, I take it?

A. Yes.

Q. Could you describe the schedule of the attendant, of the attendance of the attendants?

A. It's from twelve midnight to seven o'clock in the morning and from nine or ten o'clock to about two or three o'clock in the afternoon.

Q. And these attendants are paid by whom?

A. The Insurer.

Q. And do you know how much these attendants that attend at your home get paid?

A. No. My mom handles my money.⁵⁵

Mr. Faerber-MacMillan's mother, Ms. MacMillan, confirmed that she handles the money provided by Allstate for attendant care. She also testified:

Q. Okay. And are you then the one that makes the arrangements with the attendants to schedule them and pay them?

A. Correct.

Q. And you are the one that decides which hours they come?

A. Correct.

Q. And is there some reason that you've chosen between the hours of twelve and midnight and 7:00 a.m. and then between 9:00 or 10:00 and 2:00 or 3:00? A. Because that's when Mark is in bed. That's when he needs to go to bed.

Q. All right.

A. Those are the times that he needs the attendant there because of what he needs to have done. He needs the attendant care 24 hours. But I thought by not having sufficient money, we could between myself and my husband and my father-in-law, we could fill in the blanks when Mark is home.

Q. And is that what in fact was happening?

A. What has happened?

Q. That you and your husband and your father-in-law have filled in the blanks?

A. Not by choice.

Q. That's not my question. Is that in fact what had happened?

A. It has happened.⁵⁶

Analysis and Conclusion:

In my view, the DAC assessors took an unduly restrictive approach to the determination of Mr. Faerber-MacMillan's need for attendant care.

First, their report did not refer to the monthly maximums established by sections 47(5) and 47(6) or acknowledge that these sections might require them to identify or distinguish between different types of injuries. It would appear that the DAC assessors never turned their minds to the possibility that Mr. Faerber-MacMillan had suffered a psychological injury as well as a cervical spinal cord injury.

Second, with respect to Mr. Faerber-MacMillan's need for "Attendant Care on an Intermittent Basis", the DAC assessors ignored the fact that Form 1 only refers to "meals, laundry and housekeeping" as examples of how the accident may have left Mr. Faerber-MacMillan "dependent on others". Section 47 is intended to provide attendant care services to a person who "sustains an impairment as a result of the accident". As noted earlier, the definition in section 1 of the Schedule recognizes that an impairment can be psychological in nature. There is nothing in the language used to define "Attendant Care on an Intermittent Basis" which modifies that definition. On the contrary, this language can, in my opinion, be applied to recognize attendant care needs required by a psychological impairment, whether caused indirectly by a physical injury or directly by a psychological injury.

This said, however, I find that the maximum stipulated by section 47(5) applies to this case even if Mr. Faerber-MacMillan's physical impairments are attributed to his cervical spinal cord injury, his psychological impairment is attributed to a psychological injury and the attendant care services required by each injury is then assessed. That is, in fact, substantially how Mr. Faerber-MacMillan's attendant care needs have been assessed as can be seen by comparing the DAC assessment of Mr. Faerber-MacMillan's attendant care needs with the evidence of Drs. Kaminska and Kirkpatrick regarding Mr. Faerber-MacMillan's attendant care needs.

The DAC report establishes that Mr. Faerber-MacMillan requires 24-hour attendant care to deal with his physical impairments. He should not, in other words, be left alone. This was recognized by the DAC assessors under the level 2 heading "Spinal Cord Injuries", a heading which contemplates non-specialized attendant care paid at the minimum wage. The evidence of Drs. Kaminska and Kirkpatrick establishes that Mr. Faerber-MacMillan requires attendant care for his psychological impairment so that he is not left either alone or dependent on his family. As previously observed, this kind of attendant care could be recognized under the level 2 heading "Attendant Care on an Intermittent Basis ", again paid at minimum wage.

In my opinion, this evidence does not support a finding that Mr. Faerber-MacMillan's psychological injury has caused a psychological impairment which requires additional and separate attendant care services, over and above those required by the physical impairments caused by his cervical spinal cord injury. Rather, I find that if, in accordance with the DAC report, Mr. Faerber-MacMillan actually received 24-hour attendant care in respect of his physical impairments, he would not be left either alone or dependent on his family and hence would not require additional and separate attendant care in respect of his psychological impairment. I recognize that Mr. Faerber-MacMillan does not actually receive 24-hour attendant care because of the maximum stipulated by section 47(5). I nevertheless find that the higher maximum stipulated by section 47(6) does not apply in this case because, in my view, the evidence establishes that Mr. Faerber-MacMillan's additional and separate psychological injury requires attendant care services which are similar to and overlapping with, not additional to and separate from, those required by his cervical spinal cord injury.

If I am wrong in reaching this conclusion, I would assess Mr. Faerber-MacMillan's entitlement to attendant care services in respect of the psychological impairment caused by his psychological injury as the difference between the monthly cost of the attendant care services assessed by the DAC, using year 2000 rates, that is, $6,740.58 per month, and the amount Mr. Faerber-MacMillan receives each month in accordance with the maximum stipulated by section 47(5), that is, $6,552.87. That difference is $187.71 per month.

I acknowledge that even on this alternative conclusion, $187.71 per month may appear insufficient to relieve Mr. Faerber-MacMillan's family members of the substantial burden they are currently carrying with respect to his care. But I observe that despite Ms. MacMillan's assertion that this burden has not been assumed by choice, the deemed cost of the non-family attendant care currently being provided to Mr. Faerber-MacMillan is actually lower than the amount he receives from Allstate to pay for it. Based on the evidence that Mr. Faerber-MacMillan receives between 11 and 13 hours of non-family attendant care a day, and assuming that all of this care is being paid for at the highest, level 3 hourly rate, the deemed cost of such care is, at most, $5,982.98 per month, that is, $569.89 less than the $6,552.87 Mr. Faerber-MacMillan receives from Allstate each month in respect of his attendant care needs.

Moreover, since section 47(2) recognizes that attendant care can be provided by family members who, as in this case, do not "possess any special qualifications ", they could presumably be replaced by attendants who do not "possess any special qualifications ". Neither the DAC report nor the evidence of Drs. Kaminska and Kirkpatrick identifies a need for special qualifications with respect to all of the attendant care required by Mr. Faerber-MacMillan. The DAC report indicates that some of Mr. Faerber-MacMillan's care could be provided by attendants whose deemed hourly wage would fall under the lowest, level 2 rate. Dr. Kaminska's evidence implies the same thing, though without referring specifically to hourly rates.

I appreciate that the real, as opposed to the deemed, cost of attendant services may sharply limit the real choices open to Mr. Faerber-MacMillan's family. However, I heard no evidence about the real cost of obtaining such services, no doubt because counsel recognized that I could not, in any event, rely upon such evidence in reaching my decision. I am bound by the deemed hourly rates stipulated in the Schedule.

EXPENSES:

If necessary, I will address the issue of expenses in accordance with the Dispute Resolution Practice Code.

November 27, 2000

David Leitch Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 212

FSCO A99-000201

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARK FAERBER-MACMILLAN

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:

1. Allstate is obliged to pay Mr. Faerber-MacMillan attendant care benefits at the monthly rate of $6,552.87.

November 27, 2000

David Leitch Arbitrator

Date

Footnotes

1. 1The Applicant is sometimes referred to as Mr. MacMillan. To avoid confusion, I refer to him as Mr. Faerber-MacMillan throughout this decision, even when quoting from reports and transcripts of testimony.
2. 2The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
3. 3Exhibit 4, Tabs 4 and 5
4. 4Exhibit 3, Tab 8
5. 5Exhibit 3, Tab 8, p. 12
6. 6Exhibit 3, Tab 8, p. 12
7. 7Exhibit 3, Tab 8, p. 12
8. 8Exhibit 2.2, Tab 1, p. 20
9. 9Exhibit 16, transcript of Mr. Faerber-MacMillan's evidence, p. 35
10. 10Exhibit 16, transcript of Mr. Faerber-MacMillan's evidence, p. 166.
11. 11Exhibit 3, Tab 8, p. 13
12. 12Exhibit 16, transcript of Mr. Faerber-MacMillan's evidence, p. 85.
13. 13Exhibit 3, Tab 8, pp. 13-14
14. 14Exhibit 3, Tab 8, p. 17
15. 15Exhibit 3, Tab 8, p. 20
16. 16Exhibit 5, Tab 3
17. 17Exhibit 2.2, Tab 6
18. 18Exhibit 2.2, Tab 6, p. 11-12
19. 19Exhibit 15, the transcript of Dr. Kaminska's evidence, p. 77-78
20. 20Exhibit 15, the transcript of Dr. Kaminska's evidence, p. 50
21. 21Exhibit 15, the transcript of Dr. Kaminska's evidence, pp. 35-36
22. 22Exhibit 15, the transcript of Dr. Kaminska's evidence, p. 85
23. 23Exhibit 2.2, Tab 7
24. 24Exhibit 9
25. 25Exhibit 5, Tab 1, pp. 6-7
26. 26Exhibit 5, Tab 1, p. 8
27. 27Exhibit 17, the transcript of Dr. Stewart's testimony, p. 117
28. 28Exhibit 17, the transcript of Dr. Stewart's testimony, p. 98
29. 29Exhibit 17, the transcript of Dr. Stewart's testimony, p. 96-97
30. 30Exhibit 5, Tab 2
31. 31Exhibit 5, Tab 2, p. 10
32. 32Exhibit 5, Tab 2, p. 7
33. 33Other evidence establishes that Mr. Faerber-MacMillan's cognitive functions were not affected by the 1995 accident and Mr. Faerber-MacMillan did not allege that he had suffered a brain injury of this kind.
34. 34Exhibit 5, Tab 2, p. 8
35. 35Exhibit 5, Tab 2, p. 10
36. 36Exhibit 5, Tab 1, p. 7
37. 37Exhibit 5, Tab 2, p. 8
38. 38Exhibit 2.2, Tab 6, p. 12
39. 39Exhibit 15, the transcipt of Dr. Kaminska's evidence, p. 34
40. 40Exhibit 15, the transcipt of Dr. Kaminska's evidence, p. 35
41. 41Exhibit 15, the transcipt of Dr. Kaminska's evidence, p. 42
42. 42Exhibit 15, the transcript of Dr.Kaminska's evidence, p. 35-36
43. 43Exhibit 4, Tab 5, p. 11
44. 44Exhibit 4, Tab 5, p. 11
45. 45Exhibit 4, Tab 5, pp. 2 and 4. I was not supplied with copies of this correspondence though its contents were mentioned by Dr. Kaminska in her first report at p. 13.
46. 46Exhibit 4, Tab 5, p. 10
47. 47Exhibit 4, Tab 5, pp. 25-26
48. 48Exhibit 4, Tab 4, p. 7 of 7
49. 49Exhibit 17, transcript of the evidence of Trent Caulfield, p. 130
50. 50Exhibit 2.2, Tab 6, p. 12
51. 51Exhibit 2.2, Tab 6, p. 6
52. 52Exhibit 2.2, Tab 6, p. 4
53. 53Exhibit 15, the transcript of Dr. Kaminska's evidence, pp. 46-48
54. 54Exhibit 5, Tab 2
55. 55Exhibit 16, transcript of the evidence of Mr. Faerber-MacMillan, pp. 52-53
56. 56Exhibit 16, transcript of the evidence of Ms. MacMillan, pp.144-145```