Neutral Citation: 2000 ONFSCDRS 226

FSCO A99-000110

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ZITA DA ROSA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: K. Julaine Palmer

Heard: September 11, 12, 13, and 18, 2000 at FSCO and September 14, 2000 at the O'Neill Centre, Toronto. Additional submissions received November 29, 2000

Appearances: Rebecca Nelson for Mrs. Da Rosa Ian Kirby for Allstate Insurance Company of Canada

Issues:

Zita Da Rosa was seriously injured in a motor vehicle accident on January 21, 1995. She continues to receive statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The parties were unable to resolve their dispute about certain supplementary medical and rehabilitation benefits through mediation and Mrs. Da Rosa 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:

1. Is Mrs. Da Rosa entitled to supplementary medical expenses for chronic care co-payments claimed pursuant to paragraph 36(1)(a) and section 47 of the Schedule?

2. Is Mrs. Da Rosa entitled to supplementary medical benefits for the following services, in the following approximate amounts, pursuant to section 36 of the Schedule: Physiotherapy Assessment: $116.67; Physiotherapy Treatment: $878.60 per year, OT Assessment: $779.10; OT Treatment: $563.34 per year; OT Vocational Assessment: $1,760.34, and OT Treatment: $93.89 per year?

3. Is Mrs. Da Rosa entitled to rehabilitation benefits for the following services in the following approximate annual amounts, from January 1999, and ongoing:

Attendant:

$24,060.80

Support worker:

$69,831.80

Companion:

$60,663.00

Homemaker:

$21,929.20

Are these claims attendant care benefits under section 47 or medical / rehabilitation benefits under sections 36 and 40?

4. Is Mrs. Da Rosa entitled to rehabilitation benefits for the following services, from April 27, 1995 to December 31, 1998: a Community Support Worker, in the approximate amount of $94,217.76; a Registered Practical Nurse, in the approximate amount of $212,320.50 per year; and a Companion, pursuant to section 40 of the Schedule?

5. Is Mrs. Da Rosa entitled to rehabilitation benefits for services provided by a case manager, pursuant to subparagraph 40(5)(c) of the Schedule?

6. Is Mrs. Da Rosa entitled to rehabilitation benefits for a report of Rehabilitation Management Inc. dated December 8, 1998, in the amount of $2,237.18, pursuant to section 40 or 57 of the Schedule?

7. Is Allstate liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, because it unreasonably withheld or delayed payments to Mrs. Da Rosa?

8. Is Allstate liable to pay Mrs. Da Rosa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, ?

Mrs. Da Rosa sought prior approval of funding for the benefits claimed under numbers 2 and 3 above, pursuant to section 69 of the Schedule. She also claims interest on any amounts owing.

Result:

1. (a) Allstate Insurance Company of Canada shall pay Zita Da Rosa $13,063.99 in supplementary medical expenses for chronic care co-payments and $39,303.66 in attendant care benefits for long-term care accommodation fees pursuant to paragraphs 36(1)(a) and 47(1)(b), respectively, of the Schedule, plus interest.

(b) Allstate Insurance Company of Canada shall pay Zita Da Rosa $890.89 per month from December 1, 2000, ongoing, to cover the basic accommodation charges of the O'Neill Centre.

2. Allstate Insurance Company of Canada shall pay Zita Da Rosa supplementary medical benefits for: 2 Physiotherapy Assessments @ $116.67 = $233.34; Physiotherapy Treatment and supervision of intervention by attendant: $878.60 + 4 additional hours @ $87.86 = $351.44. Total $1,230.04; Occupational Therapy and Vocational Assessment: $1,660; Occupational Therapy Treatment: $600.

3. Allstate Insurance Company of Canada shall pay Zita Da Rosa rehabilitation benefits for the following services, from January 1999, and ongoing: community support worker— $47.83/hour x 8 hours per week.

4. Zita Da Rosa is not entitled to rehabilitation benefits for the following services, from April 27, 1995 to February 12, 1997: a Community Support Worker, a Registered Practical Nurse, and a Companion, pursuant to section 40 of the Schedule.

Allstate Insurance Company of Canada shall pay Zita Da Rosa benefits for a health care aid for an additional two days per week from June 1, 1997 at eight hours per day, until Mrs. Carrera began working five days per week (in the fall of 1999). Allstate Insurance Company of Canada shall pay Zita Da Rosa rehabilitation benefits for a community support worker from June 1, 1997 to December 31, 1998 at $47.83/hour x 8 hours per week.

5. Allstate Insurance Company of Canada shall pay Zita Da Rosa for the services of a case manager of her choice, from the date of this order, ongoing, pursuant to section 40(5)(c) of the Schedule.

6. Allstate Insurance Company of Canada shall pay Zita Da Rosa $2,237.18 for a report of Rehabilitation Management Inc. dated December 8, 1998, pursuant to section 57 of the Schedule, plus interest, at 2 percent per month, compounded monthly, according to the provisions of section 68 of the Schedule.

7. Allstate Insurance Company of Canada shall pay Zita Da Rosa a special award pursuant to subsection 282(10) of the Insurance Act, of $10,000, inclusive of interest, because it unreasonably withheld chronic care co-payments and long-term care accommodation fees from Mrs. Da Rosa.

8. Allstate Insurance Company of Canada shall pay Zita Da Rosa interest on all amounts owing except the special award, at 2 percent per month, compounded monthly, according to the provisions of section 68 of the Schedule.

9. Allstate Insurance Company of Canada shall pay Zita Da Rosa two-thirds of her expenses in respect of the arbitration under section 282(11) of the Insurance Act, .

EVIDENCE AND ANALYSIS:

No one disputes that Zita Da Rosa, now age 56, received very serious injuries in a motor vehicle accident on January 21, 1995. Mrs. Da Rosa suffered a severe brain injury that has resulted in right hemiparesis and significant cognitive impairment. Mrs. Da Rosa also suffered facial fractures and injuries to her right eye, a ruptured bladder, a fractured pelvis, a fractured sternum, injuries to her right shoulder and a dislocated right knee. Mrs. Da Rosa was transferred from York County Hospital to Sunnybrook Hospital immediately after the accident. She remained at Sunnybrook for three months until April 27, 1995 when she moved to Riverdale Hospital. She lived at Riverdale Hospital for almost two years until February 12, 1997, when she moved to the O'Neill Centre, a nursing home. Mrs. Da Rosa continues to reside at the O'Neill Centre.

Although Mrs. Da Rosa reportedly spoke some English before the accident, she is now able to speak only Portuguese. She understands some English. Mrs. Da Rosa walks using a single cane with an enlarged tip and drags her right leg slightly, due to the hemiparesis. She generally moves at a slow pace. Mrs. Da Rosa has residual symptoms of pain and decreased range of movement of her right shoulder as a result of the accident. Her right arm is spastic and weak. Mrs. Da Rosa's main residual impairment, however, remains her brain injury.

Mrs. Da Rosa is significantly cognitively impaired. She is prone to periods of severe agitation and emotional outbursts. She requires assistance in most areas of self-care, including physical assistance with bathing and dressing. Mrs. Da Rosa is able to feed herself, but requires help to set up her meal.

Mrs. Da Rosa emigrated from Portugal to Ontario in the 1970s, with her husband and daughter. Mr. Da Rosa died about four years before the accident. Mrs. Da Rosa continued to live with her daughter in Bradford, Ontario. Before the accident, Mrs. Da Rosa cared for her daughter, who is mentally challenged. At the time of the accident her daughter was 29 years old. Mrs. Da Rosa and her daughter lived very modestly, relying on two small pensions. After the accident, Allstate paid Mrs. Da Rosa a caregiver benefit under Part 4 of the Schedule. Allstate continues to pay those benefits, which are indexed annually. Currently, Mrs. Da Rosa receives $546.06 every two weeks, that is about $14,200 per year.

The Office of the Public Guardian and Trustee managed Mrs. Da Rosa's financial affairs after the accident until June 25, 1996, when Mr. Gualdino Silveira, Mrs. Da Rosa's brother, assumed this responsibility. Mr. Silveira testified at the arbitration hearing and retained and instructed lawyers on his sister’s behalf.

Until shortly before the release of this decision, there were ten issues in dispute in this arbitration. On November 28, 2000, I received a letter from the Applicant’s lawyer withdrawing from this arbitration a proposal for Mrs. Da Rosa to live in her brother’s home and withdrawing a claim for a modified minivan. These reasons for decision have been significantly altered by these late withdrawals of issues in dispute.

In this decision I will consider the question of the co-payment costs of Riverdale Hospital and the O'Neill Centre, then the issue of the reasonable expenses required for Mrs. Da Rosa's care. First, however, it is appropriate to provide a brief overview of the Schedule's provisions in this area.

Overview of the Schedule's Provisions

The scheme of statutory benefits established in the Schedule provided for those injured in motor vehicle accidents from 1994 to late 1996 income replacement benefits, education disability benefits, caregiver benefits, or other disability benefits, provided the insured person met the eligibility tests for the benefit concerned. Mrs. Da Rosa receives weekly caregiver benefits from Allstate by virtue of the fact that, at the time of the accident, she was the primary caregiver of her adult daughter, who required care because of her mental incapacity (s.18). Although at a period 104 weeks after the accident, Mrs. Da Rosa had an opportunity to elect to receive loss of earning capacity benefits under Part 6 of the Schedule, she has decided to continue with the caregiver benefits. These benefits are not in dispute in this arbitration. Presumably, because of the nature of Mrs. Da Rosa’s injuries and her daughter’s age and disability, these caregiver payments will continue for many years to come.

The Schedule also established under Parts 7 and 8, supplementary medical benefits and rehabilitation benefits to a maximum limit of $1,002,000, in Mrs. Da Rosa's case. In addition, under Part 10 of the scheme, she is entitled to Attendant Care Benefits, the monthly maximum for which is established according to the severity of an insured person's injury to a maximum of $10,020 per month. Certain other pecuniary losses are compensated according to the provisions of Part 13 of the Schedule.

Part 17 of the Schedule describes how the Schedule interacts with other systems and benefits, and at subsection 75(13) provides that an insurer like Allstate does not have to pay any portion of an expense referred to in Parts 7, 8, 10, or 13 of the Schedule that is reasonably available under any plan or law.

As a result of the accident of January 21, 1995, Mrs. Da Rosa and Allstate have a relationship, within the framework of the Schedule, that is destined to last for Mrs. Da Rosa’s lifetime. Both parties have rights and responsibilities under the Schedule. The Insurance Act, provides for mediation and arbitration services at the Commission that will assist the parties to resolve any irreconcilable differences that may arise as the years pass.

Turning now to the issues in this arbitration:

Co-payments at Riverdale Hospital and the O'Neill Centre

Residents of long-term care facilities in Ontario pay an accommodation fee to these institutions. These payments are authorized under regulations to the Health Insurance Act, R.S.O. 1990, c. H.6 and the Nursing Homes Act, R.S.O. 1990, c. N.7., specifically, R.R.O. 1990, Regulation 552, section 10 and Regulation 832, sections 114 to 120. These fees are sometimes called co-payments.

Subparagraph 36(1)(a) of the Schedule prescribes that the insurer pay for all reasonable expenses for hospital services incurred as a result of the accident. Subparagraph 47(1)(b) of the Schedule provides that the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for services provided by a long-term care facility, including a nursing home or chronic care hospital. I find that co-payments or accommodation fees are part of these reasonable expenses. The Schedule uses mandatory language with regard to the payment of these expenses.

At the same time, the Schedule also provides, however, at subsection 75(13) under the heading "Collateral Benefits," for Part 7, 8, 10, and 13 benefits, that the insurer need not make any payment "for that portion of an expense that is reasonably available in respect of the insured person under any insurance plan or law or under any other plan or law." Ontario residents with low taxable incomes pay a lower accommodation fee to long-term care facilities for basic accommodation than residents with higher taxable incomes. The provisions dealing with the amounts they pay are set out in the regulations referred to above.

Paragraphs 36(1)(a) and 47(1)(b) of the Schedule are so clear in their provisions that it is difficult to understand Allstate's failure, from the outset in 1995, to openly and completely recognize its primary responsibility to pay for Mrs. Da Rosa’s care at the Riverdale Hospital and the O'Neill Centre. The only question should have been the calculation of the exact amount Allstate should pay to these institutions, since Mrs. Da Rosa would be entitled to a reduction in the accommodation or co-payment fee, on account of her very low taxable income.

However, that is not what happened here, and the co-payment issue, that should have been relatively simple, became very complex. In dealing with this issue, other sub-issues, such as the duties of the Insurer under the Schedule and the duties of guardians of property, have become enmeshed in the problem.

On September 22, 1998 Allstate's senior staff claim representative wrote to explain its position after Mrs. Da Rosa’s present lawyers applied for over $40,000 in attendant care benefits from Riverdale Hospital and the O'Neill Centre from October 1, 1996 to August 1, 1998:

In regard to the denial of the care facility expense; An explanation for denial of this expense was given to the previous solicitor and our position remains the same in that the CCAC [Community Care Access Centre] or Ministry have gone to the primary source of collateral for the basis of their co-payment. This would include your Client’s CPP income and the Caregiver Benefits paid by Allstate on behalf of your Client. However, if there are care expenses that are reasonable and necessary and exceed the primary source of collateral funds, we will give consideration to payment of these expenses as we have in the past.

This position reflects a gross misstatement of the law with respect to this expense. Allstate is primarily responsible to pay for Mrs. Da Rosa’s reasonable costs in hospital and long-term care, including any accommodation charges or co-payments. However, Allstate is not required to pay any portion of this expense that is reasonably available to Mrs. Da Rosa under any insurance plan or law. The Public Guardian and Trustee should never have paid Riverdale Hospital co-payments from Mrs. Da Rosa’s funds. Under the Schedule, the liability for hospital and long-term care costs is clearly Allstate s. Allstate should have paid.

On June 25, 1996, the Public Guardian and Trustee transferred guardianship for Mrs. Da Rosa's property to her brother, Mr. Silveira. As had the Public Trustee before him, he continued to make monthly payments to Riverdale Hospital from his sister’s funds. When Mrs. Da Rosa was transferred to the O'Neill Centre on February 12, 1997, Mr. Silveira began to pay the O'Neill Centre from his sister's funds. Since Mrs. Da Rosa's admission, Mr. Silveira has paid from her funds more than $1,200 per month. Beginning July 1, 2000, the payments stood at $1,308.39 per month.

I agree with the Insurer’s submission that the responsibility for making an application for a reduction in the accommodation fee charged by Riverdale Hospital and the O'Neill Centre should lie with the guardian of Mrs. Da Rosa's property, that is with the Public Trustee until June 25, 1996, and thereafter with Mr. Silveira. I also agree that this reduction is reasonably available in respect of the insured person under the laws of Ontario.

I accept that the insurer is not charged by the Schedule with the responsibility to advise an insured person or her representatives about the general law of co-payment or accommodation fees in Ontario. However, I find that an insurer has a duty not to mislead or misrepresent to an insured person and her representatives the insurer’s liability or responsibilities under the Schedule. Insured persons are entitled to rely on the information provided by insurers representatives about the benefits available under the Schedule. In this case, in particular, we are dealing with a very vulnerable insured person who suffered severe permanent brain injury as a result of the accident.

I have no evidence of Allstate's compliance with paragraphs 59(2)(b) and (c) of the Schedule, that is compliance with its duty to provide a written explanation of the benefits available under the regulation and written information to assist the person in applying for benefits. No one from Allstate testified at the hearing. The only evidence on this point is a series of letters from Allstate to the Public Trustee, in which the Insurer’s claim representative makes no reference to the Insurer's obligation to pay for either hospital or long-term care services but informs the Public Trustee that Mrs. Da Rosa qualifies for a weekly caregiver benefit of $250.50 (in 1995).

The first letter to the Public Trustee on the subject of accommodation fees, dated August 10, 1995, informs that the accommodation charge at Riverdale Hospital is $821.23 per month and will not be covered by OHIP. The letter goes on to detail the claim representative’s "understanding" that Mrs. Da Rosa's pension of approximately $400 per month would "go towards the cost of her accommodation at the Riverdale Hospital." By its letter of December 1, 1995, the claim representative indicated that Allstate would pay the balance of the accommodation charge after Mrs. Da Rosa contributed her pension income. Allstate sought written verification that Mrs. Da Rosa was not receiving social assistance prior to the accident "so that we may appropriately address the expenses that have to be paid to Riverdale Hospital for her accommodations."

With respect to this issue, Allstate should have properly corresponded with the Public Trustee only on the calculation of the accommodation fee Allstate would be required to pay under paragraph 36(1)(a) or 47(1)(b) of the Schedule, because Allstate was entitled to the benefit of a reduction in the co-payment on account of Mrs. Da Rosa’s very low taxable income. Allstate should have requested the Public Trustee to apply on Mrs. Da Rosa’s behalf for the reduction in accommodation fee. Instead, Allstate suggested to the Public Trustee that Mrs. Da Rosa’s pension would offset the accommodation costs at Riverdale Hospital.

In its letter of December 1, 1995 Allstate appears to initially understand its obligation to "appropriately address the expenses that have to be paid to Riverdale Hospital" but confuses the calculation of the appropriate amount of co-payment with the proper payor of the co-payment (Allstate). By failing to properly inform Mrs. Da Rosa’s representatives about the benefits available under the Schedule and Allstate’s obligations to pay for hospital services, Allstate’s claim representative caused Mrs. Da Rosa’s representatives to wrongly assume responsibility for payment of accommodation fees from her funds to Riverdale Hospital and, ultimately, the O'Neill Centre.

By 1999 Allstate's position with respect to its liability to pay had changed somewhat, but it still did not accept its responsibility under the Schedule. On January 21, 1999, Allstate's rehabilitation service advisor wrote that Allstate would not pay any chronic care co-payment after July 1, 1997 "based on Ministry of Health memo indicating non taxable income is not included in establishing a person's income." Allstate further advised that chronic care co-payments prior to July 1, 1997 would not be considered "without full disclosure and cooperation by the clients representative of full documentation of pre-accident financial status and how the co-payment was calculated. The Insurer is unable to ascertain whether the chronic care co-payment was owed for the period preceding July 1, 1997."

This position in 1999 still reflects a fundamental misunderstanding of who is primarily responsible for the hospital or long-term care charges (Allstate) and how co-payments or accommodation fees are established. Persons of very low taxable income would pay their entire taxable income in accommodation fees, less the $112 allowance for personal items, not pay nothing at all in a co-payment, as Allstate’s letter intimates.

In February 1996, a client representative in the office of the Public Trustee wrote to Allstate that she thought Riverdale Hospital had been forwarding invoices for the chronic care co-payment directly to Allstate. The Public Trustee's contact with Riverdale Hospital prompted Riverdale's Business Office to invoice the Public Trustee for $5,213.52 for co-payment charges from August 21, 1995 to the end of February 1996, which it paid from Mrs. Da Rosa's funds.

I do not have the Public Trustee's entire file relating to Mrs. Da Rosa, but a letter from Allstate dated May 16, 1996 confirms the Allstate Claim Representative's understanding that by then the Public Trustee was paying $730 per month to Riverdale Hospital. That amount was not the full amount of $819.53, prescribed by Ontario Regulation 552 at s.39(12), but reflects a partial exemption. The $730 per month payment in 1996 and early 1997 is confirmed in a letter from Riverdale Hospital dated June 26, 2000. At that time Mrs. Da Rosa’s monthly revenues consisted of a small CPP survivor pension of about $304.41 per month, interest income of about $50 per month, and bi-weekly caregiver benefits from Allstate of $512.52. The letter confirms Allstate's agreement with the Public Trustee that "these sources of income are more than ample to cover the cost of Mrs. Da Rosa's bed as well as the $112.00 paid out per month for personal expenses." This letter reflects Allstate’s continuing failure to inform Mrs. Da Rosa’s representatives about Allstate's obligations to pay for hospital services according to the provisions of the Schedule.

In September 2000 Mrs. Da Rosa's representatives applied for a reduction in her accommodation fee, retroactive to her admission to the O'Neill Centre. Based on Mrs. Da Rosa’s certified income tax information produced at the hearing, Ms. Linda Berry-Morgan of the O'Neill Centre calculated that to August 2000, Mrs. Da Rosa had overpaid the Centre by $17,088.26, that is by approximately $400 per month. I find that Mrs. Da Rosa’s net accommodation fees at the O'Neill Centre, after deductions for her low taxable income, ought to have been paid by Allstate. Accordingly, on account of Mrs. Da Rosa's care at the O'Neill Centre, Allstate should pay Mrs. Da Rosa $39,303.66 to the end of November 2000, calculated as set out in the following paragraph, using figures from exhibit 15. Allstate should also pay interest on this money.

In 1997 Allstate should have paid $467.67 for February 1997, and $836.62 per month from March to June 1997 (inclusive). In 1997-98. Allstate should have paid $854.04 per month for Mrs. Da Rosa’s long-term care at the O'Neill Centre. In 1998-99 Allstate should have paid $862.01 per month.² In 1999-2000 Allstate should have paid $870.95 and beginning July 2000 it should pay $890.89.

Allstate should begin paying the O'Neill Centre the reduced monthly rate now being paid by Mrs. Da Rosa ($890.89). However, Mrs. Da Rosa now has a credit balance at the O'Neill Centre which the O'Neill Centre is willing to reduce by the amount of her overpaid accommodation charges, over the next 18 to 19 months. Until the credit has been absorbed, Allstate should pay Mrs. Da Rosa personally $890.89 per month, or whatever the 2001 and 2002 basic accommodation charge becomes. Thereafter, Allstate should authorize Mrs. Da Rosa to have the O'Neill Centre bill it directly for her accommodation charges, as provided by section 69 of the Schedule.

With respect to chronic care co-payments made on Mrs. Da Rosa's behalf to Riverdale Hospital, those payments, after adjustment to reflect Mrs. Da Rosa's low taxable income, ought also to have been paid by Allstate. Allstate wrote on May 16, 1996 to the Public Trustee confirming the Allstate Claim Representative’s understanding that the Public Trustee had been paying $730 per month to Riverdale Hospital. That amount was not the full amount of $819.53 prescribed under the regulations for a person with no dependants, but reflected a partial exemption. The $730 per month payment is confirmed in a letter from Riverdale Hospital dated June 26, 2000. Allstate should pay Mrs. Da Rosa $13,063.99 on account of the hospital services she received at the Riverdale Hospital. Allstate should also pay interest on this money.

Finally, I note that under Regulation 832 under the Nursing Homes Act, the application for reduction appears to apply to the fees payable by a resident for basic accommodation. In making the above findings, I specifically do not find that Mrs. Da Rosa is entitled only to basic accommodation at the O'Neill Centre. Semi-private and private accommodation is also available at the nursing home, but has never been requested for Mrs. Da Rosa and is not the subject of this arbitration.

What were the reasonable expenses Mrs. Da Rosa required for her care from April 27, 1995 to December 31, 1998?

As the fourth issue in this arbitration sets out, Mrs. Da Rosa claims over $400,000 of rehabilitation services not received during this period. She claims entitlement to a community support worker, a registered practical nurse, and a companion from the time of her admission to Riverdale Hospital. In her lawyer's correspondence of January 11, 1999, entitled "Application for Expenses," he commented as follows on these retroactive expenses: "Although Ms. Da Rosa did not receive most of these services we are making this claim on the grounds that she should have been receiving these services from April of 1995."

The oral and documentary evidence supporting these claims was minimal, considering the very large sum claimed. The Riverdale Hospital records produced in this arbitration end suddenly at January 15, 1996 more than a year prior to Mrs. Da Rosa's discharge. Occasional reports after that date have been produced, for example, Dr. Gutman's report to the Ministry of Health dated July 22, 1996 indicating that maintenance occupational and physical therapy treatments are required. No clinical notes from the O'Neill Centre were produced.

Only one witness testified briefly in a manner critical of the treatment Mrs. Da Rosa received during this period. That witness was an occupational therapist in private practice, and no claim for additional occupational therapy in this time frame is sought.

While Mrs. Da Rosa was a resident of Riverdale Hospital, she received additional occupational therapy support from Ms. Susannah Gray and the team at "Inter-Action (Physical and Occupational Therapists in Neurological Care)," which was paid by Allstate. Ms. Gray testified at the hearing that Inter-Action’s additional services to Mrs. Da Rosa were terminated in the late summer of 1996, after a decision by Dr. Mory Gutman and the Riverdale team, that Mrs. Da Rosa had plateaued in her improvement. Ms. Gray testified she did not agree with the Riverdale team’s assessment and called Dr. Gutman to express her opinion, but was unable to change the decision.

Dr. Gutman and Ms. Kristin Dillon, an occupational therapist, both of whom were members of Mrs. Da Rosa’s team at Riverdale Hospital, also testified. Dr. Gutman expressed the view that by the summer of 1996, Mrs. Da Rosa had reached her maximum level of rehabilitation. He felt ongoing occupational and physical therapy should concentrate on maintaining the levels of function and achievement that Mrs. Da Rosa had then reached. When Mrs. Da Rosa was discharged from Riverdale Hospital in February 1997, Dr. Gutman and the team recommended she receive extra attendant care three days per week. Dr. Gutman testified that given Mrs. Da Rosa's age and loss of ability, in a nursing home where the level of nursing care is mandated by the Ministry of Health, Mrs. Da Rosa would be at risk of losing the gains she had made at Riverdale Hospital and would be at significant risk of major depression.

No one testified specifically in support of Mrs. Da Rosa's claims for entitlement to the services of a community support worker, registered practical nurse, or companion during the period from her admission to Riverdale Hospital until December 31, 1998. Ms. Sue Wilkinson, the occupational therapist who wrote the long-term functional needs and costs analysis, first met with Mrs. Da Rosa and Mr. Silveira in September 1998 for about two hours. At that time, Ms. Wilkinson did not feel Mrs. Da Rosa could be left alone safely, because she was not able to self monitor her behaviour and could be verbally and physically aggressive. Ms. Wilkinson felt Mrs. Da Rosa could not monitor her own safety even within the protected environment of the O'Neill Centre.

A report from occupational therapist Margarete Sagebiel dated September 3, 1997 was filed. This report was specifically commissioned by Allstate to determine Mrs. Da Rosa’s functional status in terms of self-care and to determine her attendant care needs. Besides Mrs. Da Rosa herself, her lawyer, her brother, and an independent interpreter, all were present during the assessment. Mrs. Da Rosa's attendant at that time was present for the last part of the assessment. Ms. Sagebiel's clinical opinion was that Mrs. Da Rosa requires attendant care for most self-care activities, sometimes by way of physical assistance, sometimes for supervision and prompting. She felt it was unfortunate that Mrs. Da Rosa was living in a setting where no one spoke her language. She commented on some poor grooming and two areas of skin breakdown that only her private attendant was aware of. Ms. Sagebiel thought communication was lacking between the attendant at that time and the nursing home staff. She felt other accommodations could be investigated where some staff and residents spoke Portuguese. In the alternative, she felt community social programs offered in Portuguese should be investigated to determine if Mrs. Da Rosa would be able to participate in them, or whether a volunteer friendly visitor who was Portuguese-speaking could be matched to Mrs. Da Rosa. Ms. Sagebiel did not comment on whether attendant care three days per week was adequate or inadequate. The attendant reported to Ms. Sagebiel that she and Mrs. Da Rosa went out for a walk in the neighbourhood on most days. Sometimes they would window shop and sometimes they would have lunch away from the O'Neill Centre. Ms. Sagebiel's report was sent directly to both Allstate and Mrs. Da Rosa's lawyer at that time.

Nine months after this assessment, on May 12, 1998 Allstate’s claim representative wrote to Mrs. Da Rosa’s then lawyer about this report and a supplementary report dated November 9, 1997 (which was not an exhibit at the arbitration), regarding nursing homes that had Portuguese-speaking staff and residents. Allstate's representative was interested in determining whether a transfer to a nursing home of this type would provide equal or better care for Mrs. Da Rosa without the need for an outside attendant. Allstate wanted Mrs. Da Rosa’s lawyer’s cooperation so that the occupational therapist could contact Mrs. Da Rosa’s family and carry out an "action plan" with respect to a transfer.

In the summer of 1998, Mr. Silveira engaged a new lawyer to represent his sister. In July and October 1998, Allstate’s claim representative wrote to the new lawyer hoping to meet with him about Mrs. Da Rosa’s attendant care and residence.

Lillian Carrera, Mrs. Da Rosa’s attendant for the past two years, testified that a Portuguese-speaking woman who works in the O'Neill Centre brings cassettes of Portuguese-language radio programming to Mrs. Da Rosa. She also testified that a volunteer who speaks Portuguese visits Mrs. Da Rosa twice a week, on Tuesday and Thursday. The evidence was not clear as to how long these activities had been taking place.

In assessing this claim by Mrs. Da Rosa for funding for a community support worker, registered practical nurse, and companion, the time period can be conveniently broken into two parts—from April 1995 to February 1997, when Mrs. Da Rosa was a patient at Riverdale Hospital, and from February 1997 to December 1998 when she was residing at the O'Neill Centre. During the period at Riverdale Hospital, Mrs. Da Rosa was receiving additional therapies, paid by Allstate, and varying amounts of attendant care, from five days to three days to two days per week, all as recommended or agreed by her Riverdale treatment team. When she moved to the O'Neill Centre, the level of attendant care was set at three days per week initially, as recommended by Dr. Gutman and the treatment team at Riverdale Hospital.

I find that the evidence presented on Mrs. Da Rosa's behalf has not convinced me, on a balance of probabilities, that she was reasonably entitled to additional rehabilitation, nursing, or attendant services under sections 40, 36, or 47 of the Schedule during the time she spent in Riverdale Hospital.

I find no evidence, other than that of the occupational therapist, Ms. Gray, to support that any additional services for Mrs. Da Rosa were requested and denied. In that case, I find that Ms. Gray and Dr. Gutman had a legitimate professional difference of opinion with respect to Mrs. Da Rosa's rehabilitation potential and that Allstate acted reasonably in accepting the treatment team's recommendations. In addition, a report from Dr. P. Parker, a physiatrist on the Neuro Rehabilitation Service at West Park Hospital, supported continuing the treatment at Inter-Action only for an additional three months after his examination in March 1996, which was carried out. Dr. Parker expected to see more improvement in Mrs. Da Rosa's balance, ambulation, and right arm function during that time. Furthermore, no additional occupational therapy treatment in this time period is claimed by the Applicant.

With respect to the first 21 months when Mrs. Da Rosa was a resident at the O'Neill Centre, from February 1997 to December 31, 1998, the situation is somewhat different. It appears, however, no additional care for Mrs. Da Rosa was formally requested, according to the evidence in this hearing, until Ms. Wilkinson's report of December 8, 1998 was provided to Allstate.

Mrs. Da Rosa was represented throughout this time period by both her brother, as the guardian of her property, and by a firm of lawyers (but not the present firm). All these parties participated in Margarete Sagebiel's occupational therapy assessment of Mrs. Da Rosa, which occurred in the late summer of 1997. From Ms. Sagebiel's report, it is clear that there were some problems with Mrs. Da Rosa’s care at that time. She was clearly concerned with Mrs. Da Rosa’s inability to communicate with her caregivers, other than her part-time attendant, who was then present only 24 hours per week.

From my reading of the correspondence between Allstate and Mrs. Da Rosa’s then solicitors, it is apparent that Allstate was concentrating on the communication issue and felt a reasonable way to deal with problems was to move Mrs. Da Rosa to a nursing home where caregivers and patients alike spoke Portuguese. Allstate hoped thereby to reduce or eliminate the private attendant care. Mrs. Da Rosa's representatives did not respond positively to these overtures, if they responded at all. No correspondence addresses this issue. I know from Mr. Silveira’s evidence that he had investigated one Portuguese-speaking nursing home in late 1996 or early 1997 and found it unsatisfactory as far as cleanliness was concerned. He preferred the O'Neill Centre and it was very close to both his workplace at the time and his home.

In my view the evidence establishes that Mrs. Da Rosa required more support during this period than was provided by Allstate. After her discharge from Riverdale Hospital, Mrs. Da Rosa’s care situation was not reconsidered until the assessment by Ms. Sagebiel in the late summer of 1997. Dr. Gutman and his team had recommended attendant care for three days per week (24 hours total) for the first three months after Mrs. Da Rosa’s transfer to the O'Neill Centre, or approximately till the end of May 1997. I have no evidence that Ms. Sagebiel's suggestion for finding out about Portuguese-language social programs was followed up, or that Mrs. Da Rosa was assessed for participation in such a group. Allstate eventually increased the attendant care it provided to Mrs. Da Rosa, but not until the fall of 1999, after another occupational therapy assessment, while this arbitration was underway. I find arranging an occupational therapy assessment once every two years does not reflect a reasonable level of evaluation and monitoring of required supplementary medical and rehabilitation service for an impairment as severe as Mrs. Da Rosa’s.

Mrs. Da Rosa’s needs on a daily basis are not much different now than they were in the fall of 1997 or the fall of 1999, except that as time advances Mrs. Da Rosa is more at risk of losing any gains she has made. Therefore, to avoid repetition, I will deal with the care she required during that time frame in the following section. In dealing with Mrs. Da Rosa’s rehabilitation needs, paying heed to Dr. Gutman’s opinion that Mrs. Da Rosa needs to maintain the gains she has made, is a primary consideration.

What are the reasonable expenses Mrs. Da Rosa requires for her care?

Presently, Mrs. Da Rosa enjoys the services and company of a health care aid, Mrs. Lillian Carrera, five days per week (Monday to Friday), for eight hours (11:00 a.m. to 7:00 p.m.). Mrs. Carrera speaks Portuguese and she and Mrs. Da Rosa gets along well together. Mrs. Carrera has been assisting Mrs. Da Rosa for 40 hours per week since the fall of 1999, after Ms. Lalani's assessment. Before that, Mrs. Carrera assisted Mrs. Da Rosa three days per week. Mrs. Da Rosa attends an art therapy class twice each week at the O'Neill Centre, but she generally declines invitations to participate in other programs or outings offered by the O'Neill Centre. Mrs. Carrera testified that she encourages Mrs. Da Rosa to take a walk each afternoon around the neighbourhood and is usually successful. Mrs. Da Rosa walks slowly, with a single cane, and takes the arm of her caregiver, as she is somewhat unsteady on her feet.

Mrs. Da Rosa does not participate in any activities in the community outside the O'Neill Centre. Mr. Silveira testified that he occasionally brings Mrs. Da Rosa to his home for a meal—the last time before the hearing was two months earlier. He testified that presently he visits his sister about once a week and talks with her for about 10 to 15 minutes.

As part of the program at the O'Neill Centre, a part-time physiotherapist attends to the needs of more than 100 residents. In the past Mrs. Da Rosa has been treated by the physiotherapist with hot packs, about twice each week. Mrs. Carrera testified that she felt Mrs. Da Rosa benefited from this treatment and Mrs. Da Rosa had told her that it made her shoulder feel better. Recently, a new physiotherapist was hired by the O'Neill Centre. Mrs. Carrera testified that in the week following the hearing the new physiotherapist planned to demonstrate some shoulder exercises to Mrs. Da Rosa that Mrs. Carrera could help her learn and perform.

Mrs. Da Rosa shares a room with three other women on a secure floor at the O'Neill Centre and takes her meals in the home's dining room. The health care aids on the floor assist her to the dining room for breakfast and for all meals on weekends. Mrs. Carrera assists her with lunch and supper, five days per week. Mrs. Da Rosa is able to feed herself, but she requires assistance with such tasks as opening packets, spreading jam on toast, and cutting meats.

Mrs. Da Rosa’s attendant care was increased from three days per week to five days per week as a result of an occupational therapist's recommendations in the summer of 1999. Ms. Tazmeen Lalani of Rehability Occupational Therapy Inc. was retained by Allstate to conduct an occupational therapy assessment of Mrs. Da Rosa. As a result, Allstate arranged for Mrs. Carrera to work with Mrs. Da Rosa an extra two days per week. Ms. Lalani testified at the hearing and her report was filed. Ms. Lalani was particularly interested in improving Mrs. Da Rosa’s communication with others, since none of the health care staff at the O'Neill Centre are Portuguese speaking.

Three other occupational therapists testified at the hearing and their reports were filed. One occupational therapist, Sue Wilkinson, who testified on behalf of Mrs. Da Rosa, was the author of a long-term functional needs and costs analysis dated December 8, 1998. Up-dates of the figures in this report were also filed. One option in Ms. Wilkinson’s report dealt with costs as if Mrs. Da Rosa continued to reside in a long-term care facility. The other option looked at care in the community—specifically, in Mr. Silveira's home. The second option was withdrawn after the arbitration hearing by correspondence from the Applicant's lawyer, dated November 28, 2000.

From the correspondence between Allstate and Mrs. Da Rosa's solicitors filed in this proceeding, it is apparent that Allstate recognizes it will have a lifetime relationship with Mrs. Da Rosa. However, I have no evidence that Allstate set up any automatic mechanism to ensure periodic re-examinations of Mrs. Da Rosa’s situation to modify it as needed. The last occupational therapy assessment of Mrs. Da Rosa initiated by Allstate prior to the summer of 1999 took place in late August 1997. This was Margarete Sagebiel's assessment. After some further follow-up by Ms. Sagebiel or her firm with respect to long-term care residences in Toronto with Portuguese-speaking residents and staff, Allstate requested a meeting with Mrs. Da Rosa’s brother and lawyer to discuss her attendant care needs and moving Mrs. Da Rosa to another nursing home.

Case Manager

I find Mrs. Da Rosa’s rehabilitation has stagnated since her discharge from Riverdale Hospital. No one is directing it. Mr. Silveira, Mrs. Da Rosa's brother, who is the guardian of her property, and who is treated as her next of kin, is not "directing" her rehabilitation or advocating on his sister's behalf—Mr. Silveira testified that apart from the attendant care, he was not aware of the medical care his sister was receiving now. He could only recall an art course one day per week. Mr. Silveira works long hours each week and has other family responsibilities. He is not well educated, nor does he speak English well enough to feel comfortable testifying without an interpreter. Although he testified that he visited his sister much more often in the time closer to her accident, he does not spend much time with her nowadays.

One of the benefits Mrs. Da Rosa requests is to be provided with the services of a case manager, pursuant to subsection 40(5)(c) of the Schedule. Robin Button of Rehabilitation Services of Canada was Mrs. Da Rosa's case manager, from April 1995 to July 1997. Allstate, itself, hired Ms. Button, so at that point in the claim Allstate clearly understood the value of a case manager's services. Apart from her direct services to Mrs. Da Rosa, Mr. Silveira testified that Ms. Button was helpful to him, for example, in securing a wheelchair parking permit. She also suggested five nursing homes to visit when Mrs. Da Rosa was ready to leave Riverdale Hospital. Mr. Silveira also testified that later decisions such as cutting back attendant care and then reinstating attendant care were made without him being informed or consulted.

According to her closing report, Ms. Button’s services were terminated in July 1997 at Allstate’s request. By then Mrs. Da Rosa was settled at the O'Neill Centre and Ms. Button had obtained the pre-accident medical records relating to Mrs. Da Rosa that Allstate had requested.

Dr. Carol Deitcher, Mrs. Da Rosa’s family doctor since her admission to the O'Neill Centre, has a clear understanding of Mrs. Da Rosa's current medical situation. Dr. Deitcher has varied the dosages of Mrs. Da Rosa's medications over time according to her behaviour and complaints. However, Dr. Deitcher admitted that she has very little experience in the management of patients with acquired brain injury. In her testimony, Dr. Deitcher admitted that she has been aware of the activities of Mrs. Da Rosa's health care aid, but, until this time, has not directed her activities. Dr. Deitcher indicated that this was not to say that she could not or should not direct Mrs. Carrera’s interaction with Mrs. Da Rosa.

However, Dr. Deitcher cares for 40 patients on Mrs. Da Rosa’s floor and is at the O'Neill Centre only a half day each week. In my view, it is not within her expertise nor her reasonable responsibility to coordinate all the possible aspects of Mrs. Da Rosa's ongoing treatment and rehabilitation. That is what a case manager is trained and paid to do. It is what Ms. Button did in the past for Mrs. Da Rosa. I find that Mrs. Da Rosa needs a case manager with experience in the long-term care needs of persons with acquired brain injury. The case manager will evaluate the effectiveness of the rehabilitation programs put into place and facilitate improved communication between Mrs. Da Rosa, her family and the Insurer. The case manager will also facilitate communication between the staff of the O'Neill Centre, Mrs. Da Rosa's attendant and other involved parties.

Physiotherapy and Occupational Therapy Assessments

It is obvious that Mrs. Da Rosa’s situation will change over time, as she grows older. It is also apparent that activities that interest her now may not continue to interest her as months and years pass. Mrs. Da Rosa’s physical therapy status and functional status should be assessed at regular intervals by competent physiotherapy and occupational therapy professionals who are not associated with the O'Neill Centre. Dr. Gutman testified that it would be important to ensure that Mrs. Da Rosa has maintained the skills she learned early in her rehabilitation. He felt this could be best accomplished through the supervision by an occupational therapist and physiotherapist of a well-motivated, qualified attendant. An independent physiotherapist may have different ideas about the treatment Mrs. Da Rosa should receive under her direction and supervision than the physiotherapist for the O'Neill Centre, who occupies a part-time position and has potentially well over 100 patients.

An independent, assessing physiotherapist can spend the time to devise a comprehensive, individualized program of home exercises that Mrs. Carrera and Mrs. Da Rosa can perform. Ms. Wilkinson recommended four assessments in the next six years for a total cost of about $455.68. I find this is a reasonable expenditure to assess Mrs. Da Rosa's physical abilities and develop a varied program of physical activity to maintain her physical ability over time. Ms. Wilkinson recommended ten hours of physiotherapy in the first year, with four hours per year in the next six years. I find this is reasonable, considering the on-site physiotherapist intervention and supervision that will continue to be available. This assessment and treatment will help reduce the effects of Mrs. Da Rosa’s disability resulting from the impairments she sustained in the accident, as provided in subparagraph 40(1)(a) of the Schedule. I find that such a program should have been put into place within six months of Mrs. Da Rosa's arrival at the O'Neill Centre, that is by the end of August 1997.

Ms. Wilkinson recommended an occupational therapy assessment to identify Mrs. Da Rosa’s present functional abilities and to design a program to maintain those abilities over time. She felt an initial assessment and a second one in two years would be required. She recommended that the occupational therapist supervise and direct the community support worker and the attendant to maintain Mrs. Da Rosa’s functional abilities over time. Ms. Wilkinson also recommended an avocational occupational therapy assessment to identify productive activity and structure for Mrs. Da Rosa to pursue avocational activities. Ms. Susannah Gray testified about Mrs. Da Rosa's accomplishments during the time she was assisting her and a report was filed. Mrs. Carrera testified that, at present, Mrs. Da Rosa has a great fear of motor vehicles and travel by vehicle. I find that advances Mrs. Da Rosa made while under treatment with Ms. Gray have been lost. In the summer of 1996, when she was working with Ms. Gray, Mrs. Da Rosa was learning to use the subway and TTC.

I find the two occupational therapy assessments should be combined into a comprehensive functional and avocational occupational therapy assessment, performed by the same occupational therapist at a cost of less than $1,660. The costs for supervision by the occupational therapist over 12 to 18 months should approximate $600. Thereafter, the case manager should be able to fulfil a supervisory role. These services should facilitate Mrs. Da Rosa’s reintegration into society and assist her to adjust to social situations as well as maintain her level of function, as provided in subsection 40(4) of the Schedule. I find that an occupational therapy assessment should have been carried out within four months of Mrs. Da Rosa's arrival at the O'Neill Centre, that is by the end of June 1997.

Community Support Worker, Nurse, Companion

Mrs. Da Rosa’s claim included recommendations from Ms. Wilkinson in her December 1998 report for three other caregivers—a community support worker, a registered practical nurse, and a companion. Ms. Wilkinson recommended that the community support worker be engaged four hours per day, seven days per week at a cost of approximately $48 per hour. The community support worker would provide Mrs. Da Rosa with support for community activities and activities in her home. She recommended the registered practical nurse for eight hours per day, three days per week at a cost of approximately $22 per hour. The registered practical nurse would provide support in the management of health and personal care issues. Finally, Ms. Wilkinson recommended a companion for approximately ten to twelve hours per day, at an approximate cost of $14 per hour. The companion would provide supervision and safety for Mrs. Da Rosa in the O'Neill Centre. The approximate annual cost for each of these caregivers, requested from January 1999, and ongoing is:

Support worker:

$70,000

Companion:

$56,000

Registered Practical nurse:

$27,000

Ms. Wilkinson also included the nursing home accommodation fees of approximately $15,000 per year as a support service to provide Mrs. Da Rosa with "supervised accommodation." There is no dispute between the parties about Mrs. Da Rosa’s need for 24 hour supervision or a health care aid for 40 hours per week. Allstate continues to pay for Mrs. Carrera’s services, so that claim is not included here.

I will also consider the claim for this type of service in the period from Mrs. Da Rosa's transfer to the O'Neill Centre in late February 1997 to the end of December 1998.

At the hearing no evidence established that Mrs. Da Rosa requires the adjunctive services of a registered practical nurse. No evidence distinguished the care that would be provided by a registered practical nurse that is not or could not be performed by a health care aid like Mrs. Carrera, although Ms. Wilkinson alluded to this briefly in her testimony. It was not clear from her report that Ms. Wilkinson understood that Mrs. Carrera’s predecessor was a health care aid and not a "practical nurse," although this may be a difference in Ms. Wilkinson’s semantics. The registered nursing staff of the O'Neill Centre is responsible for Mrs. Da Rosa's medication. Mrs. Carrera assists Mrs. Da Rosa with her bathing, skin care and oral hygiene and any exercise she attempts. Margarete Sagebiel's 1997 report mentioned a lack of foot care for Mrs. Da Rosa, specifically toe nail trimming, which was reported as being outside the scope of care to be provided by a health care aid. This issue appears to have been resolved since it was not raised thereafter.

Mrs. Fearon, the head nurse on Mrs. Da Rosa’s floor at the O'Neill Centre, testified that when Mrs. Da Rosa is not engaged in activities sponsored by the O'Neill Centre, she will sit by her bed and play cards. She does not interact much with the other residents of the O'Neill Centre. Mrs. Da Rosa will not attend activities without her health care aid, Mrs. Carrera. I find Mrs. Da Rosa’s quality of life would improve if she had some activity provided by a Portuguese-speaking community support worker trained in working with the brain injured during times when her health care aid is not present—currently that means on weekends.

Presently, Mrs. Da Rosa spends two days out of seven or 29 percent of her normal week without any Portuguese-speaking companionship or activity outside the O'Neill Centre, unless Mr. Silveira visits. Ms. Wilkinson recommended that the community support worker be hired for four hours daily. I find supplementing Mrs. Da Rosa’s present health care aid five days per week, with a Portuguese-speaking community support worker four hours daily, two days per week would be a reasonable measure to help Mrs. Da Rosa return as much as possible to a social situation like the one she lived in before the accident. This rehabilitation will also help her maintain her level of function, while she is still residing in an institution like the O'Neill Centre.

When Mrs. Da Rosa’s family wish her to participate in family gatherings on weekends, this can be coordinated with the community support worker. Mrs. Da Rosa lived in Bradford for more than twenty years prior to her accident. Since her accident, however, she has resided in Toronto. Mrs. Da Rosa’s community support worker will assist Mrs. Da Rosa to develop links with organizations and individuals in the Portuguese community in Toronto to promote her reintegration into society. The community support worker will also work with Mrs. Da Rosa to help her overcome her fear of travelling in motor vehicles or on public transportation.

I find it reasonable for Mrs. Da Rosa to have adjunctive support and to be able to communicate with her caregivers and converse in Portuguese, seven days a week. Ms. Lalani and Dr. Deitcher were concerned about Mrs. Da Rosa's ability to communicate in their reports, and Ms. Lalani emphasized this in her testimony. She felt it was even more important than an increase in structured activity for Mrs. Da Rosa. When Ms. Lalani assessed Mrs. Da Rosa’s needs, she was under the impression that Mrs. Da Rosa’s family visited her every weekend and were involved in activities like bathing her. Mr. Silveira testified that when he visits on the weekend nowadays, he stays with his sister for about 15 minutes. He is no longer involved in bathing activities. It was not my sense of Ms. Lalani's evidence that she was informed of the meagre amount of interaction with Portuguese speakers Mrs. Da Rosa enjoys presently on weekends. A reasonable increase in Mrs. Da Rosa's support will serve to reduce the isolation and loneliness that Dr. Deitcher referred to in her report.

Although Ms. Wilkinson completed a Form 1 for Attendant care, she was not questioned in detail about it, and counsel made no submissions about the form and its role in this arbitration. Both Dr. Deitcher and Mrs. Fearon, the head nurse on Mrs. Da Rosa's floor at the O'Neill Centre, thought the level of attendant care was sufficient. I find the provision of 40 hours per week of adjunctive attendant care does not adequately address the social rehabilitation issues of Mrs. Da Rosa’s entitlement to benefits under the Schedule. Although Mrs. Carrera is able to provide some rehabilitation support in her cueing of Mrs. Da Rosa with respect to the days of the week, and in short excursions into the neighbourhood on their afternoon walk, she does not have the training or the mandate to engage in more onerous rehabilitative measures, such as a community support worker will provide.

Mrs. Carrera has been providing 40 hours per week of care to Mrs. Da Rosa only since the fall of 1999, sometime after Ms. Lalani's report and her subsequent telephone conference with Mr. Caulfield, Allstate's representative at that time. In my view, the observations of Ms. Sagebiel in 1997 and Ms. Lalani's report two years later indicate problems with supplying only 24 hours per week of attendant care and no additional rehabilitation services to Mrs. Da Rosa. In the move from Riverdale Hospital to the staffing pattern at the O'Neill Centre, Allstate should have paid closer attention to Mrs. Da Rosa's long-term rehabilitation and attendant care needs and addressed these in a comprehensive manner. I find it reasonable for Allstate to pay Mrs. Da Rosa benefits for a health care aid for an additional two days per week from June 1, 1997 at eight hours per day, until Mrs. Carrera began working five days per week in the fall of 1999. I also find it reasonable for Allstate to pay rehabilitation benefits for a community support worker from June 1, 1997 to December 31, 1998 at $47.83/hour for 8 hours per week

Cost of Report of Rehab Management Inc.

The pre-hearing report frames this issue in the following manner: "Is Mrs. Da Rosa entitled to rehabilitation benefits for a report of Rehabilitation Management Inc. dated December 8, 1998, in the amount of $2,237.18 pursuant to section 40 of the Schedule!" When the invoice was initially submitted to Allstate for payment, the expense was claimed under section 57 of the Schedule as a needs and costs analysis. Ms. Nelson submitted that this report should qualify under section 57 of the Schedule, which is entitled "Cost of Examinations." She referred to an arbitration decision in the Tsmidis case,³ in which Arbitrator Joachim considered a comparable section in the current scheme of statutory accident benefits. Allstate submitted that it was uncontroverted that this was a legal referral, not designed to provide actual occupational therapy to Mrs. Da Rosa. Allstate submitted this was an arbitration expense, not a supplementary medical benefit.

Although I am concerned with the fact that some minor parts of Ms. Wilkinson's report dealt with items not actually in dispute (e.g. medication expenses), she provided a comprehensive report of Mrs. Da Rosa’s long-term functional needs and costs for which Allstate would be responsible under the Schedule. Through her firm’s costing research and databases, Ms. Wilkinson was able to produce actual average costs, not just estimates, for many services. Since the claim to house Mrs. Da Rosa in her brother’s home was withdrawn after the hearing, about half of Ms. Wilkinson's report became unnecessary. However, at the time the report was prepared, Mr. Silveira was actively interested in the option of bringing Mrs. Da Rosa to his home to live. I find that Allstate should pay the costs of the December 8, 1998 report as a reasonable expenses incurred on behalf of Mrs. Da Rosa for a report for the purpose of the Schedule, according to the provisions of section 57.

Funds Manager

The Applicant submitted that the issue of Mrs. Da Rosa's entitlement to a funds manager should be part of this arbitration. The Insurer disagreed that this issue was to be dealt with here. Although a funds manager was recommended in Ms. Wilkinson’s report, it does not form part of the request submitted on Mrs. Da Rosa's behalf to Allstate in a letter dated January 11, 1999. It also appears in the Reports of Mediator dated January 7 and May 4, 1999 that this issue was not mediated. It was not included in the pre-hearing discussion or pre-hearing arbitrator's list of issues in dispute. The Applicant submitted that it had been overlooked, but not dropped. The parties could point to no correspondence to the pre-hearing arbitrator suggesting any issue in dispute was omitted from the pre-hearing report or requesting that it be rectified.

From the submissions of counsel, I conclude that this potential issue in dispute was overlooked by all parties to the mediations and pre-hearing discussions. I find it is not an issue to be decided in this arbitration.

When and if Mrs. Da Rosa has significant sums of money accumulated, it will be open to her to apply to the Insurer pursuant to subsection 40(5)(a) of the Schedule for "financial counselling."

Prior Approval of Expenses, s. 69

Before a person incurs expenses referred to in Part 7, 8, 10 or 13 of the Schedule, according to the provisions of section 69, a person may request the insurer to confirm in advance that it will pay for the expense, or authorize that the expense be billed directly to the insurer. The insurer may refuse the request "only if there are reasonable grounds to believe that the expense is one for which the insurer would not be required to pay." The insurer has 14 or 30 days to respond to the request, as long as the information reasonably required to determine whether the expenses is one for which the insurer would be required to pay is provided. If the insurer refuses the request, it must give reasons to the person who made the request.

Neither party made submissions with respect to this aspect of Mrs. Da Rosa's claims although five of the original issues in dispute contained a request for prior approval. The Applicant formally applied for these expenses and requested their prior approval by way of a lawyer's letter dated January 12, 1999. Allstate’s reasons for refusal were set out in a letter attached to an Explanation of Assessment by Insurance Company (OCF 9) dated January 21, 1999 signed by Trent Caulfield, B.A., A.R.P., Rehabilitation Service Advisor. Mr. Caulfield indicated that none of the prospective expenses appeared to be reasonable or necessary, based on the facts of this case.

Mrs. Da Rosa’s solicitor correctly pointed out to Allstate in his letter that the Schedule provides that rehabilitation benefits falling within the ambit of subsection 40(5) of the Schedule are to be paid pending the resolution of a dispute relating to the expense. Allstate did not pay any of the new claims requested in the application. It continued to pay Mrs. Da Rosa’s medication and for her attendant care. It conducted its own occupational therapy assessment over the summer of 1999 and adjusted Mrs. Da Rosa's attendant care upward in the fall of 1999 to 40 hours per week from 24 hours per week.

Although the question of prior approval was listed within the issues in dispute in the pre-hearing report, the parties did not address this question in their opening statements, evidence or submissions. Accordingly, I am not further addressing it in these reasons.

Classification of Claims: Attendant Care or Med/Rehab?

Although this question was listed within the issues in dispute in the pre-hearing report, the parties did not address this potentially complex question in their opening statements, evidence or submissions. Accordingly, I am not addressing it in these reasons. In the event that this point remains of concern to either party, then they should apply to the case administrator, within 30 days, to reopen the hearing for submissions on this issue.

Special Award

According to the provisions of subsection 282(10) of the Insurance Act, an insurer is liable to pay a special award if it has unreasonably delayed or withheld payments. Ms. Nelson submitted that Allstate's withholding of co-payments and its representations until January 1999, were unreasonable and not in accordance with the law. This forced Mrs. Da Rosa to use her own funds to make the payments Allstate should have made.

Mr. Kirby submitted that there was no doubt Mrs. Da Rosa was entitled to a reduction, the only question being the amount of the co-payment. He submitted this was an anticipatory claim, that until it can be shown there is a part Mrs. Da Rosa is responsible for, I could not find Allstate responsible for anything. As a matter of law, it is the responsibility of Mrs. Da Rosa's guardian, either the Public Trustee or her brother, to apply for the reduction.

Mrs. Da Rosa's previous lawyers had requested payment of the Riverdale Hospital expenses as early as January 1997. A letter sent to Allstate by her lawyers before Mrs. Da Rosa left Riverdale Hospital⁴ refers to the monthly cost at Riverdale Hospital of $1,225.62 and asks: "Please advise if this cost will be covered by Allstate."

Allstate's response on February 17, 1997 refers to Mrs. Da Rosa's caregiver benefits and CPP pension as being "collateral sources" that would be "more than enough to pay for the cost of her accommodations at O'Neill or Riverdale." The letter goes on to advise that "Allstate will not cover the cost of accommodation when there is a source of collateral already in place to cover this expense. I would also question whether Mrs. Da Rosa might still qualify for the co-payment with the Ministry, excluding the Care Giver Benefits received from us and using her CPP and any taxable income as the basis for qualifying for a subsidy."

On September 22, 1998 Allstate denied $40,816.20 claimed under attendant care benefits.

Allstate was totally wrong in the manner in which it dealt with the chronic care co-payments and long-term care accommodation fees. It should have acknowledged its responsibility in this area, according to the Schedule’s provisions. Its actions in not doing so were unreasonable. Despite numerous solicitations by two sets of lawyers for Mrs. Da Rosa, it continued to maintain its denial of these hospital and long-term care payments. It remained inflexible and unyielding over five years or more, although its position varied somewhat in early 1999.

Fortunately, Mrs. Da Rosa’s care did not suffer over this time, because she had the funds to pay the accommodation fees. In coming to a decision about the appropriateness of a special award and the amount that should be paid, I have taken into account the fact that Allstate has continued to recognize its responsibilities to Mrs. Da Rosa in other areas like attendant care. I have also taken into account the fact that after January 1999, Allstate’s position on this issue changed somewhat and that Mrs. Da Rosa’s own representatives failed for years to apply for reductions in the amount of the co-payment or accommodation fee, no matter who was to be held legally responsible in the end. I find that Allstate should pay a special award of $10,000, inclusive of interest.

EXPENSES:

Allstate is not asking its expenses of the arbitration be paid by Mrs. Da Rosa, although its position continues to be that the application for arbitration ought never to have been brought. Allstate submitted that much of the original claim by Mrs. Da Rosa was abandoned or virtually abandoned. With respect to the co-payment issue, Mr. Kirby submitted that her lawyers should have applied to the O'Neill Centre and Riverdale Hospital for exemption in early 1999. Allstate submitted that it would be inappropriate to punish it by levying against it the expenses of the arbitration.

Mrs. Da Rosa has been successful in this hearing on the co-payment issue. She has also been successful in increasing the amount of rehabilitation benefits that will be paid by Allstate. On the other hand, her claim for relocation to her brother’s home and for a minivan was not formally withdrawn until two and a half months after the hearing, although the relocation claim was virtually abandoned by the time of the hearing and Mr. Silveira, himself, testified at the hearing that he did not need a minivan to pick up his sister. The oral evidence on the withdrawn issues was, however, limited. Both parties to the arbitration cooperated to facilitate the proceeding; time was not wasted, and the time scheduled for the hearing was reduced to under four and a half days. In the circumstances of this proceeding, including the above points, and including consideration that I have ordered Allstate to pay a special award of a significant amount, I order Allstate to pay two-thirds of Mrs. Da Rosa's expenses of the arbitration.

December 20, 2000

K. Julaine Palmer Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 226

FSCO A99-000110

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ZITA DA ROSA

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. (a) Allstate Insurance Company of Canada shall pay Zita Da Rosa $13,063.99 in supplementary medical expenses for chronic care co-payments and $39,303.66 in attendant care benefits for long-term care accommodation fees pursuant to paragraphs 36(1)(a) and 47(1)(b), respectively, of the Schedule. Allstate Insurance Company of Canada shall pay Zita Da Rosa interest on these overdue amounts from the dates the amounts became overdue, at the rate of 2 percent per month, compounded monthly, as provided in section 68 of the Schedule, that is beginning incrementally from March 1996 for the former and beginning from March 1997 for the latter amount.

(b) Allstate Insurance Company of Canada shall pay Zita Da Rosa $890.89 per month from December 1, 2000, ongoing, to cover the basic accommodation charges of the O'Neill Centre. Allstate Insurance Company of Canada shall continue to pay the net accommodation charges, ongoing, as determined from time to time by the O'Neill Centre, reflecting any reduction in accommodation fees permitted to Mrs. Da Rosa.

2. Allstate Insurance Company of Canada shall pay Zita Da Rosa supplementary medical benefits for the following services, in the following amounts, pursuant to section 36 of the Schedule: 2 Physiotherapy Assessments @ $116.67 = $233.34; Physiotherapy Treatment and supervision of intervention by attendant: $878.60 + 4 additional hours @ $87.86 = $351.44. Total $1,230.04; Occupational Therapy and Vocational Assessment: $1,660; Occupational Therapy Treatment: $600.

3. Allstate Insurance Company of Canada shall pay Zita Da Rosa rehabilitation benefits for the following services, from January 1999, and ongoing: community support worker: $47.83/hour x 8 hours per week.

4. Allstate Insurance Company of Canada shall pay Zita Da Rosa benefits for a health care aid for an additional two days per week from June 1, 1997 at eight hours per day, until Mrs. Carrera began working five days per week (in the fall of 1999). Allstate Insurance Company of Canada shall pay Zita Da Rosa rehabilitation benefits for a community support worker from June 1, 1997 to December 31, 1998 at $47.83/hour x 8 hours per week.

5. Allstate Insurance Company of Canada shall pay Zita Da Rosa for the services of a case manager of her choice, from the date of this order, ongoing, pursuant to section 40(5) (c) of the Schedule.

6. Allstate Insurance Company of Canada shall pay Zita Da Rosa $2,237.18 for a report of Rehabilitation Management Inc. dated December 8, 1998, pursuant to section 57 of the Schedule plus interest, at 2 percent per month, compounded monthly, according to the provisions of section 68 of the Schedule.

7. Allstate Insurance Company of Canada shall pay Zita Da Rosa a special award pursuant to subsection 282(10) of the Insurance Act, of $10,000, inclusive of interest, because it unreasonably withheld chronic care co-payments and long-term care accommodation fees from Mrs. Da Rosa.

8. Allstate Insurance Company of Canada shall pay Zita Da Rosa interest on all amounts owing, except the special award, at 2 percent per month, compounded monthly, according to the provisions of section 68 of the Schedule.

9. Allstate Insurance Company of Canada shall pay Zita Da Rosa two-thirds of her expenses in respect of the arbitration under section 282(11) of the Insurance Act, .

December 20, 2000

K. Julaine Palmer Arbitrator

Date

Footnotes

1. 1The 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.
2. 2In 1998-99 the Ministry of Health did not announce its 1999-2000 rates in a timely fashion, such that July 1999 was billed at the 1998-99 rate. Accordingly, 13 months should be paid at $862.01. In 1999-2000, then 11 months should be paid at $870.95.
3. 3Tsmidis and Liberty Mutual Insurance Company, (FSCO A98-000388, January 6, 1999) (FSCO P99-00013, August 28, 1999).
4. 4The letter is undated but was date-stamped as received by Allstate on January 28, 1997.