Neutral Citation: 2001 ONFSCDRS 109
FSCO A98–000801
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SANDRA ALVAREZ
Applicant
and
LIBERTY MUTUAL INSURANCE COMPANY
Insurer
DECISION ON PRELIMINARY ISSUES
Before:
Judith Killoran
Heard:
April 5, 2001 in Hamilton, Ontario
Appearances:
Reno M. Berlingieri for Ms. Alvarez
George Gage for Liberty Mutual Insurance Company
Issues:
The Applicant, Sandra Alvarez, was injured in a motor vehicle accident on June 27, 1995. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.1 However, the parties disagreed about the benefits to which Ms. Alvarez was entitled. The parties were unable to resolve their disputes through mediation, and Ms. Alvarez applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The preliminary issues are:
Is Ms. Alvarez entitled to access funding for qualified skilled supervisory care, under category level I attendant care, as described in part 1 of Form 1, or level III attendant care, as described in part 3 of Form 1?
Are the categories or classifications for attendant care set out in Form 1 exhaustive for the purposes of completing an attendant care assessment pursuant to section 50 of the Schedule?
For the purposes of an attendant care assessment pursuant to section 50, are the hourly rates for services set out in subsection 10 of section 50 to be used as the fixed rates for the calculation of attendant care costs under part 4 of Form 1, or do the rates set out in subsection 10 of section 50 represent minimum rates which the assessor may increase subject to the maximum total amount provided for in subsections 4, 5, 6 and 7 of section 47?
Does Ms. Alvarez qualify for payment of education disability benefits, pursuant to section 15 of the Schedule and, coincidental with that issue, should Ms. Alvarez' pre-accident earning capacity be calculated in accordance with subsection 29(5) of the Schedule?
Result:
Ms. Alvarez is not entitled to access funding for qualified skilled supervisory care, under category level I attendant care, as described in part 1 of Form 1, or level III attendant care, as described in part 3 of Form 1.
The categories or classifications for attendant care set out in Form 1 are exhaustive for the purposes of completing an attendant care assessment pursuant to section 50 of the Schedule.
For the purposes of an attendant care assessment pursuant to section 50, the hourly rates for services set out in subsection 10 of section 50 are to be used as the fixed rates for the calculation of attendant care costs under part 4 of Form 1.
Ms. Alvarez may qualify for payment of education disability benefits, pursuant to section 15 of the Schedule, and if so, her pre-accident earning capacity should be calculated in accordance with subsection 29(5) of the Schedule.
EVIDENCE AND ANALYSIS:
For the purpose of rulings with respect to the first three preliminary issues, the parties have requested that I assume the following as facts:
The insured claimant, Sandra Alvarez, was born on October 1, 1975. On June 27, 1995, Ms. Alvarez was a pedestrian when she was struck by an automobile. As a result of the motor vehicle accident, Ms. Alvarez sustained multiple fractures, a severe brain injury and significant psychological impairment.
On January 8, 1999 Ms. Alvarez' attendant care needs were assessed by the Hamilton Hospital Designated Assessment Centre (DAC), which initially submitted a Form 1 assessment dated January 22, 1999, in which part 4 was not completed. A completed Form 1 was submitted on April 17, 1999, which assessed the monthly attendant care benefit as follows:
Level I care
$ 536.94
Level II care
4,020.61
Level III care
970.63
Total
$5,528.18
In her report dated March 22, 2001, Ms. Alvarez' treating psychologist recommended that she be provided with the 24-hour presence of skilled supervisory attendant care professionals with training in management of aggressive behaviours.
Since October 20, 2000, Ms. Alvarez has been a residential patient at the Hill Program. She can establish entitlement to attendant care benefits under subsection 47(7) which provides for a maximum monthly available amount of $10,000 plus indexation. The need for skilled supervisory attendant care arises as a result of the "unpredictable nature of her aggressive outbursts and tendencies for self-injurious behaviours."
The parties agreed that if this matter proceeds to a hearing, the parties shall be allowed to provide evidence corroborating and disputing the factual assumptions relating to the four preliminary issues, if necessary.
2. Is Ms. Alvarez entitled to access funding for qualified skilled supervisory care, under category level I attendant care, as described in part 1 of Form 1, or level III attendant care, as described in part 3 of Form 1?
There is no dispute that Ms. Alvarez has significant disabilities and is disabled for life. The relevant subsections in issue are found in section 47 of the Schedule, and are the following:
(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,
services provided by an aide or attendant; or
services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.
(4) Subject to subsections (5) to (7), the maximum amount payable under this section in respect of an insured person is $3,000 per month.
(5) If, as a result of the accident, the insured person suffers cervical spinal cord injuries, severe brain injuries or an uppers 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.
(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.
(7) If, as a result of the accident, the insured person suffers severe brain injuries that cause violent behaviour that may result in physical harm to the insured person or other persons, the maximum amount payable under this section in respect of the insured person is $10,000 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).
Subsection 50(9)(b) requires that the DAC attendant care assessment report include "a determination of the amount to be paid by the insurer for the future provision of services referred to in section 47 to the insured person."
Subsection 50(10) reads:
Thedetermination under clause (9)(b) shall be made in accordance with Form 1 and shall be based on the following hourly rates for services:
For care described in Part 1 of Form 1, $8.97 per hour.
For care described in Part II of Form 1, the minimum hourly wage established by paragraph 4 of subsection 10(1) of Regulation 325 of the Revised Regulations of Ontario, 1990.
For care described in Part III of Form 1, $14.35 per hour.
The hourly rates for Levels I and III care are subject to section 80 of the Schedule which requires that they be adjusted yearly by the indexation percentage published under section 268.1 of the Insurance Act. The hourly rate for Level II care is limited to the amount of the minimum hourly wage, which is presently $6.85 per hour.
As set out in Dr. Alyman's report of March 22, 2001,2 Ms. Alvarez is subject to unpredictable emotional outbursts which could cause harm to herself or to others such that she requires 24-hour supervisory attendant care with attendants who have experience caring for patients with an acquired brain injury. Dr. Alyman indicates that unskilled supervisory care is unable to deal with unpredictable emotional outbursts and poses a serious threat to Sandra and to other members of the public.
It is agreed that Ms. Alvarez qualifies for attendant care benefits under subsections 47(5) and 47(7) and is entitled to the maximum of $10,000 plus indexation per month. However, subsection 47(9) specifies that the benefits payable to an insured person under this section shall be determined in accordance with Form 1 and subsection 50(10).
The problem is that the Form I specifies and defines three levels of attendant care. Level I attendant care is for routine personal care relating to dressing, undressing, prosthetics, orthotics, grooming, feeding, mobility and extra laundering.
Level II attendant care is for basic supervisory functions relating to hygiene, ventilators, spinal cord injuries, severe brain injuries, attendant care on an intermittent basis, multiple amputations, and financial affairs.
Level III attendant care is for complex health/care and hygiene functions including genitourinary tracts, bowel, tracheotomy, ventilator and skin care, exercise, medication, bathing, other therapy and maintenance of supplies and equipment.
Most of Ms. Alvarez' care has been slotted into Level II attendant care. Level II care relates to basic supervisory functions and does not mention the highly skilled supervisory care which is required by Ms. Alvarez. However, there is a category in Level II for severe brain injuries which is defined as "client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour."
Although Liberty Mutual submits that Level III care is restricted to complex health care and hygiene functions, Ms. Alvarez submits that skilled supervisory care should have been a separate heading under Level III attendant care in Part 3 of Form 1 and was omitted through oversight or error.
In Monachino and Liberty Mutual and AXA Home Insurance3 the Court of Appeal dealt with whether parents of a son who was severely injured in a motor vehicle accident in 1991 could obtain payment for attendant care provided by them to their son. This was a difficult decision but the court found that it must apply the statutory language in the Schedule which specified that the expenses must be incurred for a professional caregiver. The court ruled: "It appears to me that the language of the no-fault schedule is clear and unambiguous .... To accept the appellant's interpretation would be to rewrite the statute as opposed to applying its clear language." This gap in the Schedule was remedied subsequently by amendments to the Insurance Act effective January 1, 1994.4
I acknowledge that there is a gap in the legislation and it appears to be a serious oversight that Level III care in Form 1 includes only complex physical/health care needs with no category for psychological needs. However, as with the court in Monachino, I am charged with interpreting the legislation and not with amending it.
It would be preferable for the safety of Ms. Alvarez and others if the 24-hour skilled supervisory care recommended by Dr. Aylman could be provided and compensated at the rates for Level III care. However, that is not possible due to the manner in which the legislation is drafted. There is no room for flexibility when filling out the Form 1.
I find that Ms. Alvarez does not qualify for access funding under either Level I or Level III for the qualified, skilled supervisory care which she requires. However, I considered carefully the question posed by Ms. Alvarez as to how the upper ceilings for attendant care of over $6,000 and $10,000 (after indexation) per month could be achieved under subsections 47(5) and (7) respectively.
Ms. Alvarez queried whether it would be possible to have more than one attendant providing care and in that fashion, "stack" benefits available under Level II. I find that Ms. Alvarez may require additional and separate care services due to the nature of her disability. It is possible to "stack" attendant care services under the legislation. For example, in Ms. Alvarez' case, under Level II of Form 1, it is possible that two attendants may be compensated simultaneously for her care, due to the nature of her disability.
2. Are the categories or classifications for attendant care set out in Form 1 exhaustive for the purposes of completing an attendant care assessment pursuant to section 50 of the Schedule?
Subsection 47(1) stipulates that if an insured person sustains an impairment as a result of an accident, the insurer shall pay for "all reasonable expenses" for services provided by an aide or attendant or services provided by a long-term care facility. However, the term "all reasonable expenses" is modified by subsection 47(9) which specifies that the benefits payable shall be determined in accordance with Form 1 and subsection 50(10). On the last page of the Form 1 in Part 4, there is a total assessed monthly attendant care benefit subject to limits under the Schedule.
In the case of Cole and Allstate Insurance Company,5 Arbitrator Blackman agreed that the Schedule is remedial legislation and must be given a broad and liberal interpretation.6 He also agreed that the modern rule of statutory interpretation is to determine the meaning of the legislation in its total context, having regard to the purpose of the legislation and the consequences of the proposed interpretation.7
Arbitrator Blackman found that the conflict between two sections of the Schedule dealing with rehabilitation benefits is resolved by the phrase that "the specific provision implicitly carves out an exception to the general one."8 Hence:
Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first.9
I find myself in a position similar to that of Arbitrator Blackman. That is, the restrictions of subsection 47(9) can no more be ignored than the maximum limits set by subsections 47(5) and (7). The conflict between the general provision under subsection 47(1) that the insurer pay "all reasonable expenses" and the specific provision in subsection 47(9) is resolved in favour of the more specific provision which prevails over the general.
I find that the categories or classifications for attendant care found in the Form I are exhaustive for the purpose of completing an attendant care assessment. This is evident from the method for completing the Form 1.The three levels of attendant care are considered in Parts 1, 2 and 3 of the Form 1 in which specific activities are listed. The time to perform each activity is estimated and is multiplied by the number of times each week that the activity should be performed to arrive at the total number of minutes per week for each activity. The totals for the particular levels of attendant care required are used as the basis for calculating the "total assessed monthly attendant care benefit." There are no general categories, such as a "miscellaneous" or "basket" category which would allow more latitude for expanding the assessment of care needs.
3. For the purposes of an attendant care assessment pursuant to section 50, are the hourly rates for services set out in subsection 10 of section 50 to be used as the fixed rates for the calculation of attendant care costs under part 4 of Form 1, or do the rates set out in subsection 10 of section 50 represent minimum rates which the assessor may increase subject to the maximum total amount provided for in subsections 4, 5, 6 and 7 of section 47?
Ms. Alvarez relied on the case of Tzatzkin and Liberty Mutual Insurance Company10 where the arbitrator allowed $10 an hour for Level l care, which was above the rate set by the Schedule. The arbitrator applied a standard of "reasonableness" when finding in favour of Ms. Tsatzkin's claim for the services of a case manager and attendant care for four hours daily, five days weekly at $10 per hour. However, it does not appear that there were any submissions relating to the hourly rate nor any reference to the rates contained in the Schedule, but rather, the dispute centred on whether the attendant care claimed was reasonable.
In Faerber-MacMillan and Allstate Insurance Company,11 the parties disagreed about the rate at which attendant care benefits should be paid. The dispute turned on whether Mr. Faerber-MacMillan's entitlement to attendant care benefits was subject to the maximum amount under subsection 47(5) or 47(6). The arbitrator ruled that Mr. Faerber-MacMillan was subject to the maximum set by subsection 47(5). It is clear from Arbitrator Leitch's reasoning in the decision that he considered himself bound by the hourly rates for the three levels of attendant care set out in subsection 50(10) of the Schedule.12
Ms. Alvarez submitted that the word "based" is the key word in subsection 50(10). According to Ms. Alvarez, "base" means a starting point.13 To the extent that "based" means a starting point in this section, it is with reference to the determination of the amount to be paid by the Insurer for the future provision of attendant care benefits, referred to in section 47. This determination represents an aggregate which reflects a multiple of the various hourly rates for services. In other words, the determination is "based" on the hourly rates for attendant care services multiplied by the number of attendant care hours which Ms. Alvarez requires at each level of attendant care specified in the Form 1.
For that reason, I disagree with Ms. Alvarez' submission that the maximums found in subsection 47(5) and (7) are meaningless unless the hourly rates are treated as minimum rates. It is accurate that if one were to multiply the rates set out in subsection 50(10) by the number of hours in a week, in the case of 24-hour care, the amount payable by the insurer would not be the maximum available under subsections 47(5) or (7). However, if one were to multiply the rates by the number and kinds of specialized care that could be offered by more than one attendant, as contemplated in the "stacking" scenario, it would be possible to attain the maximum amount payable.
4. Does Ms. Alvarez qualify for payment of education disability benefits, pursuant to section 15 of the Schedule and, coincidental with that issue, should Ms. Alvarez' pre-accident earning capacity be calculated in accordance with subsection 29(5) of the Schedule?
For the purposes of this ruling, I have been asked to assume as facts the following:
Sandra Alvarez was born on October 1, 1975. She sustained serious multiple injuries in a motor vehicle accident which occurred on June 27, 1995.
As a result of injuries sustained in the motor vehicle accident, Ms. Alvarez has a residual earning capacity of zero.
As of the date of the accident, Ms. Alvarez was employed by Sam and Son International Cheese as a full-time sales person. Her employment commenced on June 1, 1995 and continued to the date of the accident as confirmed by the Employer's Confirmation of Income dated August 29, 1995.
Ms. Alvarez' Ontario school record discloses that she commenced secondary school studies on September 5, 1989. Between September 1989 and June 1993 she completed 20 credits toward a secondary school diploma. In order to obtain an Ontario Secondary School diploma, a student must complete 30 credits.
Ms. Alvarez did not complete any further credits after June 1993. She was enrolled, for one month, as a full-time student at Bishop Ryan High School in September 1993. Later, she was enrolled as a full-time student at Bishop Ryan High School between February and April of 1994. Between February 2, 1995 and March 6, 1995, she was enrolled at Saltfleet High School as a full-time student.
Ms. Alvarez' application for accident benefits was completed by her mother. At part 10, the following notation appears: "Sandra intended to go back to high school in September '95." In subsequent interviews, Ms. Alvarez indicated that it had been her intention to return to high school studies in September 1995.
The Insurer did not provide Ms. Alvarez with an election as between income replacement and education disability benefits.
Subsection 15(1) of the Schedule specifies that:
An insured person who sustains an impairment as a result of an accident is entitled to a weekly education disability benefit if the insured person meets the following qualifications:
- The insured person,
i. Was less than sixteen years of age at the time of the accident,
ii. Was enrolled on a full-time basis in elementary, secondary or post-secondary education at time of the accident, or
iii. Completed his or her education less than one year before the accident and was not employed , after completing his or her education and before the accident, in an employment that reflected his or her education and training.
I find Ms. Alvarez' submissions that she could meet the requirements of subsection 15(1)1.iii, depending on the evidence which she can present about not being employed or in an employment reflecting her education and training, more compelling than her alternative position that she meets the requirements of subsection 15(1)1.ii.
Sandra worked from June 1 to June 25, 1995 at Sam and Son International Cheese after withdrawing from school. The Employer's Confirmation of Income states that she earned a little more than $1,000 during that period of time.
The Commissioner's Guideline No.4/95 for identifying individuals who qualify for education disability benefits was issued pursuant to Section 268.3 of the Insurance Act14 and according to subsection 268.3(2), "shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule. "
Under the heading "Completed School," the FSCO guideline states:
An individual qualifies for the weekly disability benefit if he or she completed his or her education within one year prior to an automobile accident and is not employed or in an employment reflecting his or her education and training.
An individual who withdraws from school also qualifies for the weekly education benefit if the automobile accident occurred within one year of withdrawing from school.
Ms. Alvarez submitted that she qualified as having "completed school"as the automobile accident occurred within one year from the date that she withdrew from school. If Ms. Alvarez were restricted to receiving an income replacement benefit, it would be based on approximately one month of work, a calculation based on her earning potential when it was at its lowest. However, if Ms. Alvarez were given the election between income replacement benefits and education disability benefits, she would be entitled under subsection 29(5) to have her pre-accident earning capacity calculated according to a formula based on the average industrial wage.
According to Liberty Mutual, the Commissioner's Guideline does not interpret properly the word "completed" which means to have fulfilled, not lacking in any element so that nothing substantial is remaining to be done. Liberty submits that "completed" is not synonymous with "withdraw" and the ordinary grammatical meaning does not allow for an equation of the two terms.15 Liberty asserted that "completed" must mean some educational attainment, such as a credit.
I disagree with this reasoning. I believe that the word "completed" can be interpreted by relying on both a subjective and an objective standard; that is, someone's education is completed when they withdraw from secondary school. It does not have to involve the attainment of a certain amount of credits. Otherwise, someone who is lacking as little as one credit for graduation could be said not to have completed their education. If the intent was to convey some educational attainment, the section could have been drafted by substituting the word "graduated" for the word "completed."
The Commissioner's Guideline deals specifically with Ms. Alvarez' situation when it states that an individual who withdraws from school qualifies for the weekly education benefit if the automobile accident occurred within one year of withdrawing from school. Consequently, Liberty Mutual would be obliged to offer Ms. Alvarez an election between education disability benefits and income replacement benefits, if Ms. Alvarez provides evidence that she was not employed in an occupation that reflected her education and training. If Ms. Alvarez qualifies under subsection 15(1)1.iii for education disability benefits, her pre-accident earning capacity should be calculated in accordance with subsection 29(5).
EXPENSES:
I leave the issue of expenses to the discretion of the hearing arbitrator.
July 20, 2001
Judith Killoran
Arbitrator
Date
Neutral Citation: 2001 ONFSCDRS 109
FSCO A98–000801
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SANDRA ALVAREZ
Applicant
and
LIBERTY MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Ms. Alvarez is not entitled to access funding for qualified skilled supervisory care, under category level one attendant care, as described in part 1 of Form 1, or level three attendant care, as described in part 3 of Form 1.
The categories or classifications for attendant care set out in Form I are exhaustive for the purposes of completing an attendant care assessment pursuant to section 50 of the Schedule.
For the purposes of an attendant care assessment pursuant to section 50, the hourly rates for services set out in subsection 10 of section 50 are to be used as the fixed rate for the calculation of attendant care costs under part 4 of Form 1.
Ms. Alvarez may qualify for payment of education disability benefits, pursuant to section 15 of the Schedule, and if so, her pre-accident earning capacity should be calculated in accordance with subsection 29(5) of the Schedule.
July 20, 2001
Judith Killoran
Arbitrator
Date
Footnotes
- The 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.
- Exhibit 1, Tab 1
- (Court of Appeal, March 22, 2000) www.ontariocourts.on.ca/decisions
- S.O. 1993, c.10
- (FSCO A96-000394, January 15, 1996)
- Hui and Security National Insurance Company, (OIC A-000055, November 15, 1991)
- Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths Canada Ltd., 1994) at p. 131
- Ibid., p. 186
- Ibid., p. 186
- (OIC A96-000898, February 28, 1997)
- (FSCO A99-000201, November 27, 2000)
- Ibid., p. 4
- Exhibit 1, Tab 11
- Exhibit 1, Tab 9
- See Liberty Mutual's Brief of Authorities, Tabs 1-12```