Neutral Citation: 2001 ONFSCDRS 145

FSCO A99-000521

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LUCIA STARGRATT

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

March 13, 14, and 15, 2001, and June 14 and 15, 2001, at the Offices of the Financial Services Commission of Ontario June 11 and 12, 2001 in Sudbury

Appearances:

Andrew R. Kerr for Ms. Stargratt

Claudia Storto for Zurich Insurance Company

Issues:

The Applicant, Lucia Stargratt, was injured in a motor vehicle accident on March 14, 1998. She applied for statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Stargratt 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 Ms. Stargratt entitled to Caregiver expenses?

2. Is Ms. Stargratt entitled to Attendant Care expenses?

3. Is Ms. Stargratt entitled to a medical benefit for physiotherapy services in accordance with the treatment plan filed by Sudbury Physio Centre dated December 15, 1998?

Result:

1. Ms. Stargratt is entitled to Caregiver expenses.

2. Ms. Stargratt is entitled to Attendant Care expenses.

3. Ms. Stargratt is entitled to a medical benefit for the physiotherapy treatment plan filed by Sudbury Physio Centre.

4. Ms. Stargratt is entitled to a special award of 50 percent of the outstanding benefits.

Background:

Ms. Lucia Stargratt was a young mother of a year-old daughter prior to her motor vehicle accident in Sudbury.

She had overcome many obstacles to be able to live the life of an at-home mother. In 1980 at a very young age she had undergone treatment for Hodgkin's disease. Following a recurrence in 1982, she underwent further radiation and chemotherapy. Some two years later, she began to experience a tremor in both hands, followed by tremors of the head.

Gradually, she began to find it difficult to write and do fine motor tasks with her dominant right hand. The tremor was investigated medically and variously was described as "essential tremor" and "cerebellar degeneration." Subsequently, it was identified as "dystonia."

Notwithstanding her handicap, Ms. Stargratt completed a community college travel course, married, and had a daughter, Alexandra, whom she cared for at home. Following the accident, the tremors apparently worsened. Ms. Stargratt alleges that due to the back and neck pain from the accident, and the increased tremors, she was no longer able to care for herself, her daughter, or to function in many of the basic tasks of daily living.

The Insurer denies that any disability Ms. Stargratt suffered derived from the accident. Rather, it points to her pre-existing disability as the cause of any post-accident problems.

EVIDENCE AND ANALYSIS:

Ms. Stargratt testified on her own behalf. She was a persuasive and credible witness as to her condition and capabilities both before and after the motor vehicle accident.

She testified that, prior to the accident, she managed to care for their child, to perform the basic household functions, and to carry on a reasonably normal life. Although she was afflicted with ongoing tremors, these principally affected her right hand and her head. She had some difficulty with fine-motor tasks and writing, but was able to compensate by using her non-dominate left-hand.

Prior to the accident, Ms. Stargratt lived in an apartment with her husband and infant daughter, and was the primary caregiver for her daughter. She testified that she did the majority of the housework, cooking, and child care.

On March 14, 1998, while driving along Long Lake Road in Sudbury, Ms. Stargratt was sideswiped by another vehicle, which hit the driver's side of her car. The car was forced off the roadway and into an adjacent snowbank. She had to leave the car by the passenger side since the force of the collision apparently jammed the driver's side door.

She was taken to a hospital, given some pain medication, and then released. From the beginning she complained of pain in her left shoulder and the left side of her neck. Upon examination by her own doctor she began physiotherapy, and received more pain relief medication.

The disability certificate, completed by Dr. B. G. Bloomfield shows that Ms. Stargratt exhibited strain and contusions to the left shoulder, upper and lower arms and elbow. This is consistent with the evidence of Ms. Stargratt and her family at the hearing.

Ms. Stargratt also complained of some difficulty in handling her baby, due to the soft tissue injuries, and an increase in her tremors, especially those on her left side.

Ms. Stargratt first began a programme of physiotherapy, in April 1998, on referral from Dr. Bloomfield. She later discontinued this temporarily, also on the advice of her doctor.

On April 1, 1998, some two weeks after the accident, Ms. Stargratt developed a severe back pain while putting something away in a closet. She testified that the pain, which arose suddenly, was incapacitating. Her sister, who was assisting her in the house, found her on the floor, virtually paralysed by pain.

Ms. Stargratt testified that she was helped into bed by her sister, and then driven to hospital, where she was examined by Dr. J. V. Mulloy in the emergency room. This was her first contact with Dr. Mulloy, who was later to become her family physician.

The hospital reports noted low back pain, severe lumbar discomfort, a sudden onset, bilateral numbness of the toes. Ms. Stargratt was sent home again with a prescription to relieve pain.

Although, subsequently, she was able to walk and move about without debilitating pain, the episode marked the low-point of her recovery. Following this episode, she was completely unable to care for her daughter, to pick her up or to perform many of the basic functions of everyday life. She also testified that her tremor again worsened, affecting her left side, as well. This left her incapable of using her left hand to compensate for the right hand, as she had before the accident.

At this time, Ms. Stargratt's husband, who was a teacher by profession had obtained work on Manitoulin Island, and was not available during the week to assist with household matters and the care of their daughter. Ms. Stargratt testified that she was incapable of lifting her daughter, changing diapers, dressing her, and had difficulty feeding and otherwise caring for her at this time due to her increased tremors, and significant back and neck pain. She also stated that she had difficulties with meal preparation, some aspects of dressing and grooming, as well as with basic household tasks.

Luckily for Ms. Stargratt, she had a supportive family who was able to assist her in managing her household and caring for her child. According to Ms. Stargratt's testimony, her sister, Anita D'Angelo took on the bulk of the duties in assisting her. This was confirmed by the sister's testimony.

At the time of the accident Ms. D'Angelo was a student. She testified that she left her studies to be available to help Ms. Stargratt. With the exception of some time with Ms. Stargratt's parents, Ms. D'Angelo would stay with Ms. Stargratt at her apartment and assist her with caring for herself and the baby. She would go home weekends, however, when Mr. Stargratt returned from his teaching job in Manitoulin. Ms. Stargratt testified that her sister's assistance was necessary, since in the absence of her husband she could not adequately care for her daughter.

Following the sudden onset of low back pain, Ms. Stargratt was cared for at her parent's house.

Subsequently, in June of 1998, Zurich sent Ms. Stargratt to see Dr. J. C. Wardill, a retired orthopaedic surgeon, for an Insurer's examination. Dr. Wardill examined Ms. Stargratt, attended at various hospitals to examine records. He concluded that: "I have difficulty in attributing incapacity entirely due to her motor vehicle accident."

In addition Dr. Wardill adopted the opinion of a treating physiotherapist, Mireille Picard and did not attribute the sudden onset back pain to the accident. Even though he found that "she might have strained her cervical spine," he commented further that "I am not able to find objective evidence of impairment, although I am in no way able to deny the possibility of some symptoms arising from her motor vehicle accident."

The report of Mireille Picard, referred to by Dr. Wardill is the initial assessment by Sudbury Physio Centre, dated April 17, 1998. Ms. Picard states:

Finally, Mrs. D'Angelo-Stargratt also complains of a very sharp constant pain in her lower back, with pain radiating into both her right and left thigh. As previously mentioned, this pain started approximately two and a half weeks following the accident, while Mrs. D'Angelo-Stargratt was standing by her baby's crib. I am of the opinion that this lower back pain is not related to the injuries sustained in her car accident. For this reason I will not review this area any further, however I do think that it is important to mention as it may impede on her ability for her to participate in an active exercise program for her cervical and shoulder injuries.

Ms. Picard outlines no reason at all for considering the back pain unrelated to the accident. Nor did the Insurer call her to testify as to the reasons behind her belief.

By merely adopting Ms. Picard's opinion about causation, Dr. Wardill missed an opportunity to explain fully his view of the relationship, of the back-pain complaint to the original soft tissue injuries. This lacuna is critical to Dr. Wardill's opinion.

It is clear from Dr. Wardill's testimony at the hearing that he suspected that Ms. Stargratt was guilty of symptom magnification, and that he discounted her subjective complaints of pain. It is also apparent that Dr. Wardill believed that "she was able to undertake caregiving prior to the development of backache."

I note that this differs from Ms. Stargratt's testimony, and the notation on Dr. Bloomfield's disability certificate dated March 26, 1998, which remarks on her inability to care for her baby. I prefer Ms. Stargratt's evidence and find that she was already experiencing difficulties with caregiving prior to the onset of the lower back problem.

I find, as well, that Dr. Wardill, in assuming that Ms. Stargratt's caregiving problem developed at a later date, was mistaken in at least one fundamental assumption, a mistake that weakens the credibility of his ultimate opinion on disability.

Dr. Wardill, in his cross-examination, admitted that he based his evaluation of Ms. Stargratt on assumptions and preconceptions drawn from his experience with soft tissue injuries in the general population. Consequently, he viewed the prolongation of her injuries with undue suspicion, and did not take into account any interaction with Ms. Stargratt's peculiar condition, which he considered outside of his expertise.

Zurich relied on Dr. Wardill's conclusions to deny caregiver and attendant care benefits. Zurich, later, also sent a copy of Dr. Wardill's letter to Ms. Stargratt's physiotherapist, who then withdrew a treatment plan filed on behalf of Ms. Stargratt.

Essentially, much of the Insurer's case is built on the foundations of Dr. Wardill's opinion. According to the Insurer, if Ms. Stargratt was disabled to the extent that she could not provide caregiver services to her daughter, or do her household duties, it was due to a pre-existing tremor, and not due to the accident. The Insurer in support of its case points to medical records showing a pre-existing tremor, as well as to an application for disability benefits some years earlier.

There is no question that Ms. Stargratt had a tremor prior to the accident. The Hospital for Sick Children records and most subsequent medical records document investigations into the cause of the tremor, as well as references to the existence of some sort of tremor. Most opinions make a connection between the cancer treatment Ms. Stargratt received at an early age, and the development of the tremors.

There is also no question that the tremor restricted Ms. Stargratt in many ways prior to the accident. She testified that she had difficulty with fine motor control. She had particular problems performing delicate tasks with her dominant right hand. She also had difficulty finding employment, and for practical purposes, was unemployable.

Ms. Stargratt admits her pre-accident disability. She is not claiming for loss of employment. She maintains, however, that she was functional as a mother and a homemaker prior to the accident and was not functional after the accident.

Indeed, even Dr. Wardill's report admits that Ms. Stargratt suffered some soft tissue injuries in the accident. He was, however, highly skeptical of the linkage between her claimed post-accident disability and the motor vehicle accident.

Dr. John McCall, an orthopaedic surgeon, examined Ms. Stargratt and reviewed her treatment records for the period following the accident. Unlike Dr. Wardill, he opined that it would not be surprising if Ms. Stargratt's soft tissue injuries did not resolve within the same time-lines as most uncomplicated cases. Dr. McCall stated that when working with handicapped persons suffering from the after-effects of polio, recovery from soft tissue injuries consistently took longer than would be projected in the case of an otherwise healthy person. He opined that Ms. Stargratt's dystonia would also likely tend to complicate and delay the resolution of soft-tissue injuries.

Dr. McCall also opined that what Ms. Stargratt identified as low-back pain was actually referred pain from the neck and shoulder, making a direct causative link to the initial injuries reported subsequent to the accident.

Dr. Earl Consky, a neurologist and an expert in movement disorders, testified that Ms. Stargratt's condition was a dystonic tremor. Dr. C. J. Watling, a neurologist, had also identified dystonia after the accident.

As noted, Ms. Stargratt freely admitted that the tremors pre-dated the accident. She claimed however that, coincident with the accident, the tremors worsened. She could not prepare food and feed her baby. She had trouble lifting and holding her child. She also attributed this worsening to the accident.

I have no hesitation in finding that Ms. Stargratt suffered a level of disability due to her tremor prior to the accident. She acknowledges that fact, and it coincides with the decision of the Social Assistance Review Board, referred to by the Insurer. She was, however, according to her testimony, and that of her husband and family, capable of taking care of her small family prior to the accident. Their testimony, and the notes and records of Dr. Bloomfield and the evidence of Dr. Mulloy suggest that the increased tremors following the accident, combined with the neck and apparent back pain, made her dependant, and unable to fulfill the role of homemaker and caregiver to a young infant.

I have no hesitation in accepting their evidence that, following the accident, the combination of soft tissue pain and increased tremors made it impossible to carry out her caregiver, personal care and homemaking functions after the accident.

The Insurer, however has suggested that the normal course of her condition was that it would worsen over time. Thus, even if she was disabled after the accident, it was due to the normal course of dystonia, and was not accident-related.

In this assertion, the Insurer is supported by the testimony of Dr. Robert Chen, who is also an expert in movement disorders. Dr. Watling, another neurologist who examined Ms. Stargratt after the accident, also raises this possibility, although he makes no conclusion.

Dr. Consky, in his report and in his testimony, confirmed the diagnosis of dystonia. He explained that a tremor can be worsened by stress and stressful incidents even without trauma to the head. He willingly categorized the motor vehicle accident as such a potential stressor.

Dr. Consky also pointed out that the record shows that, prior to the motor vehicle accident, the tremor was variously diagnosed as parkinsonian symptoms and cerebellar tremor, as well as essential tremor. Dr. Consky, however discounted the earlier diagnoses as not reflective of her current state.

He also testified that recent research has suggested a link between sudden, jarring movement and the onset or worsening of neurological conditions such as dystonia. In particular, he referred to research showing a significant association between trauma and the onset of dystonia.

In his view, it was highly plausible that there could be a linkage between the onset of severe dystonic tremors, and the neck trauma caused by the accident. He also raised the possibility that while Ms. Stargratt may have suffered from a cerebellar tremor prior to the accident, the severe dystonic tremor, itself, may have been directly due to the accident. Dr. Consky clearly stated, "there is an association between preceding head or neck or shoulder trauma and the subsequent development of Cervical Dystonia."

Dr. Chen's testimony makes it clear that there is not a complete consensus amongst experts on the question of sudden head or neck movements as a trigger for dystonic symptoms. Dr. Chen agreed with much of Dr. Consky's assessment, with the exception of the direct linkage between the onset of dystonia and the accident.

While it may be medically possible that the accident was the sole cause of Ms. Stargratt's dystonia, I find it difficult to accept, based on the evidence before me. As Dr. Chen noted:

While there are reports in the literature associating peripheral injury with development of dystonia, the issue of post-traumatic dystonia remains highly controversial.

However, even Dr. Chen acknowledged the potential linkage between stress and the onset of heightened tremors.

Ms. Stargratt did report worsening of the neck tremor and arm tremor starting about 3 weeks after the accident. The reason for this worsening is unclear. There is no evidence of any serious brain injury. However, it is known that physical or emotional stress may worsen symptoms such as tremor or dystonia.

Dr. Chen also conceded:

However, it is possible, but not proven, that the pre-existing tremor may have worsened as a result of the accident, possibly through associated physical and emotional stress.

Much of the neurological evidence from Drs. Consky and Chen focussed on arriving at an exact diagnosis and prognosis for Ms. Stargratt. While the discussions were interesting and illuminating, a definite conclusion on either question is not absolutely necessary to decide this case.

As Arbitrator Blackman stated succinctly in Hearn and Allianz (A-97-001667 August 17, 1999):

This Commission has long held that it is not necessary for an arbitrator to provide a medical diagnosis to determine that an applicant is disabled. What is sufficient is that I accept, as I do in this case, that the Applicant is legitimately having physical, psychological or emotional difficulties which disable her.

The Applicant, in the case of the caregiver benefit, must prove that she "as a result of and within 104 weeks after the accident, suffers a substantial inability to engage in the caregiving activities."

To quote Arbitrator Blackman again (Hearn and Allianz, supra):

This Commission has repeatedly held that the accident need not be the only cause of the subsequent injuries, but rather, must significantly or materially contribute to the Applicant's impairment. In addition, this Commission has adopted the long-standing "thin skull rule" which, in the context of statutory accident benefits, means that one is not to be denied weekly benefits because one's pre-accident physical, psychological or emotional condition makes one more vulnerable to disability than might normally be the case.

Ms. Stargratt presents as a classic "thin skull" claimant. She was functional prior to the accident, but with significant and daunting impairments. She had little or no margin of functionality, as demonstrated by the documents from the Social Assistance Review Board.

She functioned, in part, due to her willingness to try and overcome obstacles. As the Board noted:

Before closing, the Board wishes to state that a striking feature of this case was the sincere willingness of the Applicant to enter the workforce. The Board was impressed with the degree of motivation and determination displayed by the Applicant with her interpersonal as well as her academic skills. She appeared to the Board to be the kind of individual an employer would find reliable, trustworthy, positive, hardworking and very pleasant.

To someone getting by on determination and not much else, an injury that might be minor to another person can well be crippling.

I accept Ms. Stargratt's assertion that she was able to perform her basic housekeeping and caregiving activities prior to the accident, albeit with some difficulty at times. I find that, after the accident she was unable to do either the caregiving, homemaking, or self-care duties that she had undertaken earlier.

I find that the accident significantly and materially contributed to Ms. Stargratt's disability both through the pain of soft-tissue injuries to the neck and shoulders, and through the worsening of her tremors.

I find that, although the tremors were not caused by the accident, their severity was greatly increased following the accident, whether due to the stress of the accident and the subsequent injuries, or for some other reason not, as yet, clearly identified. Clearly, for Ms. Stargratt, the accident is the temporal divide between capacity and disability.

Ms. Stargratt claims for both caregiver and attendant care benefits. Section 13(1) of the Schedule provides for a caregiver benefit:

13. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefits if the insured person meets all of the following qualifications:

14. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefits shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

I accept Ms. Stargratt's evidence and find that she suffered a substantial inability to engage in caregiving activities that she undertook prior to the accident. In addition to being unable to feed, change, bathe, clothe and otherwise care for her daughter, she was unable to pick up and carry her child. In essence, she was unable to provide emergency protection in the event of fire or other disaster.

The insurer, however, has argued that the caregiving services claimed are not compensable since Ms. Stargratt did not incur any caregiving expenses. This is consistent with the position expressed in the May 12, 1998-letter from Dorothy White of Zurich:

Under this section, the caregiver benefit shall pay for reasonable and necessary benefits incurred as a result of the accident in caring for a person in need of care. Along with the name, address, phone number, of the caregiver, we require the social insurance number, a detailed list of all caregiving duties that she did, and a receipt showing that payment was received. The maximum payable under this section is $250.00. You indicated during our conversation, and on your expense sheet, that no monies had been paid, and an expense has not been incurred.

Ms. Stargratt is not an exceptionally sophisticated applicant. The special significance of Ms. White's repeated emphasis on the word "incurred" was, in all likelihood lost on Ms. Stargratt. In the absence of concurrent legal advice of the special meaning put on the word by Zurich, and the consequences to her of this interpretation, her apparent admission that she had "incurred" no expenses, cannot be given any serious weight.

Ms. Stargratt testified at the hearing that her sister and family provided caregiver and other services to her, when she was in need. She clearly felt an obligation to them, especially to her sister who dropped out of her professional training to help her. She also, clearly, had insufficient funds to pay anyone, let alone a professional caregiver. Her husband was a first-year teacher, on a limited salary, living and working at a substantial distance from home. They, of necessity, maintained two households, and supported a young child. Ms. Stargratt had no independent means or income.

Without the Insurer advancing Ms. Stargratt funds for caregiver expenses, no expenses would or could be paid.

The second paragraph of Ms. White's letter, however, stated: "Based on the information contained in the Accident Benefits Application, your disability Certificate, and your Election form, you qualify for expenses under Caregiver Benefits." Thus Ms. Stargratt was put in the absurd position of being eligible for benefits, that under the circumstances, and the insurer's overly restrictive requirements, could never be payable.

The word "Incurred" has long been part of the accident benefit claims vocabulary. In Smith (Committee of) v. Wawanesa Mutual Insurance Co. (42 O.R. (3d) 77) the Divisional Court looked at the meaning of the word in the context of an earlier no-fault scheme. Campbell J., speaking for the court said:

I conclude that an insured, to incur an expenditure within four years within the meaning of the standard policy, need not actually receive the items or services or spend the money or become legally obliged to do so. It is sufficient if the reasonable necessity of the service or item and the amount of the expenditure are determined with certainty before the end of four years. It is a question of fact in each case whether the requisite degree of certainty has been established.

Monachino v. Liberty Mutual Fire Insurance Co. (2000 CanLII 5686 (ON CA), 47 O.R. (3d) 481), a decision of the Court of Appeal, also considered the payment of caregiver expenses. This case arose under the Bill 164 Schedule which provided for payment of: "the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person." Finlayson J.A. found that:

I cannot accept the argument of the appellant. It appears to me that the language of the no-fault schedule is clear and unambiguous. There are three conditions to entitlement; a cost must be incurred, it must be reasonable and it must be for a professional caregiver. To accept the appellant's interpretation would be to rewrite the statute as opposed to applying its clear language.

In the majority decision in Monachino, it was not necessary to directly address the definition of "incurred," since the majority relied upon the particular wording of the statute, which referred to professional caregivers. Only Weiler J.A., in dissent, dealt with the trial judge's offhand comment that the relevant sections of the Schedule were "intended to indemnify a person who has suffered a loss of income or has incurred an out-of-pocket expense."

Subsection 13(2) of the Bill 59 Schedule reads as follows:

The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for the person in need of care.

Bill 59 Schedule, provides that expenses be reasonable and necessary. It also omits the reference in the Bill 164 Schedule to professional caregivers or lost wages. Clearly the legislature intended to change both the wording and the effect of the Schedule with regard to caregiver benefits. It also chose to retain the use of the word "incurred," a word that had been judicially interpreted as part of earlier no-fault provisions.

Ms. Stargratt's claim is made under the provisions of the Bill 59 Schedule. I find that the use of the word "incur" in subsection 13(2) of the Schedule doe not restrict caregiving claims to actual out-of-pocket expenses. Rather I find, that the legislature, in using a word that had an accepted, judicially interpreted meaning, intended that it should encompass a broader range of obligations.

I find that Ms. Stargratt, in the words of Campbell J. "need not actually receive the items or services or spend the money to become legally obliged to do so."

On the evidence of Ms. Stargratt, Ms. D'Angelo, and their parents, which I accept, I find that Ms. Stargratt had incurred an obligation arising out of the provision of care services to her and her daughter. It was also anticipated, as indicated by the early claim for caregiving services, that the Insurer would provide the funding to satisfy this obligation.

I have found that Ms. Stargratt suffered a disability arising from the accident. She testified that she could not care for her daughter as she had before the accident. She had great difficulty lifting, carrying, changing, feeding, and dressing her. These tasks she had been able to accomplish prior to the accident. Dr. Bloomfield's disability certificate and the family witnesses also confirm that the problems with caregiving arose contemporaneously with the accident.

Likewise, Ms. Stargratt's need for personal assistance should have been obvious to the Insurer from their first contact with her. Her statement to the Insurer, her activities of daily living responses, and the disability certificate, as well as direct contact with Ms. Stargratt should have suggested a definite need for assistance.

Her family physician, Dr. Bloomfield, noted in a letter dated June 26, 1998: "the pain and limited movement in the involved areas as well as the tremor have interfered with her ability to care for her baby and family."

As the evidence shows, prior to the accident, Ms. Stargratt provided the logistical support for her small family. She cooked, cleaned, cared for her daughter, did laundry, shopping, and general housework. Someone had to take over those functions once she became disabled.

I find that both caregiving and attendant care were reasonable and necessary for Ms. Stargratt following the accident, due to the disability arising from the accident, and the interaction of her pre-existing condition with the accident.

Ms. Stargratt has filed a chart summarizing the hours and duration of the services provided to her by her family. Unfortunately it does not break out the individual tasks performed and the hours devoted to each head of Ms. Stargratt's claim. Although useful in showing the aggregate hours put in by the family, it does not necessarily reflect Ms. Stargratt's entitlement to caregiver and attendant care services pursuant to the Schedule.

By not funding caregiving and attendant care services to Ms. Stargratt, the Insurer forced the family into an ad hoc arrangement to deal with her real need for assistance. Had professional care been provided, no doubt there would have been detailed time-keeping and a complete paper trail. It is too much to expect the same of a family, forced by circumstances to fill the gap in care.

The Schedule breaks down homecare responsibilities variously into Housekeeping, Caregiving and Attendant Care. Necessarily, there is some overlap. In the real world, a single act, such as preparing and serving a meal could potentially be characterized as any of the three categories, depending on the surrounding circumstances.

Every claim encompassing homemaker and care-related service also involves a certain arbitrary characterization as one or another of the approved categories.

Ms. Stargratt's claim and the testimony supporting it could be summarized to a degree by the statement that she required help to continue functioning and caring for her family. Ms. D'Angelo did not specify, and could not be expected to detail exactly which services, and which times were spent in the various statutory categories.

Ms. D'Angelo stated that she attended on Ms. Stargratt and was on call 24 hours per day, during the week when Ms. Stargratt's husband was working in Manitoulin. She had assistance from her mother, and to a lesser degree, her father, particularly when Ms. Stargratt moved into her parent's home.

Ms. Stargratt has claimed for caregiving and attendant care services. She has not claimed for housekeeping and home maintenance services. Each of these categories has specific limitations. Caregiving, for example is capped at a maximum of $250 per week for the first child. Likewise attendant care claims, in the absence of catastrophic impairment, cannot exceed $3,000 per month. Any housekeeping services, for the purpose of this claim, are non-compensable.

Until Daniel Stargratt returned from Manitoulin at the end of term, Anita D'Angelo, with the assistance of her family, was providing essentially 24 hour standby care, Monday to Friday. Once Mr. Stargratt returned to Sudbury, Ms. Stargratt was still provided for by her family during working hours on weekdays, essentially, at least, a forty-five-hour week, if consideration is given to the time that Mr. Stargratt was away from the home.

If all this time was accounted for as caregiver services, then the limit of $250 per week would be quickly surpassed, and the balance would remain uncompensated. For the purposes of this claim, then the bundle of services provided to Ms. Stargratt by her family must be unbundled and separated out.

The attendant care provisions mandated in subsection 16(1) of the Schedule further provide in subsection 16 (2) (a) for "services provided by an aide or attendant." Neither phrase is defined in the Schedule nor in the Act.

The Oxford Canadian Dictionary defines "aide" as: "1. An assistant 2. An aide-de-camp (abbreviation). Likewise "attendant" is defined as: "a person employed to wait on others or provide a service (flight attendant; parking lot attendant)."

Ideally, attendant care claims will focus on assisting or providing a service to the applicant, while caregiver services may be seen as focussing on services replacing those normally provided by the claimant to a dependent.

As early as June 1998, Ms. Stargratt, through her lawyer, Mr. Kerr, had been supplying Zurich with estimates of the time expended in assistive services. Unfortunately most estimates were of an overall time expended and did not break out the individual allocations. Mr. Kerr noted on June 9, 1998:

Whether this is paid under the caregiver benefit or under the attendant care benefit (it is actually a combination of both) or as a rehabilitation claim, it seems to me irrelevant, but the fact that Anita is not demanding money from her sister (who cannot afford to pay, anyway) should not mean that she is not entitled to be compensated for the extraordinary sacrifice she has made and the labour she has provided.

Although the evidence shows that Ms. D'Angelo provided the bulk of the care services to Ms. Stargratt, significant time was dedicated by other members of the family as well. For the purposes of this decision, however, I am concerned only with Ms. Stargratt's reasonable entitlement to services, and not the identity of the individual care provider.

Accepting Ms. Stargratt's and Ms. D'Angelo's evidence that supportive services were provided on essentially a twenty-four-hour basis in the first months, I would allocate this time as follows:

Ms. Stargratt required assistance during the day, in grooming, dressing, having clothes prepared and washed, and having meals prepared and cleaned up. The same services were provided to Alexandra Stargratt. At night, Ms. Stargratt slept. She required no personal assistance. In the event of a fire she was mobile and could have left the apartment.

At night, Alexandra Stargratt still had to be cared for. She had to be changed, as required, comforted, when awakened, and watched over in the event of an emergency. In the event of a fire, she required someone to be able to carry her out of the apartment. Ms. Stargratt could not pick up and carry her daughter. I find that Ms. D'Angelo's presence in the apartment at night was directly attributable to her duties as a caregiver for Alexandra, and to no other reason.

During the day, as well as caregiving, Ms. D'Angelo's presence was chiefly required to assist Ms. Stargratt. Although Ms. Stargratt strived to become independent in personal care, the preparation and cleanup of meals, the washing and putting away of clothing, and even the process of dealing with the insurance claim required assistance. Someone needed to shop for food and household essentials as well as be available for emergencies. In all these matters, Ms. D'Angelo and her family assisted Ms. Stargratt.

I find that such matters are within the scope of attendant care or assistive services contemplated by the Schedule. I note that the attendant care section also covers the full cost of a care facility or a nursing home. The cost of such facilities also necessarily includes the provision of meals, service infrastructure, and accommodation, as well as direct personal services. Given that the Schedule specifically provides for care by family members, I see no reason why such services provided by family members should not be reimbursable as well.

Clearly, items that solely meet the definition of housekeeping and home maintenance services must be excluded from an attendant care claim. The Schedule, however, consistently refers to housekeeping services as "housekeeping and home maintenance." The principle of interpretation Noscitur a sociis, which apply to two or more terms linked by "and" or "or" means that "housekeeping" is necessarily modified by its inclusion with "home maintenance." As the Court of Appeal noted in R. v. Goulis (1981) 32 O.R. (2d), 55 (C.A.):

When two or more words which are susceptible of analogous meanings are coupled together they are understood to be used in their cognate sense. They take their colour from each other, the meaning of the more general being restricted to a sense analogous to the less general.

I find that the juxtaposition of "housekeeping" with "home maintenance" in section 22 of the Schedule, suggests that this section is intended to target services concerned with the maintenance and upkeep of the fabric of the home. I would include painting, window washing, lawn maintenance, as well as generalized maintenance-related cleaning such as "spring cleaning" in this category.

Other cleaning, such as routine vacuuming, food preparation cleanup, and laundry could fall under either housekeeping and home maintenance or attendant care, depending on the context and the purpose of the service.

I find that, since the attendant care claim is for a period when Ms. Stargratt's husband was absent from the household, the majority of incidental cleaning services provided by Ms. D'Angelo were part of her generalized assistance to Ms. Stargratt and not household or home maintenance services.

Indeed, Ms. Stargratt noted on her "Activities of Normal Life" form, dated March 26, 1998 that most home maintenance activities were done by the landlord. Even vacuuming was not an issue, since there was no carpeting in the apartment. It is therefore, unlikely that Ms. D'Angelo devoted much time to purely housekeeping matters, as defined in the Schedule. I find that there should be no deduction of hours for unclaimed housekeeping from the time allocated for Ms. D'Angelo.

A small part of the daytime period would have been devoted exclusively of Alexandra. When Ms. D'Angelo was bathing or changing her, she would not have been available to assist Ms. Stargratt. At all other times, Ms. D'Angelo would have been providing services to Ms. Stargratt, on standby to Ms. Stargratt's needs, or providing services to both.

Having found that, while Ms. Stargratt was sleeping, Ms. D'Angelo was caregiving, I allocate a nightly eight-hour period to that benefit. I am also satisfied that Ms. D'Angelo devoted at least eight hours per day to Ms. Stargratt. I am not convinced that the balance of the day was necessarily devoted to either Ms. Stargratt or her daughter, nor necessarily devoted to compensable activities.

Consequently, I find that from the date of the accident to January 1, 1999, with the exception of July and August 1998, Ms. Stargratt is entitled to 40 hours of caregiving and 40 hours of attendant care services per week.

During July and August 1998, and January to June 1999, Mr. Stargratt was working in Sudbury and available during the evenings, as well as weekends. I find that, during those periods, there was no need for overnight caregiving. I find that further assistance was required during Mr. Stargratt's workday for both Ms. Stargratt and for Alexandra. This should encompass the entire time that Mr. Stargratt was absent from the home, which I estimate, on average, to be nine hours per day, five days per week.

As noted in the evidence, Mr. Stargratt was not working for either July or August 1999, and no claim has been made for either attendant care or caregiver services for that time-frame.

During this period Ms. Stargratt also gave birth to a son.

Dr. Mulloy's report of August 9, 1999, showed that Ms. Stargratt still complained of pain from her neck to her pelvis, together with muscle spasms along the spine. Although Dr. Mulloy found that she could flex forward, and was able to re-start physiotherapy, she had significant ongoing problems. Clearly, Ms. Stargratt had improved from the previous year, notwithstanding the extra stress of her pregnancy. However, she was still troubled by pain, and her ongoing dystonic tremor limited her ability to cook, feed her children and do any tasks that required fine motor co-ordination. I find that, in August 1999, she still suffered from a substantial inability to care for Alexandra, and still required some assistant services, such as assistance in meal preparation.

In September 1999, Alexandra first began to attend nursery school. Mr. Stargratt was now working in Sudbury. Consequently, the need for caregiving and attendant care services dropped significantly. Mr. Stargratt should have been able, at least, to provide morning and evening meal preparation for the children and Ms. Stargratt. Given her continuing, unabated tremors, Ms. Stargratt would need assistance with daytime meals, and in caring for Alexandra on days when she was not at nursery school. This left some four days per week when child care was required for Alexandra. Ms. Stargratt also claims for the cost of the nursery school.

I find, as well that Ms. Stargratt required some two hours assistance per week in meal preparation and cleanup during the time when child care was not provided in the home.

Doubtless, she also had problems with child care with Noah, her newborn. The caregiving provisions of the Schedule, however, only provide for assistance relative to dependants living with the injured person at the time of the accident. Patently, this was not the case for her son, who was not even conceived at the time of the accident.

I find that Ms. Stargratt's disability continued, at least into the autumn, and probably into the following year. Dr. Consky's examination in October 1999 revealed impaired handling of pens and cutlery and other manual tasks due to dystonia. He also remarked on the significant and ongoing tremor.

By this point, notwithstanding the ongoing pain complaints, dystonia-related symptoms seem to be increasingly the limiting factor for Ms. Stargratt. Although neck and back pain persisted, it was not as debilitating as in the weeks following the accident. Ms. Stargratt was mobile, and able to function with the assistance of her family.

The neurological evidence, especially that of Dr. Chen is that dystonia, in its natural course will usually worsen over time. While I have found that the motor vehicle accident was a significant factor in worsening or hastening Ms. Stargratt's tremors, I have not accepted the theory that the accident itself caused the dystonia.

I find it credible that at some point Ms. Stargratt may reach or have reached, the plateau where her post-accident condition approached her condition, as it would have been, notwithstanding the accident. At such a point, I believe, neither caregiver, nor attendant care need could be seen as arising from the accident. Although her pain and discomfort clearly continued, pain is compensable under the Schedule, only to the degree that it impacts on her ability to care for her daughter and provide for herself.

In my view, that point had definitely been reached by July 2000, when Dr. McCall filed his report.

Dr. McCall expresses some of the difficulty in determining where such a point might lie:

This is a complex case and it is unfair to write this girl off as a complainer with little evidence of physical disability. She has a seriously disabling neurological condition with continuous neck, left shoulder and spinal pain, which, I believe, has developed as a direct result of the trauma she suffered in the motor vehicle accident of 1998. Finally, I do not believe that further investigation of the musculoskeletal complaints would be in any way helpful.

In any event, the Schedule provides that both the caregiver and attendant care benefits are payable only to a maximum of 104 weeks. Since this is not a case of catastrophic impairment, that limit holds for Ms. Stargratt under both heads of her claim.

Although I do not underestimate the challenges of raising children, I note that the nature of Ms. Stargratt's caregiving obligation gradually changed as Alexandra grew older, and no longer required to be carried, diapered, changed or spoon-fed. As noted, Ms. Stargratt's caregiving obligations to Noah, her son, may well have continued, but do not form part of her accident-related claim.

From September 1, 2000, I find that Ms. Stargratt is entitled to caregiver expenses for 36 hours of child care per week, plus two hours of attendant care. Ms. Stargratt is also entitled to have the childcare expenses for nursery school reimbursed by Zurich as a caregiver expense.

I find that Ms. Stargratt is entitled to the caregiver and attendant care services at this level until the 104-week mark.

Ms. Stargratt submitted that it was appropriate that the caregiver services be compensated at least the minimum wage level, which would be about $7 per hour. I find that this would be an appropriate level to compensate the nonprofessional care that she received from her family.

On all the evidence, the two-year mark is an appropriate point to find that her entitlement to these benefits ended.

Ms. Stargratt also claimed for physiotherapy. Ms. Linda Robidoux of the Sudbury Physio centre, submitted a treatment plan on behalf of Ms. Stargratt on December 15, 1998. Ms. Robidoux, the examining physiotherapist noted that:

Ms. D'Angelo-Stargratt seems to be suffering chronic cervical spine dysfunction which is muscular in origin. She also seems to be suffering from rotator cuff tendinitis and dysfunction of the left tricep muscle.

Ms. Robidoux concluded:

In the short term, I expect that Ms. D'Angelo-Stargratt's pain will decrease with treatment and that she will slowly increase the pain free active range of motion of the upper extremity and therefore will be able to utilize her upper left extremity.

Ms. Stargratt did not have the opportunity to "increase the pain-free range of motion." Ms. White of Zurich, in response to the treatment plan, merely sent a letter to Ms. Stargratt, and a copy of Dr. Wardill's I.M.E. I have already commented on some difficulties with Dr. Wardill's opinion on disability.

Upon receipt of Dr. Wardill's opinion, Ms. Robidoux replied by letter on December 29, 1998. She stated:

During my clinical examination of Ms. D'Angelo, I had little to no medical records to review and relied solely on Ms. D'Angelo's description of events and symptoms. Dr. Wardill had Ms. D'Angelo's complete file and history and has concluded that the cervical spine and shoulder symptoms experienced by Ms. D'Angelo are not associated to the motor vehicle accident dated March 14, 1998. I must therefore rely on Dr. Wardill's opinion as to causality.

As a result, it would seem that Ms. D'Angelo's ongoing complaints are not MVA-related, therefore please disregard our treatment plan.

As a consequence, Zurich, in fact, did disregard the treatment plan, notwithstanding the fact that there was medical evidence strongly suggesting that the proposed treatment was both reasonable and necessary. While Ms. Robidoux's extreme deference to Dr. Wardill may be indicative of professional respect, it does not confer upon her a right to unilaterally withdraw a claim for treatment made on behalf of Ms. Stargratt.

The Schedule provides a procedure for the acceptance and rejection of claims made by an insured. If Ms. Stargratt's request for physiotherapy was not to be accepted, she had a right to a DAC. By being left in limbo, she lost that important right.

Based on Dr. John McCall's report, which indicated that there was lingering pain for quite awhile after the proposed treatment, and Ms. Stargratt's consistent reports of cervical spine and shoulder pain, matters that were to be addressed by the treatment, I find that the proposed physiotherapy was both reasonable and necessary. Given the manner in which Zurich aborted the treatment, Ms. Stargratt should be paid the full estimated cost of the physiotherapy treatment, without deduction for any potential collateral coverage.

At the conclusion of the first days of hearing in March 2001, after having heard much of the Applicant's evidence, including expert medical testimony, I put the parties on notice that, a special award, pursuant to subsection 282(1) of the Insurance Act, was potentially at issue in this matter.

At this point in the hearing, Zurich had not called any witnesses nor presented any evidence. In fact the Insurer was scheduled to present its case in Sudbury, some three months hence, along with the balance of the Applicant's witnesses.

A special award is unlike most other issues that come before an arbitrator. Although a claim for a special award can be advanced by an applicant, the Act provides that an arbitrator shall award a special award, if there has been a finding that benefits have been unreasonably withheld. The only discretion remaining to the arbitrator in such a case is the amount of the special award. In Leitgeb & Allstate, (OIC P-012407, November 16, 1995), Director's Delegate Draper stated:

I agree with the arbitration decisions that have held that a special award is not a claim to be advanced like a claim for benefits . . . Rather, it is a statutory authority, or a direction, given to the arbitrator to make an award if he or she finds that, not only are benefits owing to the applicant, but that they were unreasonably withheld or delayed by the insurer.

The Director's Delegate goes on to state that an arbitrator can order a special award "subject to the principles of fundamental justice and fairness, which probably require some notice to the insurer that a special award is being considered."

In this matter, Zurich had some three months to investigate further, call witnesses and make submissions. It had ample opportunity to call the adjuster, and any other witnesses with information bearing on the decision not to pay caregiver, attendant care or further medical benefits to Ms. Stargratt, had it been considered appropriate or necessary. I find that the Insurer had adequate notice of the special award to permit it to respond fairly to the issue.

I have found that Ms. Stargratt was entitled to caregiving, attendant care, and physiotherapy. Patently, Zurich withheld the benefits. It is not necessary to consider whether Zurich's representatives held an animus towards Ms. Stargratt, or to allege that Zurich dealt with her in bad faith. It is sufficient only to find that Zurich did not act reasonably in withholding benefits.

As Arbitrator Palmer noted in Plowright and Wellington (OIC A-003985, October 25, 1993): "Unreasonable behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate."

Arbitrator Palmer went on to characterize the obligation of an insurer, in dealing with an insured as; "to work as a partner with the Applicant, his family doctor and other health care professionals in the rehabilitation of this insured person."

Ms. Stargratt was prompt in advising Zurich of her condition and her difficulty in caring for herself and her baby. She did not hide the fact of her pre-existing disability.

Her doctor, Dr. Bloomfield, issued the required forms, clearly indicating that Ms. Stargratt could not care for her baby. On April 3, 1998, Ms. Starrgartt faxed a letter to Ms. White, Zurich's representative. She wrote:

I was given medication to kill the pain. The effect of the medication has been that I am not capable of caring for my daughter. I am in need of a caregiver to look after my daughter and do household chores as I am unable.

She concluded:

As it is now, I have moved back to my parent's home. And my apartment is empty. My husband works out of town, so I am alone.

On the accident benefit application dated April 9, 1998, Ms. Stargartt wrote:

I could not take care of my child, head and neck hurt, I am unable to pick her up do chores or anything that involves lifting may arm. Tremor in left hand is so much worse since I was hit. Can't do things with my child.

Zurich's response was to interview Ms. Stargratt, and obtain her admission that she had not "incurred" any care expenses. It then used this "admission" as the basis of its notice of assessment, essentially denying benefits.

Zurich did not assist Ms. Stargratt in obtaining caregiver assistance that was acceptable to them, nor did it provide assistance, such as seed funding, or an explanation of how the caregiving time could have been billed in order to be accepted as "incurred" by the Insurer.

Following that Zurich scheduled an insurer's medical examination with Dr. Wardill, and, apparently, refused to take any action on the claim until it had heard from him.

The letter from Mr. Kerr, Ms. Stargratt's lawyer, dated June 9, 1998, suggested that this examination was rescheduled several times due to Dr. Wardill's unavailability. No interim care benefits were paid pending, notwithstanding Zurich's statement that Ms. Stargratt qualified for care benefits. Nor was an alternative examiner considered, when Dr. Wardill turned out to be non-available.

Dr. Wardill's report, once issued, gave Zurich the ammunition that it needed to provide a blanket refusal to Ms. Stargratt's claims.

As noted, the report contains several serious weaknesses, not the least of which was that it was largely based on Dr. Wardill's preconceived notions of the expected recovery time for Ms. Stargratt.

Another weakness that should have been quite obvious to any reader of his report, however, was Dr. Wardill's conclusion. He stated: "I have difficulty in attributing incapacity entirely due to her motor vehicle accident." As Zurich should have known, this is not the test applicable to causation in the realm of accident benefits. His further comment that: "this lady has got a complex neurological problem for which I have no explanation and do not claim expertise" should have also set the alarm bells ringing at Zurich.

Ms. Stargratt's early communications with the Insurer specifically mentioned that her tremors had worsened following the accident. In spite of this information and Dr. Wardill's reference to the "complex neurological problem" Zurich did not attempt to get a neurological opinion until January 26, 2001, when Dr. Chen examined Ms. Stargratt.

Without any neurological evidence, Zurich chose to disregard that part of Ms. Stargratt's claim.

In the meantime, Zurich used Dr. Wardill's opinion as to causation as its all-purpose excuse for not paying benefits.

I find that, if Zurich had acted reasonably, and consistently with its obligations as a first-party insurer to Ms. Stargratt, it would have assisted a policy-holder in obvious distress. Notwithstanding that the Insurer's position on "incurred" expenses was not supported, it used its own "in house" rules as a roadblock to any claim by Ms. Stargratt.

Instead of blithely stating that the caregiving expenses were disallowed because they were not "incurred," it should, at the very least, have assisted Ms. Stargratt in "incurring" those expenses that it agreed she was entitled to claim.

As noted, Ms. Stargratt's symptoms present as a complex medical problem. This should have been apparent to Zurich, and should have justified more careful investigation of her claim. At the very least, Dr. Wardill's comments about his lack of qualifications to comment on a large part of her symptoms should have alerted Zurich to the potential complexity of her claim. Instead it used the balance of a flawed report to deny virtually all assistance.

Ms. Stargratt's pre-accident disability made her a potential "thin skull" claimant. Zurich, however, appeared to treat her prior handicap as a bar to any further claim. If anything, this impression was reinforced at the hearing by the insurer's decision to confront most expert witnesses with the decision of the Social Assistance Review Board confirming that Ms. Stargratt was entitled to assistance as a disabled person, without explaining the significant differences between the test for disability under social assistance, with their emphasis on employability, rather than the ability to care for oneself or others.

Ms. Stargratt, in the first part of the hearing produced prima facie evidence that would support a special award. If her testimony, her husband's testimony, and that of Drs. McCall and Consky were to be believed, and not contradicted, it would be open to make a finding that Zurich had unreasonably withheld payments.

Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63 stated:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

Lord Mansfield's dictum has been interpreted by a long line of decisions recognizing what has been termed as a shifting of the secondary, or evidential burden of proof. This has been also referred to by some commentators as a tactical shifting of the burden of proof.

The effect has been that where matters are in the particular knowledge of another, and the claimant has adduced evidence, the defendant risks an adverse inference in the absence of evidence to the contrary. Sopinka J., although preferring an analysis based on inference rather than "burden of proof" agreed with the ultimate effect in Farrell v. Snell 1990 CanLII 70 (SCC), [1990] 2 S.C.R., 311, a decision of the Supreme Court of Canada.

In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.

I have found that Ms. Stargratt was entitled to caregiving and attendant care benefits, that the Insurer was aware of her needs and the seriousness of her situation, that the Insurer acknowledged her early entitlement to caregiving, and that even acknowledged benefits were withheld on grounds that I have found to be spurious, at best.

Zurich did not choose to call any evidence on this issue, nor to call the claims adjuster nor any other internal witness to dispel the impression that the Insurer may have acted unreasonably in withholding benefits. This information regarding the decision not to pay Ms. Stargratt's claim was entirely within the knowledge and control of Zurich.

Based on the evidence heard from Ms. Stargratt and her witnesses, the apparent lack of consideration by Zurich of Ms. Stargratt's unusual and vulnerable state at the time of the accident, the hardening of Zurich's position even as more evidence became available, and in the absence of any satisfactory explanation from the Insurer, I find that Zurich unreasonably withheld benefits from Ms. Stargratt.

I find, as well, that the actions of Zurich in encouraging Sudbury Physiotherapy to withdraw its treatment plan lead to the same conclusion with regard to that benefit claim.

I, therefore, award Ms. Stargratt a special award of 50 percent of the outstanding benefits, including interest with regard to the attendant care, caregiver and physiotherapy benefits. This is the maximum possible award, and it reflects the seriousness of Zurich's actions in failing to deal reasonably and promptly with its own vulnerable insured.

EXPENSES:

Given Ms. Stargratt's success on all issues in the arbitration, I award her expenses in this matter.

October 4, 2001

John Wilson Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 145

FSCO A99-000521

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LUCIA STARGRATT

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. Stargratt is entitled to Caregiver expenses.

2. Ms. Stargratt is entitled to Attendant Care expenses.

3. Ms. Stargratt is entitled to a medical benefit for the physiotherapy treatment plan filed by Sudbury Physio Centre.

4. Ms. Stargratt is entitled to a special award of 50 percent of the outstanding benefits.

October 4, 2001

John Wilson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.