Jamna Joshi v. ING Halifax Insurance Company, 2002 ONFSCDRS 121

Financial Services Commission of Ontario

Neutral Citation: 2002 ONFSCDRS 121

FSCO A02-000140

BETWEEN:

JAMNA JOSHI

Applicant

and

ING HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

July 18, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Helen Fotinos for Mrs. Joshi

Doug Wallace for ING Halifax Insurance Company

Issues:

The Applicant, Jamna Joshi, was injured in a motor vehicle accident on June 7, 2001. She applied for and received statutory accident benefits from ING Halifax Insurance Company ("ING"), payable under the Schedule.¹ Mrs. Joshi seeks payment for services provided by Ms. Carol Hawkins, a rehabilitation consultant/case manager. The parties were unable to resolve their dispute at mediation and Mrs. Joshi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mrs. Joshi was seriously injured in a car accident on June 7, 2001. The precise nature of her injuries are not in issue in this arbitration. The disputed issue was identified and agreed upon at the pre-hearing conference:

1. Were the services provided by Rutherford Rehabilitation the services of a case manager as defined in section 2 of the Schedule and recoverable under section 17 or rehabilitation services rendered pursuant to subsection 15(2)?

Result:

1. Some of the services provided by Rutherford Rehabilitation were those of a case manager as defined in section 2 of the Schedule and some were rehabilitation services rendered pursuant to subsection 15(2).

Background:

Mrs. Joshi called one witness, Ms. Carol Hawkins of Rutherford Rehabilitation, to testify about the services she provided. No other evidence was led by either party. A brief of agreed documents was entered, largely correspondence between the adjuster for ING and Ms. Hawkins or Mrs. Joshi's representative.

For the purposes of this decision, I have assumed, but not decided, the following background facts.

Mrs. Joshi was seriously injured in the automobile accident and was hospitalized from the date of the accident until October 11, 2001. As such, she was unable to perform some of her pre-accident activities of daily living. In particular, Mrs. Joshi was unable to perform her caregiving and homemaking tasks.

Prior to the accident, Mrs. Joshi was not employed outside the home, but was an active homemaker and primary caregiver to her family. In particular, she was the primary caregiver for her 12 year old son, Jayesh, who suffers from an undisclosed, congenital condition that has left him with an open wound in need of dressing two to three times per day. Mrs. Joshi performed this task herself or ensured that her son performed it properly. It was essential to her son's health and well being that Jayesh's wound be attended to daily and Mrs. Joshi's inability to perform this task was an issue of some concern for the family.

Ms. Hawkins of Rutherford Rehabilitation was retained by Mr. Joshi, likely on the referral of Mrs. Joshi's representative.

Evidence:

On July 23, 2001, Mrs. Joshi's representative wrote to an adjuster assigned to Mrs. Joshi to request that the case manager appointed by ING have no further contact with Mrs. Joshi and to advise that Mrs. Joshi would be retaining her own rehabilitation consultant. On August 8, 2001, the adjuster wrote to Mrs. Joshi's representative acknowledging the July 23rd letter and putting Mrs. Joshi on notice that unless and until Mrs. Joshi was declared to have suffered a catastrophic impairment, no caseworker appointed by her would be compensable under the Schedule and ING would not pay for such services.

Carol Hawkins testified that she is a self-employed rehabilitation consultant and case manager. She has obtained a B.A. in Social Development Studies and a B.S.W. She is also a Certified Rehabilitation Counsellor. She is not an occupational therapist or a nurse and has no other medical qualifications. She described her role as maximising the potential of her client, whatever that might be. Often that would involve returning the client to the workplace or their other pre-accident activities. She testified that her practice includes many clients such as Mrs. Joshi who need assistance in returning to as normal a life as possible.

Ms. Hawkins testified that while there are parallels between case management and the services she provided to the Joshi family, they are different. She described the main difference between case management and the services provided to Mrs. Joshi. As a case manager, she testified she would work as the coordinating member of a treatment team. The case manager works with the team to establish treatment goals and ensure that the established goals are met. Ms. Hawkins testified that, in contrast to typical case management, the services provided to someone like Mrs. Joshi are more time limited and defined. There is no treatment team and no case conference.

Ms. Hawkins met with Mrs. Joshi at the hospital on July 23. She testified that she understood that Mrs. Joshi had been seriously injured. She had suffered multiple fractures and was in considerable pain at that time. Ms. Hawkins testified that she understood that Mrs. Joshi would be in the hospital for an extended period.

On July 25 Ms. Hawkins met the Joshi family again to discuss their needs. Ms. Hawkins testified that the Joshi's most immediate need was for someone to provide care for Jayesh in Mrs. Joshi's absence. To that end, she contacted the local community care access centre (CCSA) on July 27, to see what services it might provide at public expense. She was told that the CCSA had done all it could in training the Joshi family in the care of Jayesh and would do no more.

On August 1, Ms. Hawkins contacted the Insurer to clarify Mrs. Joshi's status as a caregiver under the Schedule.

On August 2, Ms. Hawkins met with the Joshi family to further discuss Jayesh's needs and to discuss the accident benefit package. Her notes indicate that she was advised that Jayesh was able to clean his wound himself, and what was really required was some skilled supervision. According to the note, Mrs. Joshi felt that a nurse once a day, in the morning, to examine the wound would be sufficient.

On August 3, Ms. Hawkins spoke to both Mrs. Joshi at the hospital and later to Mr. Joshi to update them on what she had been doing.

The Joshi family also needed someone to perform the housekeeping and home-making tasks which Mrs. Joshi had performed. On August 8, Ms. Hawkins began making arrangements for a housekeeper to take care of those needs. Ms. Hawkins also began making arrangements for a nurse to attend to Jayesh's medical needs. Ms. Hawkins contacted an agency and succeeded in retaining the same nurse who had attended to Jayesh's needs in the past, before Mrs. Joshi had been trained in his care. On August 13, Ms. Hawkins confirmed with Mr. Joshi that she had retained a nurse to assist with Jayesh and discussed with him the caregiver benefits available under the Schedule.

On August 14, Ms. Hawkins contacted St. John's Hospital to arrange for Mrs. Joshi's transition to her home. She arranged for an occupational therapist from St. John's Hospital, Ms. Anne MacFarlane, to inspect the Joshi home. Ms. MacFarlane recommended a commode and ramps into the home for Mrs. Joshi as well as the creation of sleeping quarters on the ground floor of the house for her. Ms. Hawkins testified that she apprised Ms. MacFarlane of Mrs. Joshi's situation before the home visit, but did not discuss with her the recommendations she made.

On August 15, Ms. Hawkins updated the Joshi family on her progress with the various tasks she was undertaking on their behalf.

Also on August 15, Mrs. Joshi told Ms. Hawkins that her treatment providers at St. John's Hospital had recommended that she receive massage for her left arm and shoulder. Mrs. Joshi asked for her assistance in accessing treatment and Ms. Hawkins reviewed the OCF-18 with Mrs. Joshi.

On August 17, Ms. Hawkins spoke with the occupational therapist at St. John's Hospital, the Insurer, the massage therapist and the nurse.

On August 20, Ms. Hawkins telephoned the massage therapist and the Insurer.

On August 23, Ms. Hawkins telephoned Mr. Joshi.

On August 27, Ms. Hawkins spoke with Mr. Joshi about the care of Jayesh. On that same date she telephoned a social worker at The Hospital for Sick Children about Jayesh's medical care; as well as the occupational therapist at St. John's Hospital; and spoke with Mr. Joshi again. In early September, Ms. Hawkins was contacted by the nurse about whether she should continue caring for Jayesh.

Ms. Hawkins submitted an invoice to ING on September 4. A cover letter provided the following summary of the services she provided to Mrs. Joshi:

As you are aware, I have been working with the Joshi family in terms of providing them with rehabilitation assistance. Given the seriousness of Mrs. Joshi's injuries and her extended hospital stay, she has been unable to fulfill any of her caregiver duties since the accident. As you are aware, Mrs. Joshi has the responsibility of a son with a disability, and much of my efforts thus far have been on trying to minimize the impact of her absence on her son and family. As well, I have assisted the family with making the appropriate accommodations for Mrs. Joshi's weekend visits home from the hospital.

In its response dated September 21 the adjuster for ING wrote to Ms. Hawkins to confirm that ING would not pay for Ms. Hawkins' services:

From our initial discussion dated August 2nd, we had stated our position to you; the Insurer had previously retained the services of a Rehabilitation Caseworker identified as Heather Potter.

In conversation, we did advise since you had been retained directly by the Joshi family that we could not guarantee any payment. We had asked you to issue your CV and we would issue it to our Principals, Halifax Insurance Company for their review.

As stated in the past, Mrs. Joshi has not sustained a catastrophic injury as a result of this automobile collision. For this reason, the Insurer is not required to pay for a Case Manager.

Ms. Hawkins' notes indicate that on October 5 Ms. MacFarlane contacted her to advise that Mrs. Joshi would be discharged from hospital on October 11, 2001.

Analysis:

In determining the issue before me, I have accepted the evidence of Ms. Hawkins as it relates to the services she provided to Mrs. Joshi and her family. Her view of the distinction between the services of a case manager and the services she provided to her client in this case is, at the end of the day, irrelevant in light of the statutory definition in the Schedule.

While I find that some of the services provided by Ms. Hawkins were those of a case manager as defined in the Schedule and therefore are not compensable (without a determination that Mrs. Joshi had suffered a catastrophic impairment), I find that other services provided by Ms. Hawkins were not the services of a case manager as defined. I conclude, after considering the statutory provisions and the limited evidence, that some of the services provided by Ms. Hawkins are compensable under either subsections 15(2) or 15(5)(l).

The statutory provisions are set out here for convenience:

2. (1) In this Regulation,

"case manager" means a person who provides services related to the coordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit;

15. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.

(2) The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

(5) The rehabilitation benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in subsection (2) for,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person;

(i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person's existing home;

(j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle;

(k) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(l) other goods and services that the insured person requires, except services provided by a case manager.

Section 17 provides for the provision of case management services when an insured person has sustained a catastrophic impairment. It adds nothing to the understanding of the definition of case manager in subsection 2(1).

The use of the term "means" in the definition of case manager is significant. By its use the drafter indicates that the definition is exhaustive. If the thing cannot be found within the definition, it cannot be included even if the thing would customarily be included as akin or analogous to one of the enumerated things. For this reason I find that the definition of case manager only includes the coordination of goods or services for which payment is provided by a medical, rehabilitation or attendant care benefit. If the definition had used the other common drafting term "includes" rather than the definitive "means", it might have been possible to include the coordination of other goods or services provided in the Schedule.

Section 15 provides for the payment of a rehabilitation benefit. Subsections 15(2) and 15(5) describe the scope of the benefit and are drafted in broad language to reflect the intention of the drafter that all reasonable and necessary measures to return an insured person to as normal a life as possible will be compensable. It is drafted to include as many things as possible, with one exception already discussed - paragraph 15(5)(l) - the basket clause that provides for any other good and service that may be required except the services of a case manager. I find that this provision prohibits the payment for case management services as defined, as a rehabilitation expense. Case management services as defined are only available if there has been a determination that the individual has suffered a catastrophic impairment, as provided by section 17.

Accordingly, I agree in part with the submission of ING that in its characterisation of the nature of the services of the case manager, the Schedule utilises broad language - "services related to the coordination of goods or services for which payment is provided." If, for example, the definition ended there, it might be argued that it applies to the coordination of any services under the Schedule. However, as discussed above, the definition goes on to confine its application by referring to particular benefits in the Schedule.

I also agree with ING's submission that the legislature intended to substantially limit an insured person's access to case management services in Bill 59. Nowhere is this made more clear than by its inclusion in the "basket" provision of paragraph 15(5)(l).

Bill 59 may have substantially narrowed the circumstances when the services of a case manager would be compensable. None of that detracts from the quite precise language of the definition in subsection 2(1), however, which I have concluded does not capture the coordination of all goods or services for which payment is provided under the Schedule.

I accept ING's submission that Ms. Hawkins largely coordinated the provision of goods and services for Mrs. Joshi and her family. The question becomes whether the goods or services coordinated by Ms. Hawkins were things for which payment is provided by a medical, rehabilitation or attendant care benefit and, if not, are Ms. Hawkins' services otherwise compensable pursuant to section 15 of the Schedule?

I find that some of the goods and services Ms. Hawkins facilitated were benefits that could have been payable as a medical or rehabilitation benefit. (I have no evidence before me of whether they were paid or not, or if paid, pursuant to what provisions of the Schedule). For example, the in-home assessment (to the extent it was related to the need for home modifications) and the expenses associated with the building of a ramp into the home as well as the creation of a sleeping area for Mrs. Joshi, were all payable as rehabilitation benefits.

On the other hand, the focus of much of what Ms. Hawkins did for Mrs. Joshi was the replacement of Mrs. Joshi's services to her family - as homemaker and primary caregiver for Jayesh. These are benefits specifically provided for in the Schedule. I find that caregiving and housekeeping needs are not medical, rehabilitation or medical care benefits under the Schedule.

Subsection 13(2) describes the scope of the benefit subject to financial limitations set out in subsection 13(3) and 13(4).

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

Assuming without deciding that Mrs. Joshi otherwise met the criteria for entitlement to a caregiver benefit in subsection 13(1), she would be entitled to a caregiver benefit as described in subsection 13(2). If the expenses associated with the care of Jayesh were payable pursuant to this section, then the narrowing of entitlement to case management in Bill 59 as reflected in the language of sections 17 and paragraph 15.(5)(l) would not preclude a finding that Ms. Hawkins' facilitation of the services associated with the caregiver benefit were reasonable and necessary measures to reduce or eliminate the effects of the disability Mrs. Joshi suffered.

The question remains whether or not the facilitation or coordination of services other than medical, rehabilitation or attendant care are compensable under the Schedule. I agree with the submission of Mrs. Joshi that they are, at least theoretically, compensable as rehabilitation expenses pursuant to section 15.

Subsection 15(2) requires the insurer to pay for all reasonable measures undertaken by the insured to eliminate or reduce the effects of a disability. Subsection 15(5) requires the insurer to pay for all the expenses referred to in subsection 15(2) for a list of services including the basket provision of paragraph 15(5)(l) "other goods and services that the insured person requires, except services provided by a case manager." I find that subsections 15(2) and 15(5) are complementary provisions intended to provide for some certainty about the things that ought to be funded by insurers and, at the same time, sufficient flexibility to ensure that all reasonable and necessary measures are provided for. I find that the language of these provisions is cast broadly enough to include, in the appropriate circumstances, the facilitation and coordination of services other than those included in the definition of case manager.

Conclusion:

The parties argued this case as if it were an all or nothing proposition - either the services provided by Ms. Hawkins were those of a case manager and not compensable at all, or services provided for in section 15 and therefore entirely payable by the Insurer.

I have found, based primarily on the definition of case manager, that neither position is sustainable. The services of Ms. Hawkins that related to the coordination of medical, rehabilitation and attendant care benefits are the services of a case manager as defined in the Schedule. The other services provided by Ms. Hawkins which were related to other benefits under the Schedule are not the services of a case manager and I have found are potentially compensable as rehabilitation benefits pursuant to section 15.

I was not provided with sufficient evidence to determine with precision which of the invoiced items would relate to services included in the definition of case manager and which are rehabilitation services. For example, there was no evidence led with respect to some of the telephone calls made to Mrs. Joshi or her husband other than that they were updates. I leave it to the parties to attempt to resolve which of the services provided by Ms. Hawkins are compensable and which are not. I remain seized of this issue if they are unable to resolve it themselves.

EXPENSES:

The parties both seek their expenses. In all of the circumstances I find that Mrs. Joshi is entitled to her reasonable expenses of the arbitration to this point.

August 7, 2002

David Muir

Arbitrator

Neutral Citation: 2002 ONFSCDRS 121

FSCO A02-000140

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JAMNA JOSHI

Applicant

and

ING HALIFAX 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. ING Halifax Insurance Company will pay the reasonable expenses of Mrs. Jamna Joshi.

August 7, 2002

David Muir

Arbitrator

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, 303/98 and 114/00.