Neutral Citation: 2002 ONFSCDRS 169

FSCO A01-000486

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA DA PONTE

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

REASONS FOR DECISION

Before:

Janice Sandomirsky

Heard:

June 24, 25, and 26, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Carlos Rippell for Ms. Da Ponte

Colin S. Jackson for the Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Maria Da Ponte, was injured in a motor vehicle accident on November 8, 1999. She applied for and received statutory accident benefits from the Motor Vehicle Accident Claims Fund ("MVAC"), payable under the Schedule.¹ MVAC denied entitlement to weekly non-earner benefits and the level of attendant care and housekeeping benefits claimed by Ms. Da Ponte. The parties were unable to resolve their disputes through mediation, and Ms. Da Ponte 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. Da Ponte entitled to receive weekly non-earner benefits from May 8, 2000, and ongoing, pursuant to section 12 of the Schedule?

2. What is the quantum for attendant care benefits that Ms. Da Ponte is entitled to, pursuant to section 16 of the Schedule?

3. What is the quantum for housekeeping and home maintenance services that Ms. Da Ponte is entitled to, pursuant to section 22 of the Schedule?

4. Is Ms. Da Ponte entitled to payments for the cost of occupational therapy assessments conducted by Rehabilitation Management Inc. ("RMI"), pursuant to section 24 of the Schedule?

5. Is MVAC liable to pay a special award to Ms. Da Ponte, pursuant to subsection 282(10) of the Insurance Act?

6. Is either party liable to pay the other its expenses of the arbitration hearing, pursuant to section 282(11) of the Insurance Act?

7. Is Ms. Da Ponte entitled to interest on any amounts found to be owing, pursuant to section 46(2) of the Schedule?

Result:

1. Ms. Da Ponte is entitled to receive weekly non-earner benefits, starting from the week of May 8, 2000, and ongoing, pursuant to section 12 of the Schedule. Because Ms. Da Ponte was over the age of 65 at the time of the accident, the quantum of her non-earner benefits is to be calculated in accordance with section 10 of the Schedule.

2. Ms. Da Ponte is entitled to 16 hours of attendant care per week from March 5, 2001 to November 8, 2001, the104 week mark of the date of the accident, pursuant to sections 16 and 18 of the Schedule.

3. Ms. Da Ponte is entitled to $100 per week for housekeeping and home maintenance services, from November 23, 2000 and continuing to November 8, 2001, pursuant to section 22 of the Schedule.

4. Ms. Da Ponte is entitled to payment for the cost of the occupational therapy assessment report from RMI, dated October 31, 2001, in the amount of $1,704.37, pursuant to section 24 of the Schedule.

5. Ms. Da Ponte is entitled to a special award in the amount of $6,000, inclusive of interest, pursuant to subsection 282(10) of the Insurance Act.

6. Ms. Da Ponte is entitled to interest on the amounts owing, for the non-earner benefits, attendant care benefits and housekeeping benefits pursuant to section 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

Background

On November 8, 1999, Ms. Da Ponte was struck by a motor vehicle while crossing the street in front of her house. The accident occurred while she and her sister, Mrs. Cordeiro, were on their way to catch the bus to go to their doctor's office to get a flu shoot. Ms. Da Ponte was 66 years of age at the time of the accident. She was born in Portugal, where she attended school until grade three. She moved to Canada with her sister in 1991.

Ms. Da Ponte suffered a compound comminuted fracture of her right leg. She was taken to the Toronto Western Hospital by ambulance where Dr. Ogilvie-Harris, the orthopaedic surgeon-on-call, performed emergency surgery. Ms. Da Ponte remained in the hospital until November 23, when she was transferred to the Riverdale Rehabilitation Centre, and then the Hillcrest Rehabilitation Centre, for treatment. Altogether, she spent more than four months in institutional care before returning home on March 22, 2000.

MVAC arranged for Concentra Managed Care Services to assess Ms. Da Ponte's needs soon after she returned home from the hospital. Ms. Audrey D'Souza met with Ms. Da Ponte in her home on April 13, 2000, and made recommendations regarding necessary assistive devices, attendant care and housekeeping needs. Ms. D'Souza reported on Ms. Da Ponte's condition on a monthly basis until March 2001, when Ms. Da Ponte arranged for RMI to provide these services. MVAC supplied all the assistive devices recommended in Ms. D'Souza's reports. It also paid for attendant care and housekeeping expenses, however, the late payment of these benefits is the basis for Ms. Da Ponte's claim to a special award.

Ms. Da Ponte claims that her condition did not improve significantly after the accident, and she has been unable to resume her normal pre-accident activities and remains entirely dependent on her sister and nephew for her personal care. She claims entitlement to non-earner benefits. She also claims that she is entitled to additional attendant care and housekeeping benefits.

MVAC did not dispute that Ms. Da Ponte was seriously injured in the accident and that she was entitled to attendant care and housekeeping benefits. It took the position, however, that Ms. Da Ponte was not as functionally limited as she claims, and that her health problems prior to the accident contributed to her level of restricted mobility. MVAC denied entitlement to non-earner benefits.

The Issues in Dispute

Issue #1: Entitlement to non-earner benefits

At the time of the accident, Ms. Da Ponte lived with her sister and nephew, Jose Cordeiro, in a small two storey, three bedroom house near Dufferin Street and St. Clair Avenue in Toronto. Her sister and nephew worked outside of the home, and she took care of all the housekeeping duties. She claims that since the accident she has been unable to resume any of her pre-accident activities and is entitled to non-earner benefits.

Section 12 of the Schedule provides that an insured person who sustains an impairment as a result of an accident is entitled to a non-earner benefit if she "suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. "

Section 2(4) of the Schedule defines "complete inability to carry on a normal life" to mean that,

as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

The case law establishes that the phrase "engaging in" means more than isolated post-accident attempts to perform activities that an applicant was able to perform prior to the accident.² The manner in which an activity is performed, or the quality of the performance, must also be considered.³ If the degree to which an individual can perform an activity is sufficiently restricted, it cannot be said that they are truly "engaging in" the activity. The activity must be viewed as a whole and should not be broken down into its constituent parts.⁴ An applicant who is merely "going through the motions" cannot be said to be "engaging in" an activity.⁵

In cases where pain is the primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequently, is such that the individual is practically prevented from engaging in those activities.⁶

The dispute in this case is whether Ms. Da Ponte's impairment continuously prevented her from engaging in substantially all of the activities in which she was ordinarily engaged before the accident. After reviewing the medical reports and occupational therapist reports, and considering the oral evidence from Ms. Da Ponte, her sister and nephew, I find that she is entitled to non-earner benefits for the reasons that follow.

There was no dispute that, prior to the accident, Ms. Da Ponte was fully responsible for all the housekeeping activities. Her daily routine began at 4:45 a.m., when she got up to make breakfast and prepare lunch for Jose. She then did all the housecleaning, including making the beds, the laundry, cleaning the bathrooms, sweeping and dusting. She also did all the grocery shopping for the family, and all the meal preparation, including a full dinner in the evening. She walked to the grocery store and home again with the groceries in a buggy. Sometimes Jose went with her if she had heavy loads to carry. In the summer, Ms. Da Ponte looked after the garden and the exterior of the house.

I find that after the accident Ms. Da Ponte was unable to resume her household duties in any substantial way because of her limited mobility. She was dependent on a walker or cane, and/or the assistance of her sister or nephew, to change positions and to walk. She could put very little weight on her injured leg and felt very unstable. Ms. Da Ponte was capable of walking for five or six minutes before experiencing too much pain and exhaustion and feeling the need to sit down. She was able to assist her sister with some household tasks in very small ways, such as chopping vegetables and folding small pieces of clothing from the laundry. Both tasks were performed on her lap while sitting.

Prior to the accident, Ms. Da Ponte attended mass every evening. Since the accident she rarely attended church and chose instead to take communion at home once a week. Although Jose offered to take his aunt to church, Ms. Da Ponte felt too unwell to participate in the service and too embarrassed about the fact that she was unable to kneel down. She stated that she "did not want people to see me like this."

MVAC disputed Ms. Da Ponte's claim to non-earner benefits on the basis of the evidence that she had a pre-existing back problem. MVAC referred to the medical report from Dr. J. Uddin, a rheumatologist, who examined Ms. Da Ponte because of complaints of back pain one month before the accident. Dr. Uddin diagnosed osteoporosis and prescribed physiotherapy and medication. He noted in his October 1, 1999 report that Ms. Da Ponte could not negotiate stairs, and complained of pain in the back, neck, shoulder and thighs.

I find that, although there was evidence of a pre-existing condition, the motor vehicle accident was the significant factor contributing to the level of disability after the accident. This finding is supported by the medical evidence from Dr. Ogilvie-Harris, who continued to treat Ms. Da Ponte after the accident. It was his opinion that she suffered from a substantial limitation of function because of her ongoing pain, difficulty in standing and poor balance. In a report dated November 23, 2001, Dr. Ogilvie-Harris summarized his findings as follows:

Based on my ongoing knowledge of this lady, I feel that she has sustained a significant injury to her right lower extremity. She is left with ongoing swelling. She is left with significant restriction of movement in the ankle, subtalar joint and midtarsal joint. She is left with chronic pain in the right lower extremity that affects all aspects of her life.

In view of the ongoing pain and limited ability to stand, she needs help with her personal hygiene. She will be unsafe, for example, to be unsupervised in a shower or bathtub. She has difficulty in doing such activities as cutting her toe nails. Sometimes she has trouble dressing as balance is required. She has significant limitations in her mobility and her ability to walk and get around. As a result of this, she has lost her independence.

She is only able to carry out the lightest of household tasks, essentially from a sedentary position. This therefore, limits her ability to cook or clean or do laundry or any of the other usual household activities.

Because of her chronic pain and limited mobility, her social and recreational activities have been substantially curtailed.

This therefore, affects all or most of the activities of a normal life. She is not able to look after herself independently. She does not have independent mobility. She is not able to carry out her household and domestic chores. In my opinion, therefore, this represents a complete inability to carry out a normal life.

MVAC also relied on the reports from Dr. E.R. Bogoch, the orthopaedic surgeon who it retained to perform an insurer examination. In a report dated July 25, 2001, Dr. Bogoch stated that, in his opinion, there was no evidence to support Ms. Da Ponte's apparent inability to carry on activities of daily living. Dr. Bogoch found that Ms. Da Ponte was profoundly pain focussed and unable to adapt to her impairment and disability. It was his view that, with appropriate assistive devices, adaptive behaviours and occupational therapy training, she should be able to adapt to her impairments.

Dr. Bogoch appeared to revise his initial assessment, however, after reviewing Ms. Da Ponte's x-rays from the date of the accident to July 2001. In a follow-up report dated January 29, 2002, he stated that he found two problems that could explain Ms. Da Ponte's persistent pain: a non-union of the fibular fracture; and, post traumatic osteoarthritis of the ankle joint. Dr. Bogoch concluded that these problems would definitely account for the profound impairment of the use of her right ankle and foot. He also confirmed his earlier opinion, however, that the upper limb functions Ms. Da Ponte felt unable to perform could not be linked to the injury to the right leg.

I find that the evidence from Ms. D'Souza also supports Ms. Da Ponte's claim to non-earner benefits. In her first report, Ms. D'Souza stated that Ms. Da Ponte was temporarily suffering an inability to perform her pre-accident activities of normal living because of her limited weight bearing on her lower right extremity. She noted that Ms. Da Ponte was ambulating with the use of a walker; was unable to independently climb stairs without assistance; was unable to sit and stand without the support of the walker; had difficulty getting into bed; needed assistance to transfer to a bath bench; was unable to stoop, bend, lift and carry any items; needed assistance with lower body dressing; and was unable to resume her pre-accident household responsibilities.

Ms. D'Souza reported that she saw minimal progress in Ms. Da Ponte's condition, and that, in fact, she began to see a deterioration in the early part of 2001. At the hearing, Ms. D'Souza confirmed that, in her opinion, Ms. Da Ponte was essentially unable to do any activity independently, and was prevented from engaging in the activities she performed before the accident.

I find that, although Ms. Da Ponte may have been capable of doing a little more, and could assist her sister with some small aspects of the homemaking chores, she was not able to resume in any substantial way her pre-accident activities of homemaker. I also find that, although Ms. Da Ponte suffered with a back problem for which she underwent treatment prior to the accident, the accident on November 8, 1999 was the significant factor contributing to the level of impairment that prevented her from engaging in substantially all the activities in which she normally engaged before the accident. As a result, I find that she is entitled to non-earner benefits beginning on May 8, 2000, as provided for in section 12 of the Schedule. In light of the fact that Ms. Da Ponte was over 65 years old at the time of the accident, the calculation of the amount of those benefits is subject to section 10 of the Schedule.

Issue #2: Quantum of attendant care benefits

Ms. Da Ponte claims entitlement to additional attendant care benefits. She relied on the reports from RMI in support of this claim. MVAC relied on the monthly reports from Ms. D'Souza in determining Ms. Da Ponte's attendant care needs. I find that the evidence supports a finding that it was reasonable and necessary for Ms. Da Ponte to have six additional hours per week of attendant care to assist with meal preparation for the following reasons.

Ms. Da Ponte was completely independent in her self care prior to the accident. After the accident, she became entirely dependent on her sister, nephew and neighbours for assistance with her mobility, use of the toilet, dressing, bathing, grooming and meals.

Prior to the accident, Mrs. Cordeiro, who is nine years younger than her sister, was employed outside the home as a house cleaner. She left that work after the accident and assumed all of Ms. Da Ponte's housekeeping work and attended to her personal care.

Ms. D'Souza initially recommended 13 hours of attendant care. Ms. D'Souza's reports and testimony confirm that Ms. Da Ponte's condition did not improve to any great extent. In October 2000, Ms. D'Souza reported that Dr. Ogilvie-Harris advised Ms. Da Ponte that there had been no healing of her fracture, which discouraged her from attempting to walk more and engage in other activities.

In her November 2000 report, Ms. D'Souza recommended transferring six hours a week for meal preparation from attendant care to housekeeping. The change was based on her finding that Ms. Da Ponte was partially able to engage in meal preparation by accessing the fridge and microwave if left alone. However, Ms. D'Souza also noted that Ms. Da Ponte was limited from reaching, lifting and carrying, so this capacity was only sufficient to prepare a light meal like a sandwich.

Ms. D'Souza's last assessment was in March 2001. At that point she recommended 10 hours of attendant care. The decrease in hours reflected, in part, Ms. D'Souza's decision to transfer meal preparation from attendant care to housekeeping.

Ms. Da Ponte's first assessment by Ms. Jennifer Ackland from RMI was also in March 2001. Ms. Ackland's report was reviewed by Ms. D'Souza. It was Ms. D'Souza's opinion that the assistance allotted by Ms. Ackland for bathing, dressing, stair climbing, serving meals and hygiene tasks was reasonable, given the deteriorating condition of Ms. Da Ponte's right leg fracture and resulting deconditioning.

Ms. D'Souza noted that the main difference between her assessment and Ms. Ackland's assessment in March 2001 appeared in section 2, where Ms. Ackland increased the level of assistance allotted for meal preparation, whereas Ms. D'Souza had moved meal preparation to housekeeping. Ms. D'Souza stated that, although she acknowledged Ms. Da Ponte's need for assistance with meal preparation, she decided to include it in housekeeping because Ms. Da Ponte was eating the same meals as her sister and nephew, and because Ms. Da Ponte was partially able to assist with meal preparation activities while sitting.

I find that Ms. D'Souza's assessment of Ms. Da Ponte's attendant care needs in March 2001 was not significantly different from Ms. Ackland's assessment, except for the decision to move the meal preparation to housekeeping. I find that Ms. Da Ponte's attendant care needs were reasonably and accurately reflected in Ms. D'Souza's reports. There was no dispute that Ms. Da Ponte needed assistance with her meals. As a result, I find that it was appropriate to include some meal assistance in attendant care, and that the six hours a week identified by Ms. D'Souza was a reasonable allocation for that activity.

Ms. Ellen Lipkus from RMI assessed Ms. Da Ponte in October 2001. It was her evidence that Ms. Da Ponte's physical capabilities were consistent between March and October 2001.

I find, therefore, that Ms. Da Ponte was entitled to the 10 hours a week in attendant care allocated in Ms. D'Souza's Form 1 in March 2001, plus six hours a week for assistance with meals, for a total of 16 hours per week as of March 5, 2001, and continuing until 104 weeks after the date of the accident.

Issue #3: Quantum of Housekeeping Benefits

Ms. Da Ponte claimed that she was entitled to $100 per week for housekeeping expenses. MVAC paid her for six hours a week at a rate of $10 an hour for housekeeping on the basis of Ms. D'Souza's recommendation.

Section 22 of the Schedule provides that an insured person is entitled to "reasonable and necessary additional expenses" incurred as a result of an accident for housekeeping and home maintenance services "if, as a result of an accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident." I find that Ms. Da Ponte was entitled to the maximum of $100 per week payable under this section for housekeeping services for the following reasons.⁷

I find that Ms. Da Ponte performed all the housekeeping tasks before the accident and was unable to perform those tasks in any substantial way after the accident. Ms. Da Ponte's sister and nephew assumed the housekeeping after the accident. Mrs. Cordeiro quit her house cleaning job to assume these duties.

Ms. D'Souza's recommendation of six hours of housekeeping assistance per week was based on the fact that Ms. Da Ponte was primarily responsible for all the housework pre-accident. There was no dispute that in the November 23, 2000 Form 1 report, Ms. Da Souza recommended an increase in housekeeping assistance to 10-12 hours per week, but that increase was never paid to Ms. Da Ponte.

I find that Ms. D'Souza's recommendation for 10-12 hours of housekeeping a week, which is approximately one and a half hours per day, is a reasonable estimate of the amount of time it would take to do all the housekeeping tasks performed by Ms. Da Ponte prior to the accident.

MVAC paid the housekeeping expense at $10 an hour and this rate of pay was not challenged. Therefore, I find that Ms. Da Ponte was entitled to the maximum of $100 per week for housekeeping expenses during the period that benefits were payable.

Ms. Da Ponte raised an issue about the time period during which the housekeeping benefits were payable. She noted that section 22(3) provides that no payment is required for housekeeping expenses "incurred more than 104 weeks after the onset of the disability." In this case, MVAC began paying benefits in April 2000, just after Ms. Da Ponte returned from the hospital. It terminated the benefits in November 2001, 104 weeks after the date of the accident. Ms. Da Ponte argued that the onset of disability in this case began after she returned home from the hospital and, therefore, she was entitled to 104 weeks of benefits from that date and not from the date of the accident.

In support of this argument, Ms. Da Ponte referred to the discussion of statutory interpretation in Wright and Allstate Insurance Company of Canada (FSCO A97-001633, August 31, 1998) and argued that the term "onset of the disability" must be read in its entire context and "in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." She submitted that it did not make sense to interpret the term "onset of disability" from the date of the accident, when in fact she was only disabled from performing housekeeping activities after she returned home from the hospital. She argued that it was unfair to preclude her from entitlement to housekeeping benefits because the seriousness of her injury required her to stay in the hospital for four and a half months after the accident. In her view, it was the intent of the legislature to cap the housekeeping benefits at $10,400, rather than put a time limit on benefit entitlement.

I agree with the Insurer's position on this point. I find that the grammatical and ordinary meaning of the term "onset of disability" is the date of the accident. The need to maintain the home exists even if the person is not living in the home at that time. The housekeeping needs may be different when the person is in the home, but, whether the person is living in the home or not, the insured person is unable to perform the housekeeping and home maintenance services he or she normally performed before the accident. Therefore, I find that Ms. Da Ponte was entitled to housekeeping benefits from November 23, 2000, up to104 weeks from the date of the accident.

Issue #4: Cost of the assessment by RMI

Ms. Da Ponte claims that she is entitled to the costs of the RMI assessments pursuant to section 24 of the Schedule. That section requires the insurer to pay for reasonable expenses related to examinations undertaken for the purposes of this Regulation.

Ms. Da Ponte argued that, given that MVAC paid for the same services provided by Ms. D'Souza for a year prior to receiving the report from RMI, it appeared that the dispute was over her right to choose the service provider rather than the actual necessity of the assessment. MVAC took no issue with Ms. Da Ponte's right to select her own service provider, but argued that a consideration of the timing of the assessment was critical. MVAC submitted that, in light of the fact that the service was being provided by Ms. D'Souza, there was no reason to have Ms. Ackland perform a second assessment a few days later. MVAC had no quarrel with the timing of the October 2001 assessment by Ms. Lipkus, but took the position that the amount charged for the assessment was excessive. The account for the March 2001 assessment of attendant care need from Ms. Ackland was for $1,104.08. The account for the October 2001 occupational therapist report from Ms. Lipkus was for $1,704.37.

I find that Ms. Da Ponte is entitled to payment for the report from Ms. Lipkus, but that she is not entitled to payment for the report from Ms. Ackland. I find that it was not reasonable to have two assessments performed within days of each other. Ms. Ackland reported on Ms. Da Ponte's attendant care needs a few days after the same assessment was performed by Ms. D'Souza. Ms. Ackland testified that she was unaware that Ms. D'Souza had just performed an attendant care assessment. As noted, there was little significant difference in the two assessments. As a result, I find that the cost of Ms. Ackland's assessment was not a reasonable expense.

I find that Ms. Lipkus' assessment in October 2001 was reasonable given that there had been no assessments since March 2001. MVAC argued that the cost of that assessment was excessive, however, it provided no evidence to challenge the amount charged by Ms. Lipkus. As a result, I accept that the cost of the assessment represented a reasonable expense.

Issue #5: Special Award

Ms. Da Ponte also claimed that MVAC is liable to pay a special award in this case because it unreasonably delayed the payment of her attendant care and housekeeping benefits. Section 282(10) of the Insurance Act gives an arbitrator the discretion to order a lump sum payment of up to 50 per cent of the award if an arbitrator finds that an insurer has unreasonably withheld or delayed payments.

While a special award may be a sanction for inappropriate conduct by an insurer, it is not contingent upon finding bad faith, or the commission of an actionable wrong by the insurer. All that is required is an unreasonable withholding of payments that are due to the insured. As noted by Arbitrator Palmer Plowright and Wellington Insurance Company (OIC A-003985, October 29, 1993): "Unreasonable behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, impudent, stubborn, inflexible, unyielding or immoderate." All of these definitions express the common sense of going beyond the limits of what is reasonable or a failure to be guided by reason. An unreasonable action is neither fair nor moderate, nor arising out of sound judgement.

An insurer has a duty of good faith to deal with its policyholders fairly. A policyholder has a contract with an insurer that envisages the timely payment of benefits in certain circumstances. In this case, MVAC arranged to have Ms. Da Ponte's attendant care and housekeeping needs assessed after she returned home from the hospital. Ms. D'Souza reported her recommendations on a monthly basis starting in April 2000. The assessment costs, translation costs, and assistive devices were paid, but no money was paid to Ms. Da Ponte for her attendant care or housekeeping needs until December 2000, over a year after the accident. A lump sum payment was made on December 29, 2000, in the amount of $2,400 for housekeeping and $4,811.28 for attendant care. The next payments were in July 2001, in the amount of $2,048.54 for housekeeping and $4,227.92 for attendant care. After that date, payments were made on a monthly basis.

It is clear from the adjuster's notes and Ms. D'Souza's reports that there was communication between the two about Ms. Da Ponte's needs. Ms. D'Souza's November 2000 report included a note that Ms. Da Ponte was frustrated by the lack of payment from the insurance company for the assistance provided by her sister and neighbour. There was no explanation for MVAC's decision not to make these payments on a reliable monthly basis prior to July 2001.

Furthermore, the very first report from Ms. D'Souza, dated April 13, 2000, stated that Ms. Da Ponte was suffering an inability to perform her pre-accident activities. Nonetheless, MVAC wrote to Ms. Da Ponte advising that it was denying entitlement to non-earner benefits on the basis of this report. I find, therefore, that, in addition to delaying the payment of attendant care and housekeeping benefits, the decision to deny the non-earner benefits was unreasonable.

In light of the clear reporting that Ms. Da Ponte required the attendant care and housekeeping assistance, with no payment forthcoming to meet this need, I find that there are no circumstances that mitigate against ordering MVAC to pay a lump sum award of $6,000, inclusive of interest, representing approximately 50% of the amount of the attendant care and housekeeping payments that it unreasonably withheld.

EXPENSES:

The parties requested that the question of expenses be deferred until all other issues in dispute were decided. They may speak to me on the issue of expenses if they are unable to resolve it themselves.

October 28, 2002

Janice Sandomirsky

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 169

FSCO A01-000486

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA DA PONTE

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

ARBITRATION ORDER

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

1. MVAC shall pay Ms. Da Ponte weekly non-earner benefits, starting from the week of May 8, 2000, and ongoing, pursuant to section 12 of the Schedule. Because Ms. Da Ponte was over the age of 65 at the time of the accident, the quantum of her non-earner benefits is to be calculated in accordance with section 10 of the Schedule.

2. MVAC shall pay Ms. Da Ponte for 16 hours of attendant care per week from March 5, 2001 to November 8, 2001, the 104 week mark of the date of the accident, pursuant to sections 16 and 18 of the Schedule.

3. MVAC shall pay Ms. Da Ponte $100 per week for housekeeping and home maintenance services from November 23, 2000 and continuing to November 8, 2001, pursuant to section 22 of the Schedule.

4. MVAC shall pay Ms. Da Ponte for the cost of the occupational therapy assessment report from RMI, dated October 31, 2001, in the amount of $1,704.37, pursuant to section 24 of the Schedule.

5. MVAC shall pay Ms Da Ponte a special award in the amount of $6,000, inclusive of interest, pursuant to subsection 282(10) of the Insurance Act.

6. MVAC shall pay Ms. Da Ponte interest on the amounts owing for the non-earner benefits, attendant care benefits and housekeeping benefits pursuant to section 46(2) of the Schedule.

October 28, 2002

Janice Sandomirsky

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, 303/98, 114/00 and 482/01.
2. 2The case of Kellar and Halifax Insurance Company (FSCO A97-001962, April 28, 1999) sets out the case law considering the wording of section 13(8) of the Bill 68 Schedule. That section provides benefits after 156 weeks where an injury "continuously prevents the insured person from engaging in substantially all of the activities in which the person would normally engage."
3. 3G and Allstate Insurance Company (OIC A-013283 December 7, 1995)
4. 4Urquhart and Zurich Insurance Company (OIC A96-00368, June 4, 1997)
5. 5J.P. and Wawanesa Mutual Insurance Company (OIC A96-001312, August 11, 1997)
6. 6Marchildon and State Farm Mutual Automobile Insurance Company (FSCO A97-000643, November 3, 1998)
7. 7The maximum amount payable under the section is $100 per week, unless the insured person sustained a catastrophic impairment. Ms. Da Ponte was referred for an assessment of whether she suffered a catastrophic injury, but that assessment has not been concluded. Therefore, for the purposes of this claim, I have made my finding on the basis that Ms. Da Ponte did not suffer a catastrophic injury.