Neutral Citation: 2002 ONFSCDRS 179

FSCO A02-000697

BETWEEN:

KOKILABEN D. GANDHI

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before:

Beth Allen

Heard:

October 4, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Charlia D. von Buchwald for Mrs. Gandhi

Joseph Lin for the Motor Vehicle Accident Claims Fund

The Applicant, Kokilaben D. Gandhi, was injured in a motor vehicle accident on November 5, 2001. She applied for and received statutory accident benefits from the Motor Vehicle Accident Claims Fund ("MVAC"), payable under the Schedule.¹ The issues in dispute in the main proceeding are entitlement to various medical benefits; visitors' expenses; attendant care benefits for the period November 16, 2001 to January 9, 2002; arbitration expenses; and interest on overdue attendant care benefit payments.

Shortly before this motion, the parties resolved the dispute over the Applicant's entitlement to housekeeping expenses and the issue of the Applicant's entitlement to attendant care benefits for the period January 9, 2002 to April 23, 2002. MVAC agreed to pay the attendant care benefits on September 25, 2002, but I have no evidence of when it made this payment. The Applicant's entitlement to interest on the attendant care benefits paid by MVAC for this period remains in dispute.

In this motion, I am asked to determine the Applicant's entitlement to interim attendant care benefits for the 53 days from November 16, 2001 to January 9, 2002 and interest on attendant care benefits MVAC agreed to pay.

The parties were unable to resolve the issues in dispute through mediation, and the Applicant 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 dispute in this motion are:

Is the Applicant entitled, under subsection 279(4.1) of the Insurance Act, to an order for interim attendant care benefits claimed pursuant to section 16 of the Schedule for the period from November 16, 2001 to January 9, 2002?
Is the Applicant entitled to interest on the $16,326.07 ($19,819.81 minus the $3,493.74 already paid) in attendant care benefits paid by MVAC for the period the Applicant was hospitalized at the Toronto Rehabilitation Institute?

The Applicant is not entitled to an order for interim attendant care benefits.
The Applicant is entitled to interest, in accordance with section 46 of the Schedule, on the $16,326.07 in attendant care benefits paid by MVAC. The interest shall be calculated from February 7, 2002, until the date the payment was made.

The parties filed briefs containing written submissions and documents and presented oral submissions at the motion. The Applicant's husband, Mr. Dhirajlal Gandhi, testified in support of the motion.

Brief Background to the Case:

On November 5, 2001, the Applicant was injured in an automobile accident as a passenger in a vehicle driven by her husband. She was initially hospitalized at Sunnybrook Hospital "Sunnybrook" where she was in a coma for approximately six weeks. The Applicant sustained catastrophic impairments including a head injury and other physical injuries. According to the Applicant's submissions, a Catastrophic Impairment Designated Assessment Centre ("CAT/DAC") determined that the Applicant had suffered a catastrophic impairment as a result of the accident. (I do not have the CAT/DAC report before me). It is not in dispute that the Applicant suffers from psychiatric/psychological disabilities that affect her cognitively, behaviourally and emotionally, and from physical disabilities that have rendered her wheel-chair bound.

An Assessment of Attendant Care Needs form report dated February 1, 2002, prepared on behalf of the Applicant by her case manager, Ms. Carol Bierbrier, indicates that she [the Applicant] required 24-hour care at a rate of $5,796.66 per month at the Toronto Rehabilitation Institute (the "TRI") where she was admitted after her release from Sunnybrook.

The Applicant was in critical care at Sunnybrook from November 5 to November 8, 2001, where nursing care was one nurse for every patient. She was then transferred to the neurological intensive care unit where she remained from November 8 to November 16, 2001, and nursing care was one nurse for every two patients. From November 16 to January 9, 2002 she was in a recovery ward, with one nurse for every six patients. The Applicant was released from Sunnybrook to the TRI on January 9, 2002 and remained there until discharged to her home on April 23, 2002.

Initially, the Applicant sought interim attendant care benefits for the entire period of her hospitalization at Sunnybrook, as well as for her stay at the TRI. However, as will be seen below, MVAC agreed to pay attendant care benefits for the period at the TRI. At the hearing, the Applicant amended her claim to exclude the time from November 5 to November 16, 2001 when she was in the critical and neurological intensive care units at Sunnybrook. The Applicant therefore claims interim attendant care benefits of $10,100.21 ($190.57/day X the 53 days from November 16, 2001 to January 9, 2002).²

By letters dated February 7, 19, 26 and March 6 and 15, 2002, the Applicant requested payment of attendant care benefits based on her case manager's February 1, 2002 report. MVAC had been provided with hospital reports and records, and a video tape prepared by the TRI demonstrating the extent of the Applicant's disabilities. The Applicant also made a request for a DAC assessment of her attendant care needs in the March 6, 2002 letter. MVAC made requests for further medical documentation which the Applicant provided - a medical opinion from a physiatrist at the TRI dated March 8, 2002, supporting the Applicant's need for 24-hour attendant care from the family, and a statutory declaration from a family member of the Applicant attesting to the Applicant's circumstances after the accident.

MVAC commissioned an Assessment of Attendant Care Needs report by Ms. Viivi Riis, a physical therapist. In her report dated April 2, 2002, she recommended attendant care by the family at the TRI at the rate of $1,031.50 per month, which figure takes into account the care provided by the TRI staff. MVAC paid the Applicant $3,493.74 for attendant care services in accordance with Ms. Riis's April 2, 2002 report. MVAC was provided with correspondence from the TRI which opined that Ms. Riis's recommendations are insufficient to meet the Applicant's needs. The Applicant did not accept Ms. Riis's assessment and again requested a DAC assessment in a letter dated April 3, 2002. On April 13, 2002, Ms. Riis prepared a second Assessment of Attendant Care Needs report recommending attendant care benefits at the considerably increased rate of $6,003.80 per month

The attendant care issue was not resolved at the mediation on April 18, 2002. The Applicant therefore filed for arbitration on May 2, 2002. On May 8, 2002, according to the Applicant's submissions, MVAC made a payment of $8,648.05 for attendant care benefits to cover a portion of the family's attendant care services during her stay at the TRI. On September 25, 2002, MVAC made a further payment of $19,819.81 (minus the $3,493.74 it previously paid), also for the family's attendant care services during the Applicant's stay at the TRI.

MVAC requested a record of the hours of care contributed by the family members from November 5, 2001 until April 23, 2002. The Applicant provided these records. According to MVAC's submissions, MVAC is currently paying the Applicant ongoing attendant care benefits at the maximum rate allowable under the Schedule.

The Applicant's husband testified about the Applicant's circumstances at Sunnybrook during the relevant period of her stay in the recovery ward after her release from the neurological intensive care unit, and before she was transferred to the TRI.

The Applicant's husband testified that nursing care was one nurse for every six patients in the recovery ward during the day and less at night. He stated that his wife was restless because of her brain injury. He also testified that, because she understood the family members' verbal communication better than that of the medical staff due to their common language, she would settle down when she heard the family members' voices. He explained that the nursing care was not adequate for a person in his wife's condition. So, the family took shifts caring for her around the clock because when she became restless, she would try to remove her oxygen and feeding tubes, and the family feared that she might fall out of bed when she was unrestrained and further injure herself. The Applicant's husband pointed out that her head injury involved an open area in her skull which exposed her brain. For this reason, the family would place a pillow and blanket on the bed rail to prevent the Applicant from hitting her head. The Applicant's husband testified that family members were continuously needed 24 hours a day to be at the Applicant's bedside to ensure that these protective measures remained in place. The Applicant's daughter would also change her mother's diapers during periods when the nurses were very busy.

The Applicant's evidence is that a financial burden was placed on the family during this period because neither the husband nor the son were able to earn any income during the period in question due to the extensive time they had to spend at the hospital. The Applicant was released from the TRI to home on April 23, 2002 and her husband continues to care for her at home.

The Law:

A grant of interim benefits is a discretionary and extraordinary remedy. An arbitrator's power to order interim benefits through interlocutory proceedings derives directly from the authority conferred by section 279 (4.1) of the Insurance Act, which states:

279.- (4.1) The Director and every arbitrator appointed by the Director may make interim orders pending the final order in any matter before the Director or arbitrator.

Interlocutory proceedings are summary in nature and as such are directed toward providing an expeditious order and speedy relief to the party seeking the order if the party can satisfy certain criteria. Interlocutory proceedings are intended: to consider limited issues based on limited evidence; to affect a limited period of time - usually the period between the date of the interlocutory and the final order; and to hear matters where time considerations and urgency are often factors to consider. Generally, with applications for interim benefits, in the interest of speed and expeditiousness, the applicant is not required to prove her case on the balance of probabilities.

In deciding the appropriateness of interim benefit awards, Commission arbitration decisions have applied a continuum of standards of proof, from the more lenient test of a prima facie case,³ to the "convincing case"⁴ test, and the more stringent test of proving a "very probable case."⁵

Arbitration decisions vary on whether, and in what respect, the applicant is required to meet the test of urgency to succeed in obtaining an interim benefit award. Cases have generally held that urgency or need must underlie the application and that this need or urgency need not be of a financial nature.⁶

Other cases have held that, under certain circumstances, non-compliance with Schedule provisions, such as those governing benefit termination and the DAC process, will attract an award of interim benefits.⁷

The Parties' Arguments:

The Applicant's Arguments

The Applicant submits that she has established that she is entitled to interim attendant care benefits for the period in question, because she has been assessed as catastrophically impaired and the evidence establishes that her family has provided attendant care from the date of the accident throughout her stay at Sunnybrook and the TRI.

The Applicant also argues that she is entitled to interim benefits for the period from November 16, 2001 to January 9, 2002 because of MVAC's failure to comply with the requirements of the DAC process as set out in subsection 39(4) of the Schedule when it failed to schedule the Attendant Care DAC requested despite the Applicant's several requests for same. Subsection 39(4) of the Schedule provides that if the insurer determines that the insured person is not entitled to receive attendant care benefits, then the insurer shall require the insured person to be assessed by a designated assessment centre and shall give the person notice of its determination with reasons. The Applicant argues that MVAC's breach of this provision was in blatant disregard of the Schedule's requirements and, as such, is a basis upon which interim benefits can be awarded.

The Applicant further argues that attendant care benefits under the Schedule are to be paid by the insurer pending the outcome of the dispute and, accordingly, MVAC is required to pay the attendant care benefits claimed pending the final decision on this issue. The Applicant relies on subsection 39(6) of the Schedule in making this argument. This provision states that, if a DAC assessment is required, the insurer shall pay attendant care benefits pending receipt of the DAC report.

The Applicant submits that she is entitled to $10,100.21 ($190.57/day X the 53 days from November 16, 2001 to January 9, 2002) in interim attendant care benefits, together with interest calculated on that amount. She also seeks interest on the attendant care benefits of $16,326.07 MVAC paid for the period of the Applicant's stay at the TRI.

In her oral submissions, the Applicant's counsel, as I understand it, submitted that she is not advancing urgency or financial hardship as a basis for the Applicant's claim for interim attendant care benefits. Nor did she advance any evidence in this regard.

The Insurer's Argument:

MVAC argues that the Applicant has not satisfied the criteria that would permit an interim benefits award.

First, according to MVAC, the Applicant has not established the merits of her case on a prima facie basis because she has provided no evidence that additional attendant care services, over and above that provided by the staff at Sunnybrook, were needed.⁸

MVAC filed into evidence a document that seems to indicate that a private duty nurse, not paid by the hospital, might be provided to hospital patients, under Ontario's Health Insurance Act. I note that there is no date indicating when the legislation is or was applicable. Because the document also states frequent changes are made in respect of the insured services, and bulletins should be consulted for information on the changes, I give this document no weight in arriving at my decision.

Second, the Applicant has not established any urgency or financial need behind her claim.

And third, MVAC argues that it did not display blatant disregard for the provisions of the Schedule in not scheduling an attendant care DAC assessment. The Attendant Care Designated Assessment Centre Guide - A Guide to Conducting Attendant Care Assessments [Financial Services Commission of Ontario, December 2000], under Part 4, "Scope of Assessment," states "[a]ttendant care needs may not be completed 'retrospectively' as the SABS specifies that the report will address 'future provision of attendant care services.'[section 43(7)]" Therefore, according to MVAC, it could not have ordered a DAC assessment for the period of time the Applicant was in Sunnybrook because the DAC would have been required to look retrospectively at her needs.

Reasons for Decision

After considering the evidence before me and the parties' arguments, I conclude that the Applicant is not entitled to an order for interim attendant care benefits. I arrive at my decision for the following reasons:

I find, in accordance with the Commission decisions that concur with the Simpson arbitration case,⁹ that the Applicant would have had to establish a prima facie case, some urgency or necessity and a blatant disregard for the Insurance Act or the Schedule in establishing a claim for interim benefits. I find that these criteria are in keeping with the extraordinary and exceptional nature of a grant of interim relief.

I recognize from the Applicant's husband's testimony, and accept, that the Applicant's injuries have caused a significant impact on her family. While an applicant is not expected to advance her entire case to establish a prima facie case, I find in the circumstances of this case that in addition to the husband's testimony, the testimony of a witness from the Sunnybrook staff or documentary medical evidence from the hospital would have been helpful in deciding the extent of the family care required. For instance, it might have been of assistance to have heard from a Sunnybrook treating nurse or to have had hospital records including nurses notes and attending physicians' or treatment providers' records for the period in question. I have no such medical evidence from Sunnybrook before me. The evidence I do have, such as the attendant care needs assessments commissioned by both the Applicant and MVAC and the physiatrist's report, focuses on the Applicant's attendant care needs at the TRI.

With the benefit of more fulsome documentary and oral evidence, I find that the arbitrator who makes a final determination in this case will be in a better position than I am to decide the issue of the Applicant's entitlement to attendant care benefits during the period in question.

In her written submissions, the Applicant advanced financial urgency as a basis for her claim. However, as I understand it, she withdrew this argument in oral submissions. In any event, as regards financial urgency, the Applicant is in receipt of attendant care benefits at the maximum rate allowable under the Schedule. I also considered that the date set for the full hearing is in the not too distant future, being about nine weeks from the date of this decision.

Whether MVAC has been in blatant disregard of the Insurance Act or Schedule for failing to order a DAC assessment is a more complex question. I have little documentary evidence before me pertaining to MVAC's conduct with respect to the attendant care DAC process set out in section 39 of the Schedule. It is not at all clear from the Applicant's written submissions or the evidence if and when MVAC provided [a] notice[s] of refusal and requirement for the assessment, as required by subsection 39(4) of the Schedule. I find that the existence or non-existence of these documents - and their dates and contents if they do exist - are essential to a determination of whether MVAC was in blatant disregard of the Schedule or the Insurance Act or not.

This issue might be more appropriately raised before the arbitrator presiding over a full hearing of the issues when considering the expense issue or if called upon to determine the issue of a special award.

Also, I do not accept the Applicant's interpretation that the attendant care benefit claim is a pay pending dispute matter under the Schedule. There is no provision in the current statutory accident benefits scheme that provides for this. Rather, I find that subsection 39(6) contemplates a situation where the insurer has terminated or refused attendant care benefits, the insured person has requested a DAC assessment, and that the insurer has scheduled the DAC appointment. Only under these circumstances, which do not apply in the case before me, is the insurer required to pay attendant care benefits pending receipt of the DAC report.

I therefore conclude that the Applicant is not entitled to interim attendant care benefits for the period of her hospitalization at Sunnybrook from November 16, 2001 to January 9, 2002.

Interest on Attendant Care Benefits Overdue

The Applicant requests that MVAC pay interest on attendant care benefits in the amount of $16,326.07, which it agreed to pay on September 25, 2002, for the period the Applicant was in the TRI. MVAC made no submissions on the interest issue.

In accordance with section 46 of the Schedule, MVAC is required to pay the Applicant interest on the attendant care benefit amount of $16,326.07 ($19,819.81 minus the $3,493.74 already paid) from February 7, 2002 until the day the amount was paid. February 7th is the date by which MVAC received Ms. Carol Bierbrier's Assessment of Attendant Care Needs report of February 1, 2002 and the hospital records and report referred to in the Applicant's counsel's letter of February 7, 2002.

I find that the payment became overdue from February 7, 2002 because MVAC had been provided sufficient information by that date to support the recommendation for 24-hour attendant care at the TRI. In fact, MVAC's own assessor, Ms. Riis, in her report of April 13, 2002, confirmed Ms. Bierbrier's recommendation, offering an even higher rate of benefits than that recommended by Ms. Bierbrier,

EXPENSES:

The parties made no submissions as to expenses. I leave the question of expenses for the hearing arbitrator.

November 14, 2002

Beth Allen Arbitrator

Date