Neutral Citation: 2004 ONFSCDRS 41

FSCO A02-001753

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LESLEY RITCHIE

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

October 28, 2003, in Brantford, Ontario.

Appearances:

J.M. Arthur LeFebvre for Ms. Ritchie

Gordon L. Robson for Economical Mutual Insurance Company

Issues:

The Applicant, Lesley Ritchie, was injured in a motor vehicle accident on January 25, 1993. She applied for and received medical and rehabilitation benefits under the Schedule¹ from Economical Mutual Insurance Company ("Economical") until the tenth anniversary of the accident. Economical rejected Ms. Ritchie's claims for continuing medical and rehabilitation benefits after January 25, 2003. The parties were unable to resolve their disputes through mediation, and Ms. Ritchie applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Ms. Ritchie eligible for various medical and rehabilitation expenses under section 6 of the Schedule after the tenth anniversary of the accident?

Result:

1. Ms. Ritchie is not entitled to any medical and rehabilitation expenses under section 6 of the Schedule after January 25, 2003.

EVIDENCE AND ANALYSIS:

Leslie Ritchie was fourteen years old at the time of the January 25, 1993 accident. She sustained a serious traumatic brain injury, a fractured left leg and internal injuries when a pickup truck struck her while she was crossing the street in front of her family's home.

Ms. Ritchie's surgery following the accident repaired her internal injuries, but unfortunately much of her cognitive deficits from the brain injury remain. She suffers permanent partial left side paralysis, with an uneven walking gait, fatigue, memory problems, migraines, weight problems and other significant symptoms. Ms. Ritchie wears left leg and left hand splints, and uses a wheelchair, scooter and chairlift for transportation, but she periodically drives a car herself.

While Ms. Ritchie has persevered to improve her physical and emotional condition and she has completed her formal secondary education at Mohawk College, she continues to need assistive devices and various support services more than ten years post-accident. Her testimony and expert opinions concerning her future care support her need for the following general categories of treatments and expenses: chiropractic care, pedicures, orthotics and shoe replacements, splint replacement and other mobility assistive devices, housekeeping services, psychological counselling, a personal trainer, gym membership, occupational therapist, a case manager, medications, and replacement of transportation devices.

Economical's denial of Ms. Ritchie's claims for the above supplementary medical and rehabilitation expenses after January 25, 2003 is based on the time-limited coverage in subsection 6(3) of the Schedule:

(3) For purposes of this section, the benefit period is the longer of the two following periods calculated from the day of the accident and ending on the anniversary of the accident:

1. Ten years.

2. Twenty years less the age of the insured person on the day of the accident.

It is agreed that the ten year period applies to Ms. Ritchie and that she incurred the same types of expenses both before and after January 25, 2003.

Ms. Ritchie argues that the necessity of her pre-limit and post-limit treatments and services are inseparable, coverage authorized in the Hope² decision from the Court of Appeal. That Court found subsection 6(3) a clear and unambiguous time limit to coverage, but left the door open for post-limit claims that are "resulting from the accident within the benefit period"³, if:

the treatment or service is properly characterized as a single treatment or service which by its nature had to be delivered in stages over a period of time (e.g. the fitting of an artificial limb), and not as a series of treatments, it would seem arguable that the entire expense for that process resulted when the treatment or service began. (my emphasis)

Ms. Ritchie argues that the consumer protection policy aim advocated by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co.⁴ supports a broad and liberal interpretation favouring her view for continued insurance funding of these necessary services.

The Supreme Court in Smith stated:

... insurance law is, in many respects, geared towards protection of the consumer. This approach obliges the courts to impose bright-line boundaries between the permissible and the impermissible without undue solicitude for particular circumstances that might operate against claimants in certain cases. (my emphasis)

Accepting Ms. Ritchie's position, would abrogate or significantly modify the clear and unambiguous ten year medical and rehabilitation coverage that the Court (in Hope) found the Schedule provides. An insured would only need estimates, expert opinion or invoices proving the continuing necessity and reasonableness of the services in order to qualify an expense for coverage beyond the ten year period.⁵

In my view, Smith should not be construed to extend the clear coverage.⁶ While the Legislature probably did not consider the circumstances where services or treatments are delivered in stages that bridge the limit, Hope struck an even balance between the literal words that appear to strictly bar any claims beyond the ten year limit, against the insured consumer's need to complete necessary and reasonable services or treatment falling outside the covered period.

Therefore, an insured claiming medical and rehabilitation benefits outside of the time-limited coverage must demonstrate on balance that:

1. The treatment or service was necessary and reasonable, commencing within the coverage time.

2. Can be characterized as a single treatment or service, and not as a series.

3. Is integral to the completion of the service or treatment such that it concludes within a concise and reasonable time period after the expiration of the applicable coverage period.

While I am sympathetic to her economic situation, Ms. Ritchie's claims do not fit within the limited extension of the coverage. The evidence demonstrates that all of them will continue into the foreseeable future, and are not part of a concise treatment plan that concludes within a reasonable time after the ten year limit.

It is undisputed Ms. Ritchie will need to periodically replace her splints, footwear and transportation devices, and purchase additional adaptive devices at some time in the future, but none of these items were in the process of or even planned to be purchased or replaced at or around the time of the tenth anniversary. Thus, they cannot be characterized as a whole or single service or treatment being delivered at the time the coverage expired. I find that Ms. Ritchie is not entitled to reimbursement for the expenses of current or prospective new adaptive aids, replacement splints, orthotics, footwear, chairlift, wheelchair or a scooter.

Ms. Ritchie testified that she finished her formal secondary education at Mohawk College in the spring of 2003, after the tenth anniversary of the accident. She did not provide evidence of the cost to bring her scooter home from the school, and I find that Ms. Ritchie is not entitled to reimbursement for this claim.

Ms. Ritchie demonstrated that she has incurred expenses for her ongoing pedicures, chiropractic care and the services of a housekeeping assistant since January 25, 2003 by presenting supporting receipts. Her expert evidence clearly establishes that she will continue to need the same services in the future.

However, there is no evidence that would lead me to conclude that the pedicures, chiropractic appointments or housekeeping on or around January 25, 2003 were part of an overall plan to complete the delivery of a specific service within a reasonable time after expiry of the ten year limitation. I find that Ms. Ritchie is not entitled to the reimbursement for or continuing expenses for pedicures, chiropractic care or housekeeping after January 25, 2003 because they are part of her ongoing treatments or services.

Ms. Ritchie testified that she did not continue psychological counselling, the services of her personal trainer, occupational therapist and case manager after Economical ceased funding on January 25, 2003. She also stated that she does not use the health club membership Economical purchased for her.

Again, the evidence from her experts is consistent that Ms. Ritchie's need for these services will continue and will likely increase as she gets older. However, the recent reports from her specialist in physical medicine, rehabilitation consultant, occupational therapist, fitness consultant and psychological counsellor do not show that any staged services were in the process of delivery and recommended for completion shortly after the policy time limit. On the contrary, these reports indicate that Ms. Ritchie's need for these services operated as a continuous series. I find that by reason of the limitation in subsection 6(3) of the Schedule that Ms. Ritchie is not entitled to expenses for psychological counselling, a personal trainer, occupational therapist or case manager after January 25, 2003.

EXPENSES:

The parties should follow Rules 75 and 79 of the Dispute Resolution Practice Code⁷ to determine their entitlement to and amount of claimed arbitration expenses, and contact the caseworker if they cannot agree and require an assessment hearing.

March 24, 2004

Fred Sampliner

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 41

FSCO A02-001753

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

LESLEY RITCHIE

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Ms. Ritchie's claims for medical and rehabilitation expenses under section 6 of the Schedule are dismissed.

March 24, 2004

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents Before January 1, 1994, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Hope v. Canadian General Insurance, 2002 CanLII 44899 (ON CA), [2002] O.J. No. 1643
3. 3Subsection 6(1) of the Schedule
4. 42002 SCC 30
5. 5Bannon v. McNeely (1998), 1998 CanLII 4486 (ON CA), 38 O.R. (3d) 659 (C.A.)
6. 6Ms. Ritchie does not argue that Economical failed to notify her that her medical and rehabilitation coverage would terminate after ten years. It appears from their correspondence that the parties discussed the limitation at length well before the expiry date.
7. 7(4th Edition, May 31, 2001)