Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 144

FSCO A04-000737

BETWEEN:

ANTHONY FERNANDES by his Power of Attorney for Property, Albert Fernandes

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Denise Ashby

Heard: November 14 and November 15, 2005, at the offices of the Financial Services Commission of Ontario in Toronto. The hearing was reopened and concluded on May 26, 2006

Appearances: Robert Bowman for Mr. Fernandes Todd J. McCarthy for Certas Direct Insurance Company

Issues:

The Applicant, Anthony Fernandes¹, was catastrophically injured in a motor vehicle accident on September 3, 2000. He applied for and received statutory accident benefits from Certas Direct Insurance Company ("Certas"), payable under the Schedule.² Mr. Fernandes claimed an additional attendant care benefit. Certas and Mr. Fernandes were unable to resolve their disputes through mediation, and Mr. Fernandes 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 Certas required to pay to Mr. Fernandes an additional attendant care benefit pursuant to section 16 of the Schedule?

2. What is the rate of the additional attendant care benefit payable to Mr. Fernandes pursuant to section 16 of the Schedule?

3. Is Certas liable to pay Mr. Fernandes a special award pursuant to subsection 282(10) of the Insurance Act?

4. Is Mr. Fernandes entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Certas is required to pay Mr. Fernandes an additional attendant care benefit pursuant to section 16 of the Schedule.

2. Certas is required to pay Mr. Fernandes an additional attendant care benefit at the monthly rate of $37.10 commencing February 5, 2001 and ongoing pursuant to section 16 of the Schedule.

3. Certas is not liable to pay Mr. Fernandes a special award pursuant to subsection 282(10) of the Insurance Act.

4. Mr. Fernandes is entitled to interest for the overdue payment of benefits commencing, from 30 days following Certas' receipt of the Form 1 dated February 22, 2003 in respect of the financial management services, and from December 15, 2005 in respect of the clothes shopping, pursuant to subsection 46(2) of the Schedule.

BACKGROUND:

There is no dispute that Mr. Fernandes was catastrophically injured when he was struck by a motor vehicle on September 3, 2000. Since that date he has been in hospital or resident in a long-term care facility. At the time of the accident, Mr. Fernandes was living self-sufficiently with his wife. She suffered a stroke and is presently confined to bed or a wheelchair. Their daughter now cares for her mother in Mrs. Fernandes' home.

Mr. Fernandes claims that the daily care he receives as a resident of a long-term care facility is inadequate for his needs pursuant to the Form 1.³ He does not receive sufficient personal care and is at risk because he is left alone too frequently. Further, the attendant care amounts paid by Certas does not compensate him for the financial services provided by his son and Attorney for Property, Albert Fernandes. Also, the current rate does not compensate him for the time his daughter-in-law, Joanette Fernandes, spends shopping for his clothes.

Certas submits that its payments for attendant care expenses⁴ together with the OHIP contribution are the full extent of its exposure for attendant care pursuant to section 16 of the Schedule.

EVIDENCE:

Mr. Albert Fernandes and his wife, Joanette Fernandes, testified on behalf of Mr. Anthony Fernandes. They both testified that they visit Mr. Fernandes as frequently and for as long as their family and professional commitments allow. Each claims to visit once every other week which amounts to one weekly visit of approximately 1 to 1½ hours. Each testified that when they visit they bring food which they feed to Mr. Fernandes. This is the extent to which they provide personal care. Mrs. Fernandes testified she tidies his closet on occasion. However, when Mr. Fernandes visits their home for special occasions, such as birthdays, Mr. Fernandes assists his father with personal care such as a transfer from the vehicle to the house, feeding and going to the bathroom.

Mrs. Fernandes is a nurse who testified that she regularly spends 1½ hours with her father-in-law every other week. As well, she purchases his clothes and personal toiletries. Mrs. Fernandes testified that she has informed herself about the care her father-in-law receives. He is incontinent and wears adult diapers which require frequent changes. Mrs. Fernandes testified that Mr. Fernandes is one of eleven residents assigned to a personal service worker on a secure ward. He has one bath per week. On a recent visit, she found Mr. Fernandes sitting on the toilet unsupervised. She did not know how long he had been there. Mrs. Fernandes had to summon a staff person to assist Mr. Fernandes with his bathroom care. Mrs. Fernandes testified that, during her nursing shifts she has difficulty offering sufficient care for seven patients, some of whom are mobile. In her experience it was unrealistic for one care provider to care for eleven patients who require care on a secure ward.

Both Mr. and Mrs. Fernandes testified that they are concerned for the Applicant's safety as there have been incidents where he fell. On July 17, 2003, Mr. Fernandes was transferred from Rockcliffe Long Term Care Facility to the new Extendicare Rouge Valley facility. His son testified that the family thought the new facility would be cleaner and provide better care than Mr. Fernandes had received at Rockcliffe. While at Rockcliffe, his father fell and injured his hip and had to be taken to hospital. Since the transfer to Extendicare Rouge Valley Mr. Fernandes has been called once because his father had fallen. However, he did not go to the facility to be with his father because it was not a serious fall. As well, his father reported to him being struck by another patient.

Since the accident, Mr. Albert Fernandes has assumed responsibility for his father and mother's finances. Prior to the accident, his father took care of the couple's banking and financial business. Mr. Fernandes' evidence regarding the amount of time he spends doing this work was vague. He made it clear that he had no time to document the expenditure of time for Certas and had not done so. Prior to May 2005, Mr. Fernandes received his parents' financial receipts, reviewed them, travelled to the bank, stood in line, made the payments, then returned home. Presently, he makes the payments over the internet with the exception of his mother's rent which is paid by "draft." He continues to receive and review the monthly statements for his parents' expenses.

The Form 1, dated February 22, 2003, assessed Mr. Fernandes as requiring the maximum 1 hour per week of assistance in managing his financial affairs at an hourly rate of $7.00. His total monthly attendant care benefit was assessed at $5,474.74.⁵

I accept Mr. Fernandes' evidence that since the accident he has assumed his father's pre-accident tasks in respect of his parents' finances. However, he failed to estimate the amount of time these tasks take. The only specific assessment of time is provided by the Form 1. I am satisfied that from the date of the accident to May 2005 Mr. Fernandes spent well in excess of the weekly maximum managing his father's financial affairs. There is no evidence that he spent less than 1 hour per week since converting to internet banking. Therefore, I find that Mr. Fernandes spent 1 hour per week managing his father's finances at the hourly rate of $7.00. This equals a monthly rate of $30.10 calculated as $7.00 x 4.3.

Ms Kasim Atwater and Ms Sylvia Clarke, personal support workers employed by Extendicare Rouge Valley, testified on behalf of Certas. Ms Atwater works the day shift from 7:00 a.m. to 3:00 p.m. Monday to Friday and every other weekend. Ms Clarke works the evening shift from 3:00 p.m. to 11 p.m. and every other weekend. Both have cared for Mr. Fernandes for the past three years.

Ms Atwater and Ms Clarke testified that they each care for eleven patients. There are three shifts and there is one person per shift who cares for Mr. Fernandes. Baths or showers for the eleven patients are divided between the day and afternoon shifts. Mr. Fernandes is showered or bathed twice weekly. Additional bathing might be necessitated by Mr. Fernandes soiling himself. All of his personal care needs, such as toileting, dressing, shaving, cutting nails, are taken care of by them. Both Ms Atwater and Ms Clarke described Mr. Fernandes as being able to get himself to the dining room for meals after being assisted into a wheelchair. He does not socialize very much. He tends to stay in his bed when not in the dining room. The facility provides social activities which Mr. Fernandes is encouraged to attend. For the most part he chooses not to participate.

Ms Clarke testified that Mr. Fernandes would not recognize an emergency situation and is unable to summon help. Mr. Fernandes' diaper is checked every 12 hours. If he were to soil himself between staff checks, he might wait for up to an hour or more to be changed. Ms Atwater testified that Mr. Fernandes cannot use the call bell. Both testified that Mr. Fernandes tends to remain quietly in bed and is not a patient who is prone to falling. In their experience he has not fallen while in their care. Neither Ms Atwater nor Ms Clarke were aware of an incident in which Mr. Fernandes was struck by another patient. Neither was aware of an incident in which he was left unattended on the toilet.

Both Ms Atwater and Ms Clarke testified that in their experience Mr. Fernandes receives few visits. They were both aware that his family takes him out of the facility for special occasions several times a year. Ms Clarke testified that Mr. Fernandes is dependent on his family bringing him clothes.

Both Ms Atwater and Ms Clarke testified in a forthright and candid manner. They both have provided intimate care and have spent far more time with Mr. Fernandes over the past three years than his family. Therefore, in respect of Mr. Fernandes' personal care where their evidence differs from the evidence of Mr. and Mrs. Fernandes, I prefer the evidence of Ms Atwater and Ms Clarke.

On the basis of the evidence of Ms Clarke, Mr. Fernandes and Mrs. Fernandes, I find that Mrs. Fernandes has assumed responsibility for shopping for Mr. Fernandes' clothes. Further, I find that she spent one hour per month calculated as three hours once each quarter.

Ms J. Calderone, a senior litigation advisor employed by Certas, testified that since July 17, 2003 Certas has paid Extendicare Rouge Valley $2,028.49 monthly. This represents the co-payment referred to in the Ministry of Health and Long-Term Care's letter dated May 29, 2003.⁶ Certas had previously paid Rockcliffe Long Term Care Facility a monthly co-payment of $1,920.00 commencing February 5, 2001, the date upon which Mr. Fernandes was transferred to it from hospital.

Ms Calderone testified that the co-payment to Extendicare Rouge Valley pays for the services, equipment and supplies set out in the "Facility Responsibilities."⁷ She testified that Certas had written to Mr. Fernandes in letters dated February 12, 2003⁸ and April 6, 2004⁹ requesting information in respect of the claim for attendant care and had received no response.

I accept Ms Calderone's evidence in respect of the payments and the services provided by Extendicare Rouge Valley.

ANALYSIS:

The relevant portions of section 16 of the Schedule state the following:

(2) The attendant care 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) services provided by an aide or attendant; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital

(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

(5) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the accident occurred before October 1, 2003, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

Both Rockcliffe Long Term Care Facility and Extendicare Rouge Valley meet the statutory definition of a chronic care hospital. Certas submits that its payments together with O.H.I.P.'s contribution cover all reasonable and necessary expenses incurred on behalf of Mr. Fernandes. As well, Certas argues that according to the rules of interpretation, the "or" which separates subsections 16(2)(a) and 16(2)(b) is disjunctive and signifies two mutually exclusive possibilities. Therefore, Certas is only required to provide for the cost of an aide or the cost of a chronic care facility, not both. In order for "or" to be interpreted as "and", the result must otherwise be an absurdity or a mistake in the implementation of the legislation.

Mr. Fernandes submits that he has incurred additional reasonable and necessary attendant care expenses to maintain a reasonable standard of personal security and care, obtain clothing and to maintain his family finances. Further, subsection 16(2)(a) and 16(2)(b) should be read conjunctively in keeping with a purposive interpretive approach adopted by Commission arbitrators and the courts.

Both Mr. Fernandes and Mrs. Fernandes testified in support of Mr. Fernandes' need for a personal attendant to insure his personal security and care needs are met. They testified to various events which led them to this conclusion. With the exception of finding Mr. Fernandes alone on the toilet, none of the occurrences were directly observed. At best they represent isolated incidents over a five-year period in which care and supervision may have fallen below a standard expected by a loving family. I have preferred the evidence of Ms Atwater and Ms Clarke that all of Mr. Fernandes' daily personal care and security are being met at Extendicare.

Long-term care facilities cannot be held to a standard of perfection or the standard that would meet the expectations of a loving family. They must be held to a reasonable standard. The Form 1 sets out the attendant care services which are reasonably necessary. I find that the daily care Mr. Fernandes received from Rockcliffe Long Term Care Facility and is presently receiving from Extendicare Rouge Valley satisfies those requirements. Therefore, I find additional daily attendant care for Mr. Fernandes is neither reasonable nor necessary.

However, additional attendant care is reasonable and necessary for the management of Mr. Fernandes' financial affairs and clothing care. These intermittent attendant care services have been provided by Mr. and Mrs. Fernandes since the accident. No documentation has been provided to Certas supporting the provision of these services notwithstanding the information was requested. However, the nominal nature of these claims raises a question of what documentation is reasonable in the circumstances.

The degree to which a claim must be supported was discussed in Zurich North America Canada and Stargratt¹⁰ in which the Director's Delegate stated:

Insurers are entitled to require documentation of caregiver and attendant care services claimed, and they have reason to ask more questions when family members provide the services. Although detailed contemporaneous record-keeping is ideal, evidentiary requirements should be tailored to the informal context.

The Form 1 assessed Mr. Fernandes' need for financial management services at the maximum one hour per week. This represents a minimal amount of time for receiving, reviewing and dealing with personal finances. I find that the Form 1 provides a nominal weekly maximum, which, if assessed, also constitutes a weekly minimum for such services.

Mr. Fernandes was catastrophically impaired. As a consequence, his son was made Power of Attorney for Property on December 28, 2000.¹¹ Certas was aware of this. It dealt with Mr. Fernandes in this capacity. Certas was also aware that Mr. Fernandes required financial assistance at the hourly rate of $7.00 by virtue of the Form 1. Certas had all the information necessary to pay this component of the attendant care benefit. It was unreasonable to require documentation in these circumstances. Therefore, I find the monthly rate of $30.10 for managing Mr. Fernandes' finances was an incurred expense.

An assessment of time for clothing care was omitted from the Form 1. I concluded that Mrs. Fernandes spent one hour per month shopping for clothes. I find that this time is a reasonable and necessary expense in respect of level 2 clothing care payable at the hourly rate of $7.00. However, particulars of the claim were not provided until the hearing. The claim is nominal. In such circumstances detailed documentation would be unreasonable. The expense has been incurred. Mr. Fernandes should be compensated for it. I find that Mr. Fernandes crystallized the claim at hearing. Payment did not become due until 30 days following the conclusion of the evidentiary portion of the hearing on November 15, 2005.

The additional monthly payment of $37.10 for financial management services and shopping for clothes will not result in the monthly attendant care benefit exceeding the $5,474.74 assessed in the Form 1.¹²

Having found that the expenses for financial management services and shopping for clothes were reasonably and necessarily incurred expenses, it is necessary to consider the interpretation of subsection 16(2) of the Schedule. In Bellavia and Allianz Insurance Company of Canada / ING¹³, the arbitrator found that it should be interpreted conjunctively. She held:

More importantly, when I apply the rules of statutory interpretation and review subsections 16(2) (a) and (b) in the total context of the Schedule and indeed, the Insurance Act, I am led to the inescapable conclusion that the word "or" is to be read inclusively. That is the only interpretation which can be justified in terms of plausibility, promotion of the legislative purpose and acceptability; that is, the outcome is reasonable and just.

I adopt the reasoning in Bellavia and find that Certas is required to pay Mr. Fernandes attendant care expenses incurred concurrently under subsection 16(2)(a) and 16(2)(b) of the Schedule for assistance in managing his financial affairs and shopping for clothes.

Interest shall commence to run, in respect of the financial management services, from 30 days following Certas' receipt of the Form 1 dated February 22, 2003 and in respect of the clothes shopping from December 15, 2005, pursuant to subsection 46(2) of the Schedule.

Special Award:

A special award was identified as an issue in the pre-hearing letter dated October 4, 2004. Mr. Fernandes was silent on the issue. Certas submitted that there was no evidence of "stubborn unyielding conduct" on its part which might support such an award.

I find that the additional attendant care benefit was neither unreasonably withheld nor delayed. Therefore, Mr. Fernandes is not entitled to a Special Award pursuant to subsection 282(10) of the Insurance Act.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue on their own, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

August 25, 2006

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 144

FSCO A04-000737

BETWEEN:

ANTHONY FERNANDES by his Power of Attorney for Property, Albert Fernandes

Applicant

and

CERTAS DIRECT 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. Certas is required to pay Mr. Fernandes an additional attendant care benefit pursuant to section 16 of the Schedule.

2. Certas is required to pay Mr. Fernandes an additional attendant care benefit at the monthly rate of $37.10 commencing February 5, 2001 and ongoing pursuant to section 16 of the Schedule.

3. Certas is not liable to pay Mr. Fernandes a special award pursuant to subsection 282(10) of the Insurance Act.

4. Mr. Fernandes is entitled to interest for the overdue payment of benefits commencing, from 30 days following Certas' receipt of the Form 1 dated February 22, 2003 in respect of the financial management services, and from December 15, 2005 in respect of the clothes shopping, pursuant to subsection 46(2) of the Schedule.

August 25, 2006

Denise Ashby Arbitrator

Date

Footnotes

1. 1Mr. Anthony Fernandes' claim for benefits was assumed by his Power of Attorney for Property, Albert Fernandes, effective April 15, 2005 pursuant to the order of Arbitrator Sampliner, Exhibit 1.
2. 2The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
3. 3Exhibit 3, Assessment of Attendant Care Needs (Form 1), dated February 22, 2003
4. 4Exhibit 6, letter dated May 29, 2003
5. 5Exhibit 3, Assessment of Attendant Care Needs (Form 1), dated February 22, 2003
6. 6Exhibit 6
7. 7Exhibit 5
8. 8Exhibit 7, page 1
9. 9Exhibit 8, page 1
10. 10(FSCO P01-00045, March 31, 2003)
11. 11Exhibit 2
12. 12Exhibit 3, Assessment of Attendant Care Needs (Form 1), dated February 22, 2003
13. 13(FSCO A05-000807, February 21, 2006), page 11, under appeal