Financial Services Commission of Ontario
Neutral Citation: 2007 ONFSCDRS 121 FSCO A06–000028
BETWEEN:
TYVON WHYTE Applicant
and
NON-MARINE UNDERWRITERS, MBRS. OF LLOYD’S Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi Heard: December 11, 12, 13 and 14, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Sheldon L. Kasman and Beverly Bly for Mr. Whyte J. Claude Blouin for Non-Marine Underwriters, Mbrs. of Lloyd’s
Issues:
Tyvon Whyte, the applicant, was struck by a motor vehicle as a pedestrian on October 30, 2001. He was six years old. He was determined to have suffered a catastrophic impairment as a result of the accident. He applied for, and continues to receive, myriad benefits from Non-Marine Underwriters, Members of Lloyd’s, the insurer of the striking vehicle, including attendant care benefits in the amount of $765 per month. From November 23, 2004 and ongoing, Tyvon claims amounts for attendant care that exceed the monthly amount being paid by Lloyd’s. Essentially, the additional attendant care benefits Tyvon claims are for his attendant care provider, Vicki Mae Lewis, who is also his mother, to provide him with supervision all the time he is not otherwise supervised. The basis of his claim for attendant care is that his impairments as a result of the accident have caused such impulsivity and unpredictability requiring that he be supervised at all times. Lloyd’s, on the other hand, asserts that some of the supervision provided to Tyvon by his mother is in the nature of the regular parenting provided by every parent to every child of Tyvon’s age and that therefore attendant care benefits are not appropriately paid for such care.
The parties were unable to resolve this dispute, and others, through mediation and Tyvon applied for arbitration at the Commission.
The particular issues in this hearing are:
Is Tyvon entitled to attendant care benefits in the amount of $1760.81 from November 23, 2004 to July 26, 2006 and $3024.26 from July 27, 2006 and ongoing, as recommended by Ellen Lipkus and detailed by her in two Forms 1?
Is Tyvon entitled to receive the increased hourly amounts for attendant care that are in force with the amendments to the Schedule as of March 1, 2006?
Is Tyvon entitled to $3150.61 for the cost of a vocational assessment dated August 31, 2005 conducted by David Antflick?
Result:
Tyvon is entitled to attendant care benefits in the amount of $1760.81 from November 23, 2004 to July 26, 2006 and in the amount of $3024.26 from July 27, 2006 and ongoing, less amounts credited to Lloyd’s for the time when Tyvon was otherwise supervised. I remain seized of this issue in the event that there are any unresolved disputes respecting the quantum of attendant care benefit.
Tyvon is not entitled to be paid the higher amounts for attendant care that are in force as of March 1, 2006 with the amendments to the Schedule.
Tyvon is not entitled to $3150.61 for the cost of a vocational assessment dated August 31, 2005 conducted by David Antflick.
Is Tyvon entitled to the increased monthly amounts of attendant care that he claims from November 23, 2004 and ongoing?
The Attendant Care Benefit
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 services provided by an aide or attendant.1 Because Tyvon is catastrophically impaired, the maximum monthly attendant care benefit available to him is $6000.2
The monthly amount payable by the attendant care benefit is to be determined in accordance with a Form 1.3 There are three different types of care that qualify as attendant care and they are each outlined in the Form 1 and referred to as “levels.” The levels are differentiated by the kind of skill required to perform that type of attendant care, and, based on that, an hourly rate of pay is assigned. The Form 1 focuses the attendant care assessor on determining the number of minutes required for each specific level of attendant care.
The Parties’ Submissions
In Tyvon’s case, the parties disagree about the number of minutes that are required for level 2 attendant care. Level 2 attendant care is comprised of the basic supervisory functions that must be provided to the insured person. For example, level 2 attendant care incorporates the supervision that must be provided for ventilator dependent applicants, applicants with spinal injuries and, as is the case here, applicants with severe brain injuries. The Form 1 describes “applicants with severe brain injuries” as “the client lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.”
Ellen Lipkus’ Forms 1 indicate that for the period from November 2004 to July 2006, Tyvon requires 2020.2 minutes (33.6 hours) per week of supervision by his mother and for the period from July 2006 and ongoing, he requires 3829 minutes (63.7 hours) per week. With respect to this latter period, the 3829 minutes (63.7 hours) per week does not take into account the deduction for the time that Tyvon would be in school. Apart from this, these weekly amounts essentially comprise all of the time in a week that Tyvon is otherwise not supervised.
Tyvon argues that Ellen Lipkus’ assessments are more reliable and informed because she has spent more time with Tyvon and she knows both him and his mother well. Ms. Lipkus’ conclusions are essentially that Tyvon’s mother needs to be on call to deal with whatever the nature and frequency of his outbursts might be; his impulsivity and unpredictability are the problems here. As long as he has frontal lobe damage, both Tyvon’s moods and behaviour will swing. Furthermore, Tyvon argues that the DAC’s methodology is erroneous in a case where the need is for constant supervision. The nature of the supervision required with Tyvon is always over and above that provided by the parent of a regular child. Tyvon’s mother’s duty towards Tyvon is not like that of a regular parent. When three professionals place on her a duty to provide supervision and care during all waking hours, she is bound to behave differently than a regular parent of a regular child.
Lloyd’s, on the other hand, supports the conclusions of the Attendant Care DAC assessors who concede that Tyvon requires extra supervision for management of his behaviour but whose Form 1 indicates that, over the course of a week, the extra supervision amounts to 629 minutes (10.5 hours). Lloyd’s asserts that the DAC assessors properly calculated the necessary attendant care as they divided up the time in a day and separated it into the time Ms. Lewis must devote to the special supervision and direction that Tyvon requires as a result of his impairments, and the time that she provides the regular supervision and direction that is required to care for and supervise any child of Tyvon’s age.
In Lloyd’s view, Ms. Lipkus’ approach does not seem to focus on what is truly an attendant care need compared to that which is needed by a child in general. On the other hand, the DAC assessors did specifically identify the areas where additional supervision is required for Tyvon. In Lloyd’s view, the DAC approach is more reasonable because it recognizes that regular parenting, which must still be provided in Tyvon’s case, is less hands-on than is attendant care and is not to be compensated through attendant care benefits. Furthermore, Lloyd’s stresses that a call by Tyvon’s various service providers for more support and ongoing, constant supervision does not necessarily mean that non-stop attendant care is required.
Finally, Lloyd’s contends that, of necessity, Ellen Lipkus’ role is that of an advocate for Tyvon, given her job as his case manager, and therefore an inference should be drawn that her evidence is not impartial.
Facts
There is no controversy about Tyvon’s impairment; he is a brain-injured child and there was also evidence before me that he has been diagnosed with ADD related to the brain injury. Most of the evidence tendered at the hearing focused on the effects this injury has had on Tyvon’s daily functioning and activities.
Again, I would say that with respect to those effects, the evidence before me was largely consistent and uncontroverted. As a result of his injury, Tyvon has a whole host of limitations:
- learning difficulties
- compromised executive functioning
- behavioural issues and a vulnerability to peers
- an inability to process the difference between right and wrong
- recurrent verbal and physical aggression and unsafe behaviour (there were a couple of episodes where he choked other children; in 2005 there were sexual overtones to the escalation in his behaviour; he has been aggressive to his child and youth care worker, Doug Crozier.
- unpredictability and impulsivity (he has demonstrated some suicidal ideation)
- discipline problems (Tyvon has been suspended from school on a few occasions due to his behaviour)
While the DAC assessors did not witness any of the extreme behaviour outlined, they only spent a portion of a day assessing Tyvon’s needs and the situation in which he and his mother live. They spent most of their time with Ms. Lewis. It is entirely possible that they would not have witnessed Tyvon’s challenging behaviour given that the very nature of his impairment results in his behaviour being erratic and unpredictable. The fact that they did not witness one of his outbursts or his behavioural problems does not lead me to question all of the other consistent evidence of Tyvon’s issues.
I am also struck by the uniform evidence provided by the various members of Tyvon’s rehabilitation team about the need for continuous supervision. In particular, Dr. Rincover, Tyvon’s former psychologist, testified that an absence of supervision with Tyvon seemed to lead to high risk behaviours and other behavioural problems and that he needed to be watched at all times for his own safety and the safety of others. Mr. Crozier spoke of the need to provide direct supervision to Tyvon at all times when with him at school. In fact, at one point the school required that Tyvon be supervised at all times. Further, Mr. Crozier reported that more incidents of aggression occurred before he began working with Tyvon in the school setting. Dr. Alina Kaminska, a neuropsychologist, testified that it was impossible to predict when Tyvon’s outbursts would occur and agreed that he and others were at risk when he was in this state. She concluded that, up to this point, there had been no progression in Tyvon’s ability to be independent.
Moreover, the evidence was also that much time and effort has been devoted to, and continues to be spent, training Ms. Lewis to provide supervision and direction appropriate to Tyvon’s particular needs because his behavioural issues require specific behavioural management strategies. A lot of Dr. Kaminska’s intervention has been to provide Ms. Lewis with support and management and parenting strategies for Tyvon. Mr. Crozier has worked with Ms. Lewis as has Tyvon’s social worker, Jim Pesant.
The DAC assessors, an occupational therapist and a registered nurse, concluded that he did require additional supervision compared to other children his age without the same impairments. Understandably, in order to deal with the practical problem of having to assign actual time to this task of additional supervision, the assessors relied upon the reports of Ms. Lewis. While the reports of Ms. Lewis to the DAC assessors are in some cases at odds with her oral testimony, good portions of her evidence were consistent and I find that information conforms to the other evidence before me about Tyvon’s behaviour. Ms. Lewis testified that Tyvon gave her no trouble before the accident whereas now she is unable to have a life of her own as she is taking care of him all of the time. She described having to sit with him to ensure that he eats, having to get him from school because he has misbehaved, having to spend all of the weekend with him, having to cue him constantly because he always does things he is not supposed to do.
Furthermore, it is clear from the evidence that Tyvon’s impairment has indeed resulted in his need for much assistance with his daily activities, some of which is covered by benefits paid by Lloyd’s:
- While he attends a regular elementary school, Tyvon is in a special education class for half a day each day
- Tyvon sees a psychologist on a regular basis
- Tyvon takes prescription medication to treat and control his ADD, to assist him to sleep, etc.
- Tyvon has a child and youth care worker, Doug Crozier, with whom he spends 3 full-days and 2 half-days per week at school
- Tyvon is assisted by a speech language pathologist
- Tyvon and his mother are assisted by a social worker
- Tyvon has the regular input of his case manager, Ellen Lipkus, to coordinate all of his care and track his progress.
In my view, the question that must be answered in order to adequately determine the amount of attendant care that Tyvon needs is what is the nature and degree of supervision that Tyvon requires? It is the answer to this question that determines the amount of attendant care that is necessary.
I find that the evidence is compelling and leads inevitably to the conclusion that Tyvon requires supervision that is continuous and vigilant. The evidence of Tyvon’s treatment and rehabilitation team members is completely consistent in respect of the circumstances during which he requires supervision and the amount of supervision he needs. They are unanimous that he cannot be left alone to handle situations on his own, both to ensure his safety and that of others but also because his impairment and his rehabilitation demand the management of his behaviour in virtually all circumstances. Management of behaviour requires active supervision that includes cueing and correction of behaviour and encouragement.
I agree with Dr. Kaminska that the provision of this kind of supervision requires the uninterrupted availability of the parent to respond as the need arises rather than the intermittent supervision that would suffice with an unimpaired child of similar age.
For these reasons, I find that the manner in which Ellen Lipkus calculated the necessary attendant care is closer to the truth of the situation in Tyvon’s case. In fact, a closer examination of the DAC’s approach to the calculation of attendant care time, and the implications of that approach, also leads me to conclude that Ms. Lipkus’ approach is the only rational way in these circumstances to calculate attendant care.
While the DAC assessors made a valiant attempt to calculate the additional time needed having consideration to all of the evidence, there are some significant implications to their approach which are not accounted for nor recognized. For example, their approach was to assign an extra minute, or whatever other amount of time was determined additionally necessary, for every 5 to 10 minute increments of an hour. This method is awkward at best and, at worst, is artificial and impossible to implement on a practical level. One cannot pay an attendant care provider for a minute of their time every 5 to 10 minutes of the day. Beyond this, even if one could find a way to pay for a service provider’s time in this way, the result would be that the service provider could not be available to do any other work – there are very few activities or tasks that one can accomplish in 5 to 10 minute increments – and this, in my view, is exactly Tyvon’s case. In order to provide the kind of attendant care that Tyvon really needs, a service provider must be available to him so frequently and in such a way that they are practically prevented from being engaged in any other real activity.
Therefore, Tyvon is entitled to attendant care benefits as they have been calculated by Ellen Lipkus in her two Forms 1, in the amount of $1760.81 from November 23, 2004 to July 26, 2006 and in the amount of $3024.26 from July 27, 2006 and ongoing, less amounts credited to Lloyd’s for the time when Tyvon was otherwise supervised.
Is Tyvon entitled to be paid the higher amounts for attendant care that are in force as of March 1, 2006 with the amendments to the Schedule?
As of March 1, 2006, the hourly rates for the different levels of attendant care have been increased. With respect to Level 2 services, in particular, the rate is now $7.75 per hour. The applicable new Form 1 (now simply called an assessment of attendant care needs) states in its introduction:
Use this form to report the future needs for attendant care required by the applicant as a result of an automobile accident on or after March 1, 2006.
Tyvon asks that guidance be provided with respect to the application of the new rates for attendant care in his case. Further, Tyvon asserts that Lloyd’s was obligated to begin paying the attendant care benefits as indicated within 10 days of receiving his most recent Form 1 as it failed to provide the response required by the amended section 39 of the Schedule.
Lloyd’s argues that in March 2005, there was a pending dispute regarding the amount of attendant care benefits payable in Tyvon’s case. As indicated by the Schedule at the time, Lloyd’s was bound by the DAC conclusion pending resolution of dispute. The application for arbitration in this case was filed in January 2006. Lloyd’s asserts that once the parties were engaged in the dispute resolution process, further applications for the same benefit need not have been considered, nor could Lloyd’s have been bound by a whole new set of rules for the processing of those applications. The whole point of the dispute resolution process is to reach a conclusion about how these very benefits were to be paid. Further, Lloyd’s asserts that an examination of the Superintendent’s Bulletin on this point clarifies matters. The Bulletin issued with respect to New and Revised Accident Benefit Claims Forms indicates that the Form 1, Assessment of Attendant Care Needs, is no longer printed as part of the Schedule. A revised version of this form with updated hourly rates will be used for accidents on or after March 1, 2006. (my emphasis)
The plain meaning of these words appears to be that the revised form with its updated hourly rates is to be used for accidents on or after March 1, 2006 not benefits claimed on or after March 1, 2006. Tyvon’s accident occurred on October 30, 2001. I am not satisfied that either the new rates and/or the new provisions of the Schedule are applicable in the circumstances of Tyvon’s case.
Is Tyvon entitled to $3150.61 for the cost of a vocational assessment dated August 31, 2005 conducted by David Antflick?
Tyvon argues that he should receive payment of the expense of a vocational assessment conducted by David Antflick and dated August 31, 2005 because the assessment speaks to the need for Tyvon’s support mechanisms and ongoing rehabilitation. The assessment report assisted Lloyd’s in determining Tyvon’s vocational needs and was therefore not premature.
Lloyd’s argues that this assessment is not about an issue compensable within the scheme of the Schedule as it is meant to deal with the type of education Tyvon would have been able to achieve had he not had the accident, and the type of education or employment he will achieve in the future. In addition, the expense was submitted for pre-approval and sent to a fast track DAC4 and the DAC found it not reasonable and necessary as an educational planning assessment had recently been done in Tyvon’s case.
I agree with the conclusions of the DAC and, in fact, had very little evidence before me that a vocational assessment at this stage is appropriate especially where an educational planning assessment had recently been done. Further, I agree with Lloyd’s that this particular assessment does not appear to deal directly with a statutory accident benefit and it is therefore not reasonable and necessary in the circumstances.
EXPENSES:
The parties did not address the issue of expenses. I encourage the parties to resolve their claims for expenses. Should they be unable to do so, they may request an assessment of expenses before me in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003), no later than 30 days after the date of the receipt of this decision.
June 14, 2007
Rosemary Muzzi Arbitrator
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Non-Marine Underwriters, Mbrs. Of Lloyd’s pay attendant care benefits in the amount of $1760.81 per month from November 23, 2004 to July 26, 2006 and in the amount of $3024.26 per month from July 27, 2006 and ongoing, less amounts credited to Lloyd’s for the time when Tyvon Whyte was otherwise supervised, and less amounts already paid by Lloyd’s for attendant care on a monthly basis during the periods affected by this Order
June 14, 2007
Rosemary Muzzi Arbitrator