Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 183 FSCO A06–001001

BETWEEN:

SOUSSANNA BOBROVA Applicant

and

AVIVA CANADA INC. Insurer

Before: Robert Bujold Heard: May 14, 15 and 16, 2007, at the offices of the Financial Services Commission of Ontario in Toronto. Appearances: Steven Sieger for Ms. Bobrova Joseph Griffiths for Aviva Canada Inc.

Issues:

The Applicant, Soussanna Bobrova, was injured in a motor vehicle accident on April 28, 2004. She applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Although the pre-hearing letter of December 12, 2006 lists several issues as being in dispute, including medical benefits and the cost of examinations, Ms. Bobrova confirmed that all issues were either resolved or withdrawn and the only issue to proceed in this arbitration related to the quantum of attendant care for the period April 2005 to September 2005, not April 2005 to April 2006 as stated in the pre-hearing letter.

At the conclusion of the hearing, Aviva filed a schedule of attendant care benefits claimed and paid² showing that attendant care for April and May 2005 had been paid as claimed in the amount of $3,588.84. This was evidenced by an Explanation of Benefits Payable (OCF-9) dated October 3, 2005.³ Ms. Bobrova did not dispute that payment had been received as per the OCF-9.

The issue in this hearing is therefore as follows:

Is Ms. Bobrova is entitled to attendant care benefits beyond the $67.44 ($16.86 per month) paid to her for the period June 2005 to September 2005 inclusive, pursuant to section 16 of the Schedule?

Result:

Ms. Bobrova is entitled to an attendant care benefit in the amount of $168.92 per month for each of June, July, August and September 2005 with interest on each payment, calculated pursuant to the Schedule, from 30 days after the submission of each month’s expense.

EVIDENCE AND ANALYSIS:

Background

Ms. Bobrova is a married 56 year old woman who lives with her husband, Oleg Dourmanov, in a one floor, two bedroom condominium in Thornhill. She is the mother of one child, an adult daughter, Yulia Biberberg. Ms. Biberberg has two children of her own and lives nearby.

Prior to the accident of April 28, 2004, Ms. Bobrova worked full time as a pharmacy technician at Sunnybrook and Women’s College Health Sciences Centre. She also spent time babysitting her two grandchildren several times per week.

At the time of the accident, Ms. Bobrova was a pedestrian attempting to cross Steeles Avenue near Emerald Lane on a green light. Near the middle of the street, Ms. Bobrova was struck by a vehicle making a left hand turn.

Ms. Bobrova was taken by ambulance to North York General Hospital where it was determined that she had sustained a fracture of her left lateral tibial plateau and pelvis fracture. Ms. Bobrova also sustained lacerations to the left side of the head with a possible brief period of loss of awareness. Dr. Rumble, orthopaedic surgeon, performed an open reduction and internal fixation of the lateral tibial plateau. Ms. Bobrova was discharged on May 3, 2004 once she was able to feather-weight bear with the use of a knee splint and crutches. Her left leg remained in an immobilizer.

Chronology of Assessments and Consultations[^4]

On the day of her discharge from hospital, Ms. Bobrova was seen by Anke Savchenko, Registered Nurse, for an in-home assessment which included the preparation of a Form 1. Ms. Savchenko recommended attendant care of $1,794.42 per month, with costs calculated by multiplying the number of hours of recommended care for each level by the prescribed hourly rates for each level.

The single most significant attendant care need identified in the report was 2100 minutes (or 35 hours) per week for the Level 2 line item “Attendant Care on an Intermittent Basis”. The description for this line item, as provided in the Form itself, reads: “Applicant lives alone or is left alone in the day, determine the degree to which the applicant may be dependent on other (for example, meals, laundry, housekeeping).”

Within the body of her report, and separate from her assessment of attendant care needs, Ms. Savchenko specifically identifies the need for 900 minutes (or 15 hours) of assistance with household tasks consisting of meal preparation, laundry and various other housekeeping tasks. Since “meals, laundry, housekeeping” were covered by Ms. Savchenko under her assessment of housekeeping needs, it is unclear what specific attendant care was contemplated with respect to the 35 hours per week assessed under the heading of “Attendant Care on an Intermittent Basis”. The body of Ms. Savchenko’s report does not really provide any information on this point. She does, however, note that Ms. Bobrova presented with complaints of headaches and dizziness in addition to the obvious pain and mobility issues related to the left leg and pelvic injuries. Given these complaints, I expect the bulk of the 35 hours related to general supervision to ensure Ms. Bobrova’s safety.

Aviva paid attendant care benefits in accordance with the Form 1 prepared by Ms. Savchenko and without any further assessment of Ms. Bobrova’s attendant care needs until December 17, 2004 when Ms. Wendy Yu of Crawford Health Management conducted an occupational therapy assessment at Aviva’s request. Ms Yu recommended a tub transfer bench and versa frame for the toilet to assist with pain management and to ensure Ms. Bobrova’s safety and independence with transfers, but otherwise concluded that Ms. Bobrova was independent with respect to her self care. The Form 1 completed by Ms. Yu, dated December 22, 2004, therefore assessed Ms. Bobrova’s monthly attendant care benefit at “$0.00”. Ms. Yu did, however, recommend 5-6 hours of assistance with various indoor housekeeping tasks including complex meal preparation and clean up, and also recommended various assistive devices to help with housekeeping activities.

In addition to her injuries and complaints related to her left leg and pelvis, there are certain other specific complaints that bear further mention.

Ms. Bobrova reported to Ms. Yu left hand weakness and numbness in the 3rd to 5th digits of her left hand. She advised Ms. Yu that she experienced the onset of these symptoms approximately one month post-accident and that she had been referred to a neurologist, Dr. Serebrin.

Ms. Bobrova was initially assessed by Dr. Serebrin on August 5, 2004 and reassessed on December 6, 2004 (shortly before the occupational assessment by Ms. Yu) at which time he noted “I was also glad to learn that her symptoms of weakness and sensory impairment that I had subscribed to a subacute C8/T1 radiculopathy had unequivocally if subtotally improved in the intervening four months”. He further noted that Ms. Bobrova agreed to forego further electrophysiological studies since they both agreed that there had been unequivocal improvement in her condition.

Ms. Yu’s functional testing of Ms. Bobrova’s left hand led her to conclude that “although slight limitation was noted with left hand dexterity and grip strength, left hand use was demonstrated to be functional.”

A matter of greater concern appears to have been Ms. Bobrova’s ongoing complaints of dizziness. Ms. Bobrova advised Ms. Yu that she had consulted an ENT specialist, Dr. Noyek, who had identified balance problems. In fact, Ms. Bobrova first saw Dr. Noyek on November 4, 2004 and again on December 16, 2004, the day before Ms. Yu’s assessment. Dr. Noyek concluded that Ms. Bobrova had sustained benign positional vertigo as a result of a concussive injury sustained in the accident. He noted that she was experiencing vertigo on a daily basis associated with certain head positions and sudden movements. It does not appear that any specific treatments or recommendations were prescribed and Ms. Bobrova was advised that her dizziness was likely to persist.

Ms. Yu did note Ms. Bobrova’s report of dizziness at the end range of neck extension and lumbar flexion during functional testing. With respect to specific activities of daily living affected by dizziness, Ms. Bobrova reported difficulty with rinsing her hair due to neck flexion. Ms. Yu recommended that Ms. Bobrova attempt to maintain her head in a neutral position with proper positioning of the hand held shower head.

Ms. Bobrova also reported dizziness with reaching high shelves. Ms. Yu stated that she observed Ms. Bobrova reach first and second level high shelves without dizziness reported. Still, Ms. Yu did recommend that required items be reorganized to easily accessible areas.

Ms. Yu also noted that Ms. Bobrova had been seeing a psychiatrist, Dr. Yaroshevsky, since September 21, 2004 due to her inability to sleep, nightmares she was having related to the accident and her inability to cross the street due to her fear of cars.

As stated, Ms. Yu did not recognize any specific attendant care needs as a result of Ms. Bobrova’s observed or reported impairments related to her left leg, pelvis, left hand, dizziness or psychological issues.

Ms. Bobrova disputed Ms. Yu’s assessment of her attendant care needs and requested an assessment of her attendant care needs at a designated assessment centre. In accordance with section 39(9) of the Schedule, Aviva continued to pay Ms. Bobrova an attendant care benefit of $1,794.42 per month, in accordance with Ms. Savchenko’s initial Form 1, pending receipt of the report of the DAC.

On February 22, 2005, and following ongoing complaints of pain, Ms. Bobrova underwent surgery to remove the hardware previously inserted in her left leg.

At the request of the adjuster on the file, Ms. Yu reassessed Ms. Bobrova 10 days post-surgery on March 4, 2005 and provided an occupational therapy progress report dated March 8, 2005. However, and again at the adjuster’s request, a Form 1 was not completed, presumably because the attendant care DAC assessment was scheduled for later that month and Aviva continued to pay the full $1,794.42 per month in accordance with the initial Form 1.

At the time of the March 4, 2005 reassessment, Ms. Bobrova reported increased pain in her left knee and left lower leg post-surgery. She continued to report left hand limitations, as well as an increase in her headaches and ongoing problems with dizziness, nausea and decreased balance. Ms. Bobrova reported experiencing several episodes daily lasting a few seconds to a few minutes. Ms. Bobrova also advised Ms. Yu that she would be commencing psychotherapy through Dr. Yaroshevsky’s office.

During the March 4, 2005 reassessment, Ms. Yu found Ms. Bobrova to have demonstrated independence with respect to tub transfers with continued use of her tub transfer bench. Ms. Bobrova reported requiring assistance from her husband with holding the hand held shower in order to avoid water splashing outside the bathtub, as the shower curtains had been replaced with shower doors that would not close with the tub transfer bench. Ms. Bobrova reported independence with dressing with the exception of donning her left sock. A sock aid was recommended. Sleep problems were also noted – waking 4-5 times per night, as a result of pain in her leg from unintentional moving and nightmares.

As stated, a Form 1 was not prepared in connection with this assessment. Ms. Bobrova continued to receive attendant care benefits of $1,794.42 per month in accordance with Ms. Savchenko’s initial Form 1. Ms. Yu did, however, recommend an increase in Ms. Bobrova’s housekeeping assistance to 10 hours per week including all meal preparation tasks.

On March 30, 2005, Ms. Bobrova was assessed by Ms. Debbie Westbrook, a physiotherapist with West Park Heathcare Centre in connection with an attendant care designated assessment. According to Ms. Westbrook, Ms. Bobrova reported ongoing intermittent, dull pain in her left knee. Ms. Bobrova also reported dizziness a few times daily lasting for a few seconds, aggravated by a change in position or looking up or down. Numbness in the left lateral leg and left ulnar area were also reported. According to the report, Ms. Bobrova had recently started to use public transit to go to her family doctor, although she continued to experience nervousness when doing so.⁵

During the assessment, Ms. Bobrova was reportedly observed performing various functional activities or simulations thereof related to personal care and mobility including dressing, undressing, grooming, and bathroom and bedroom hygiene.

With respect to certain items for which Ms. Bobrova identified herself as requiring assistance, Ms. Westbrook found that Ms. Bobrova demonstrated the ability to transfer on and off the tub transfer bench without any report of dizziness. Ms. Westbrook also found that Ms. Bobrova demonstrated the functional ability necessary to remove/replace bedding. With respect to assistance holding the hand held shower, Ms. Westbrook concluded that such assistance was not recommended on the basis that Ms. Bobrova was “observed to hold the long handled shower hose with the left hand and to use the right hand to facilitate rinsing, even while stating that she could not do this.” However, it is not clear from Ms. Westbrook’s report whether Ms. Bobrova reported, or whether Ms. Westbrook considered, the issue of assistance from the perspective of water splashing outside the bathtub due to the tub transfer bench preventing the shower doors from closing.

As a result of her assessment, Ms. Westbrook concluded that Ms. Bobrova had demonstrated the requisite physical abilities to complete all attendant care tasks with the exception of lifting the tub transfer bench into/out of the tub. Ms. Westbrook calculated 2 minutes daily for assistance with lifting the tub transfer bench and prepared a Form 1 with a total assessed monthly attendant care benefit of $16.86 per month.

Dr. Zarnett, orthopaedic surgeon, also conducted an orthopaedic assessment in connection with the designated assessment on April 4, 2005. He performed some functional testing and, although he found that Ms. Bobrova did have evidence of impairment of her left knee, he concluded that “from an orthopaedic perspective, [Ms. Bobrova] demonstrated functional abilities that enable her to resume her self-care tasks”. He admitted, however, that he was not able to comment on the neurological symptoms in the left hand and the symptoms of dizziness, as they were beyond his area of expertise.

On April 29, 2005, four days after the completion of the DAC report, Ms. Bobrova underwent an MRI of her left knee that revealed a tear of the meniscus. Arthroscopic surgery to repair the torn meniscus was scheduled for September 29, 2005.

Dr. Yaroshevsky, Ms. Bobrova’s treating psychiatrist, issued a report on May 12, 2005 wherein he reports that Ms. Bobrova developed problems with sleep, appetite, headaches and dizziness. She reported worsening depressive symptomatology with difficulty concentrating and focusing on tasks. She reported feeling better in the presence of other people and “when in the presence of her family, she tends to feel supported.” Dr. Yaroshevsky concluded that Ms. Bobrova was suffering from Post Traumatic Stress Disorder with Depressive Symptomatology for which he recommended psychotherapy and pharmacotherapy.

I also briefly note two section 42 assessments conducted by Aviva which, although not asked to comment on attendant care, are medical assessments conducted closest in time to the commencement of the period in dispute (June to September 2005).

On May 13, 2005, Dr. Moddel, neurologist, conducted an examination in connection with Ms. Bobrova’s entitlement to weekly income replacement benefits and housekeeping and home maintenance expenses. Dr. Moddel concluded that “the only definite neurological findings are compatible with left ulnar nerve neuropathy.” He also concluded that her history is quite compatible with post-traumatic positional vertigo. Nevertheless, from a neurological point of view, he did not find that Ms. Bobrova was substantially unable to return to her pre-accident employment or that she suffered a substantial inability to perform her pre-accident housekeeping and home maintenance tasks.

On May 18, 2005, Dr. Soriano, orthopaedic surgeon, examined Ms. Bobrova on behalf of Aviva and concluded “from a musculoskeletal perspective, this lady continues to have significant problems with her left knee. She continues to have significant knee pain. Her knee has difficulty functioning. Her pelvis is no longer an issue.” He concluded that she was not able to return to her pre-accident employment. Dr. Soriano did state, however, that “she is now able to function independently caring for herself” but it is not at all clear from his report whether he questioned Ms. Bobrova on specific attendant care functions, e.g. whether she needed assistance with the tub bench or the need for assistance with hair rinsing, etc.

On June 16, 2005, Ms. Bobrova had the misfortune of falling on a slippery wet floor in the lobby of her apartment building resulting in a broken left ankle which was treated with a cast. According to Ms. Bobrova’s evidence and the evidence of her husband, she was using a single-point cane at the time of the fall.⁶

On September 29, 2005, Ms. Bobrova underwent the arthroscopic surgery to repair the torn left meniscus that had been discovered in the MRI of April 29, 2005.

On September 30, 2005, Sarah Kovacs, occupational therapist with Crawford Healthcare Management, conducted an occupational therapy reassessment at Aviva’s request. This coincides with the end date of Ms. Bobrova’s claim for attendant care.

As the reassessment was conducted just one day post-surgery to repair the meniscus tear, Ms. Kovacs, not surprisingly, noted that Ms. Bobrova’s left knee was extremely painful to touch, aggravated by changing positions in bed and weight-bearing. Ms. Kovacs noted that the left ankle was still moderately swollen from the slip and fall injury on June 16, 2005.

Ms. Kovacs noted that “Ms. Bobrova reports extreme dizziness when moving her head in all directions as well as when ambulating. The claimant reports that the dizziness that she previously reported, increased after her fall in June of 2005. At this time, Ms. Bobrova reports that the dizziness takes a few minutes to subside. Overall, the constant dizziness has reportedly been the most limiting factor to her return to normal activities of daily living.”

Minor improvement with the 3rd to 5th digits of the left hand were reported and Ms. Kovacs found left hand grip strength to remain functional.

In terms of personal care activities at this time, Ms. Kovacs found that Ms. Bobrova demonstrated independence with bathtub transfer with the continued use of the tub transfer bench. Ms. Kovacs also noted that Ms. Bobrova continued to receive assistance from her husband to hold the hand held shower, noting that the shower doors cannot close when using the transfer bench. Ms. Kovacs also noted that Ms. Bobrova needed assistance to support and maneuver her left leg past the shower door. Difficulty dressing the lower extremities was noted, as was sleep disruption due to pain in her lower leg and nightmares.

Ms. Kovacs prepared a Form 1 recommending $326.61 per month of attendant care. The single most significant attendant care need identified in the report was 140 minutes (or 2.33 hours) per week for the Level 3 line item “Bathing – bathes and dries applicant”. This is the description provided in the Form.

The Law

Subsections 16(1) through 16(4) of the Schedule provide as follows:

Attendant Care Benefit

16(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit. O. Reg. 403/96, s. 16 (1).

(1.1) Despite subsection (1), no attendant care benefit is payable to an insured person whose impairment comes within the Grade I Whiplash Guideline or the Grade II Whiplash Guideline if the accident occurred after April 14, 2004. O. Reg. 458/03, s. 6 (1).

(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. O. Reg. 403/96, s. 16 (2).

(3) Subsection (2) does not apply to expenses for which payment may be obtained under clause 14 (2) (g), 15 (5) (k) or 24 (1) (c). O. Reg. 403/96, s. 16 (3).

(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1. O. Reg. 403/96, s. 16 (4).

As stated in subsection 16(4), the amount of the attendant care benefit shall be determined in accordance with Form 1.

In Valle and Aviva Canada Inc.⁷, Arbitrator Leitch found that the applicant’s oral evidence could only provide partial support for an attendant care claim because it had not been prepared or presented in line with the specific categories or at the specific rates stipulated in Form 1. Further, the Arbitrator found the applicant’s evidence unreliable in relation to the amount of attendant care that was reasonable and necessary. For these reasons, it was found that the oral evidence could only be relied upon for the limited purpose of establishing that the applicant had incurred or had agreed to incur the attendant care found reasonable and necessary in the Form 1.

As I read Valle, Arbitrator Leitch may have considered the oral and other documentary evidence of the applicant to establish all aspects of her claim for attendant care (and not just for the limited purpose of establishing that expenses were incurred), if the applicant had adduced reliable evidence, properly prepared and presented in line with the services and rates stipulated in a Form 1. The problem in Valle is that no such evidence was presented.

In A.K.P. and ING Insurance Company of Canada⁸, Arbitrator Leitch found that it was not enough for the applicant to establish that attendant care is required or received. The applicant also has the burden to establish a basis for calculating the entitlement. Arbitrator Leitch was not prepared to simply assume that certain services were required or arbitrarily assign time allocations to them as required by Form 1. In that case, the evidence also established that the applicant had likely improved over time and the evidence therefore also needed to provide a basis upon which the diminishing need could be taken into account. Again, the evidence fell short.

While noting the need to calculate the amount of the attendant care benefit in accordance with a Form 1, Arbitrator Muir in Buccellato (Estate) and Allstate Insurance Company of Canada⁹ found that the absence of a Form 1 may not be fatal to a claim for attendant care provided, at minimum, there is fairly detailed evidence of what services were provided, by whom and for what period of time. No such evidence was adduced in Buccellato and, as a result, Arbitrator Muir found he was unable to determine the value of services that were very likely provided to the applicant. He concluded that the Schedule did not provide him with discretion to speculate about the nature of services provided, the length of time they were provided or their cost in order to make an award that seems reasonable.

In my view, these cases and others¹⁰, have rightly found that, in addition to evidence that attendant care was reasonable, necessary and incurred, there must also be sufficient evidence upon which the arbitrator may determine how specific amounts claimed were reached. There must either be a Form 1 or, at minimum, reliable oral and other documentary evidence upon which the arbitrator can determine what services were provided, by whom and for what period of time, without engaging in undue speculation.

In my view, it makes good sense that the absence of a Form 1 that supports an applicant’s position should not, in itself, defeat the applicant’s claim. An applicant may not have the resources to secure his or her own Form 1 to challenge the insurer’s assessment and the assessment of an attendant care DAC. Further, an Application for Approval of an Assessment or Examination (OCF-22) may not be approved by the insurer and the proposed assessment may be found not reasonable and necessary by a Fast Track DAC, particularly where the insurer’s assessment and the attendant care DAC have been recently conducted. In that case, as here, the applicant may find him or herself at arbitration without a Form 1 that represents his or her position of the attendant care that should be payable for the period in dispute. I do not believe that subsection 16(4) was intended to preclude an applicant from advancing a claim for attendant care benefits unless he or she is able to reference a Form 1 that sets out his or her position of the correct amount owing. The real issue therefore, in my view, is not the form of the evidence, but the reliability and sufficiency of the evidence adduced by the applicant.

The Applicant’s Evidence and Submissions

i) The slip and fall of June 16, 2005

Ms. Bobrova is seeking attendant care benefits for the period June 2005 to September 2005 inclusive. It was not entirely clear from Ms. Bobrova’s evidence and submissions whether her claim for this period sought any attendant care that may have been necessitated by the injuries, specifically the broken ankle, she sustained in the slip and fall of June 16, 2005. There was some evidence that the fall may have been caused by, or at least contributed to by, her impairments sustained in the accident of April 28, 2004. There was also evidence from Ms. Bobrova, her husband and her daughter to the effect that the broken ankle had set Ms. Bobrova back to where she had been following the April 28, 2004 accident in terms of her need for attendant care. The suggestion, it seemed to me, was that Ms. Savchenko’s assessment of May 3, 2004 in the amount of $1,794.42 per month could be viewed as a reasonable basis for determining Ms. Bobrova’s attendant care needs for the period in dispute. In fact, Aviva cross-examined Ms. Bobrova on her attendant care needs following the fall compared to her needs following the motor vehicle accident using Ms. Savchenko’s Form 1 as a basis for comparison.

In her closing submissions, however, Ms. Bobrova made little reference¹¹ to the fall and the broken ankle. Rather, Ms. Bobrova focussed on her accident-related injuries and impairments. She argued that her attendant care needs, though diminishing slowly over time, also increased when the hardware was removed from her leg in February 2005. Further, she argued that the onset of numbness in the 3rd to 5th digits of her left hand and left hand weakness, her persistent problems with vertigo and nausea, her sleeplessness and fatigue, and her post-traumatic stress disorder with depression all evidenced an ongoing need for attendant care, up to and beyond the period in dispute, at the level assessed by Ms. Savchenko or, in any event, at a level exceeding the assessments by Ms. Yu in December 2004 or Ms. Westbrook in March 2005. Her submissions focussed heavily on what she saw as the deficiencies in the reports of Ms. Yu and the attendant care DAC.

In the event that Ms. Bobrova intended that her broken ankle, and any attendant care needs or increase in attendant care needs that may have arisen in consequence thereof, should be taken into account in my assessment of her attendant care needs, if any, caused by the accident of April 28, 2004, I decline to do so. Apart from the fact that it was not argued, at least not directly or vigorously, the evidence that the fall and resulting broken ankle was or may be viewed as accident-related was both equivocal and thin.

Interestingly, I note that the joint document brief includes a Designated Assessment Centre Referral, Plan and Summary Form (OCF-11) dated August 15, 2005 regarding an In-Home Assessment that had been requested in an OCF-22 dated July 8, 2005. The requested assessment was found by the DAC to be not reasonable and necessary due, at least in part, to the fact that “the current disputed OCF-22 identified an ‘ankle fracture’ which was not indicated elsewhere in the file in relation to the accident of April 28, 2004.” Unfortunately, the “abridged” correspondence in the joint brief includes very little during the period in dispute (June 2005 to September 2005) and does not include any correspondence between May 9, 2005 and October 4, 2005. If there were any letters or documented discussions regarding the slip and fall and whether it was causally related to the accident of April 28, 2004, I do not have that information before me.

Ms. Bobrova’s own evidence, the evidence of her husband and the clinical notes and records of her family doctor, Dr. Belavskya, all acknowledged that the lobby floor was slippery and wet. Ms. Bobrova and her husband speculated that the fall was at least contributed to by her weak knee. Dr. Doxey, a psychologist who conducted a psycho-vocational assessment and prepared a report dated October 23, 2006, stated that Ms. Bobrova attributed the fall “at least in part to her dizziness and unstable gait.” Dr. Noyek, the ENT specialist, confirmed in a report of November 20, 2006 that Ms. Bobrova was not having vertigo at the time, although he does note she reports that the fall was caused by leg control on a slippery surface. It would seem, therefore, that the wet and slippery floor is the only clear factor contributing to the fall. Whether, and to what extent, dizziness (which is both asserted and denied), unstable gait or leg control may have also contributed to the fall is unclear. In any event, I am not prepared on the limited and contradictory evidence to make a finding that there was an unbroken chain of causation between the accident of April 28, 2004 and the slip and fall of June 16, 2005. My assessment therefore of Ms. Bobrova’s attendant care needs between June and September 2005 excludes consideration of attendant care needs, if any, that may have arisen or increased as a result of the slip and fall of June 16, 2005.

ii) The Oral Testimony

Ms. Bobrova gave an account of her physical and psychological impairments from the date of loss onward that was largely consistent with the medical evidence. She presented as a credible witness and gave her evidence in a forthright manner. Ms. Bobrova described the onset of numbness in the fingers of her left hand, the ongoing difficulties with dizziness and nausea, her sleeplessness and fatigue and, of course, the mobility issues and pain in her left leg and knee. Although Ms. Bobrova noted improvement over time with her mobility, she also noted that there had been a number of setbacks, i.e. the surgery to remove the hardware in February 2005, the slip and fall in June 2005 and the surgery to repair the left meniscus tear in September 2005. In each case, Ms. Bobrova experienced increased pain, reduced mobility and consequentially an increase in the level of care she says she required.

It is on this last point that Ms. Bobrova was required to focus her evidence and upon which I must focus my task. As Arbitrator Leitch noted in A.K.P., “my task was not to determine whether or not Ms. P experienced mobility problems during the period in question. It was rather to determine whether or not she required the services of an aide or attendant to deal with those problems.” I agree. This is not to say that mobility problems or functional ability is not relevant, but simply that an assessment of attendant care needs must go further.

In this case, it was clear from the evidence of Ms. Bobrova and the medical evidence (which I have reviewed in considerable detail) that Ms. Bobrova sustained serious injuries which resulted in mobility restrictions, functional impairments and pain. As well, she experienced ups and downs as a result of intervening medical events and misfortune.

The question, however, is whether her accident-related impairments resulted in a reasonable and necessary requirement for the services of an attendant or aide during the period in dispute. In that regard, I note that Ms. Bobrova disputed the Form 1 prepared by Ms. Yu on December 22, 2004 (assessed at $0.00) and the Form 1 prepared by Ms. Westbrook in connection with the designated assessment on March 30, 2005 (assessed at $16.36 per month). However, it is for the period subsequent to these assessments, i.e. June to September 2005 inclusive, for which Ms. Bobrova seeks payment of attendant care expenses and it is therefore for this time period that Ms. Bobrova must establish, on a balance of probabilities, that she required specific attendant care in some amount that is possible to determine with some precision.

I found Ms. Bobrova’s evidence regarding the need for attendant care specific to the relevant period largely vague and imprecise, as well as brief. She acknowledged that from the date of her second surgery (February 22, 2005) to the date of the slip and fall (June 16, 2005) that “there was improvement”, but that she “still had not recovered completely and needed a lot of help to live her days through.” She testified that she felt scared to go around the apartment in case she fell and that, “psychologically, she liked to have someone around”. She felt more safe surrounded by family. Mobility issues and dizziness appear to have left Ms. Bobrova feeling unsafe and anxious when alone. The evidence suggested that her depression, sleeplessness and resulting fatigue may have contributed to or exacerbated those feelings.

Ms. Bobrova referred to the period after the fall as a “disaster” that set her back to where she was a year ago. She also testified that her dizziness got worse after the fall. On cross-examination, Ms. Bobrova agreed that the need for attendant care services had been slowly going down after the February surgery and rose again after the fall. However, Ms. Bobrova did identify help with showering, meal preparation and bed making as items for which she consistently required some level of assistance prior to and beyond the period in dispute.

Ms. Bobrova’s daughter, Yulia Biberberg, also testified at the hearing. She confirmed that for the period in dispute, most of the attendant care was provided by her father. She would help if her father had to step out, but most of the assistance she provided at this time was limited to housekeeping and home maintenance. Ms. Biberberg testified that both she and her father had initially helped with attendant care in the first few months following the accident, but they had divided these duties from or about January 2005 with Mr. Dourmanov assuming attendant care and Ms. Biberberg assuming housekeeping duties.

Ms. Biberberg testified that there was never a time that her mother did not need some level of personal care. Again, however, the nature and extent of the personal care that may have been required during the period in dispute was somewhat vague. Ms. Biberberg testified that her mother’s level of care varied as her condition varied. She acknowledged that her mother’s condition generally improved over time, but identified the broken ankle as a point in time when things “started over.” However, consistent with her mother’s evidence, Ms. Biberberg identified assistance with showering, meal preparation and bed making as areas where there had been an ongoing need for assistance.

Ms. Bobrova’s husband, Mr. Dourmanov, testified regarding the attendant care he provided to his wife. He acknowledged a rise and fall in Ms. Bobrova’s attendant care needs over time, noting improvement to the date of the fall. He testified that after the broken ankle “things got worse” and Ms. Bobrova was “feeling bad psychologically.” With respect to understanding specific assistance that was provided over specific time periods, Mr. Dourmanov was not particularly helpful. He confirmed that Ms. Bobrova completed the attendant care submissions and that he did not keep any of his own notes. He maintained that he completed the services listed in the submissions, but also testified that submissions may not always have been a comprehensive list of all services provided. He also maintained the submissions reflected less time than actually performed.

Mr. Dourmanov testified that there has not been any period of time when Ms. Bobrova has not required some level of assistance with attendant care.

With respect to the four expense submissions for the period in dispute (June to September 2005 inclusive), I note that each is a handwritten list of such services as ‘helping with shower’, ‘helping get around’, ‘daily banking’, ‘grocery shopping and household shopping’, ‘cooking meals’, ‘driving to doctor’s appointments’, ‘helping with bed changing’, ‘laundry’. Not all items appear each month. The September submission separately itemizes two instances where Mr. Dourmanov drove his wife to medical appointments. The submissions are signed by Mr. Dourmanov but, as noted above, were prepared by Ms. Bobrova. There is no information as to which services were provided on which dates or the amount of time that was spent on each task. Rather, there is one number on each form that represents the total number of hours spent on attendant care for that month — June: 96 hours; July: 98 hours; August: 98 hours; and September: 86 hours. I note that the submission for the month prior to slip and fall, lists the total number of hours spent on attendant care at 100 hours. There is actually a decrease in the number of hours submitted for June when the slip and fall took place. In fact, there is little or no correlation between the number of hours submitted and the medical or other events that one would expect to affect Ms. Bobrova’s needs for the entire period from January 2005 to September 2005 where the submitted hours range from a low of 86 hours in September and a high of 100 hours in both February and May. Although the submissions likely represent a fair, though general, description of the type of care Mr. Dourmanov provided to Ms. Bobrova, I do not find these submissions to be reliable as a basis for determining the amount of care received during the period in dispute.

Ms. Bobrova submits that Aviva did not ever advise her that the attendant care submissions were in any way deficient or that further and better information was required. They were estimates which appeared to meet with Aviva’s approval. Aviva, for its part, maintains that it did not pay on the basis of Ms. Bobrova’s handwritten submissions, but rather on the basis of the Form 1s. When the dispute regarding her attendant care benefits arose, Aviva did not dispute its obligation to pay on the basis of deficiencies in the submissions. Aviva’s position was again based on the Form 1s. In fact, Aviva has always paid in accordance with Form 1s and did not resist payment, at any time, on the basis of deficiencies in the submissions.

I am not convinced that Aviva had an obligation to advise Ms. Bobrova that it required more detailed submissions for the period in dispute, when the matter was being disputed on other grounds and the only apparent purpose for requesting more detailed submissions at that time would be to try and help Ms. Bobrova prepare better records for the arbitration. I am not prepared to find that Aviva’s obligation to assist Ms. Bobrova extends that far. In any event, it was open to Ms. Bobrova to rehabilitate the deficiencies in her expense submissions, and to challenge the Form 1s she disputes, through oral and other documentary evidence. Apart from the one item noted below, I find that Ms. Bobrova did not provide sufficiently detailed evidence upon which I could conclude on a balance of probabilities that she required a certain amount of specific accident-related attendant care during the period in dispute.

Ms. Bobrova’s family doctor, Dr. Belyavskaya, also testified. She presented as a strong advocate for her patient. She referred to her clinical notes and records and recounted Ms. Bobrova’s medical history since the accident. She confirmed the various physical and psychological injuries and impairments sustained by Ms. Bobrova as a result of the accident. She also referred to the reports of specialists within her file. There was little, however, that dealt directly with the way in which Ms. Bobrova’s physical and psychological impairments translated into a specific need for attendant care. Dr. Belyavskaya did not conduct an occupational therapy or attendant care assessment.

iii) The Applicant’s Submissions

Ms. Bobrova submitted that she should be entitled to attendant care for the period in dispute calculated on one of three bases:

$1,777.56 per month (representing the original Form 1 amount of $1,794.42 per month less $16.86 per month paid pursuant to the DAC assessment) for each month from June through September 2005;
$1,777.56 per month for June 2005, then declining gradually each month thereafter until I meet up with the $326.61 per month calculated in the assessment on September 30, 2005 (based on the assumption that her condition would have improved over the period in dispute); or
some figure that I think is reasonable based on the number of hours for each month reflected in the attendant care expense submissions, multiplied by the $10 per hour referred to in the covering letters that accompanied the submissions.

With respect to the last proposal, I do not find the attendant care expense submissions to contain sufficient information upon which I could reasonably base a calculation of any amounts that may be owing. Even with the oral evidence presented, the expense submissions fall short of the evidence needed to establish the amount of attendant care that was reasonable and necessary. Similar to the situation in Valle, I find that the submissions may only be relied upon for the limited purpose of establishing that the applicant had received the services listed.

Underlying the first two proposals is the assumption that the amount of attendant care identified by Ms. Savchenko in her initial assessment on May 3, 2004 was equal to or represented a fair approximation of the amount of attendant care that Ms. Bobrova still required between June and September 2005.

It was not entirely clear how Ms. Bobrova expected that I should arrive at this conclusion.

It seems that the thrust of her argument is that the confluence of her various physical and psychological impairments, as well as the February 22, 2005 surgery to remove the hardware and its sequelae, and the undiagnosed tear of the meniscus that was not dealt with until September 29, 2005, collectively resulted in a need for attendant care during the period in dispute that was comparable to the level of care that was needed when she was assessed by Ms. Savchenko on May 3, 2004.

Of course, the difficulty with this argument is that Ms. Savchenko’s assessment dealt with Ms. Bobrova’s attendant care needs based on her condition in the period immediately post-accident. Although I accept that Ms. Bobrova’s needs fluctuated from the date of the accident to the end of the period in dispute, and may, at times, approximated the initial level of care required, I am not prepared to arrive at the conclusion that, in June 2005, Ms. Bobrova required $1,777.56 per month in attendant care. This would be mere speculation. There is simply no connection, in my view, between the attendant care assessed in May 2004 and any assistance Ms. Bobrova may have required between June and September 2005.

Ms. Bobrova also submitted that the assessments by Ms. Yu on December 17, 2004 and the DAC assessment (by Ms. Westbrook on March 30, 2005 and Dr. Zarnett on April 4, 2005) were flawed.

With respect to Ms. Yu, Ms. Bobrova pointed to the fact that no medical documents were received and reviewed as part of Ms. Yu’s assessment. She also argued that Ms. Yu ignored her own findings, acknowledging functional limitations and recommending assistive devices, yet finding Ms. Bobrova to be independent with self-care. Ms. Bobrova also submitted that Ms. Yu had erroneously placed certain items of attendant care under housekeeping.

With respect to the attendant care designated assessment, Ms. Bobrova submitted that it was insufficient to use an orthopaedic specialist and physiotherapist to conduct the assessment given Ms. Bobrova’s symptomatology of dizziness, hand numbness and her psychological difficulties.

Dr. Zarnett’s orthopaedic assessment was also challenged as ignoring his own findings with respect to functional limitations of the left knee, the risk of developing post-accident arthritis and difficulties with prolonged standing, walking, kneeling, squatting and bending.

Ms. Westbrook’s assessment was challenged, inter alia, for not being conducted in Ms. Bobrova’s home environment, for ignoring Ms. Bobrova’s nervousness using public transportation and for paying short shrift to her dizziness. Ms. Bobrova specifically identified independence with feeding as an item which Ms. Westbrook got wrong.

Aviva took issue with Ms. Bobrova’s attempt to impugne the assessments of Ms. Yu and the attendant care DAC in her closing submissions. Apart from the fact that submissions are not evidence, Aviva argued that it was caught by surprise by Ms. Bobrova’s collateral attack on the evidence. It submitted that Ms. Bobrova’s tactic offended the Rule in Brown v. Dunn¹² and cited the Commission decision in Ofori and Allstate Insurance Company of Canada¹³ in support of its position.

In Ofori, the insurer chose not to impugn directly the applicant’s expert reports in cross-examination of its authors. Instead, the insurer filed its own expert reports and called its own witnesses, but did not give the applicant’s experts an opportunity to respond directly to its challenges.

Arbitrator Wilson found that the insurer had offended the Rule and concluded:

The question of fairness to a witness is not addressed by the mere filing of an opposing report. Allstate should have indicated to counsel for Mr. Ofori that his experts were required for cross-examination, and put the questions to them directly in cross-examination.

The provision of expert evidence by filing reports is an innovation and a departure from the normal rules of evidence and practice. It can be useful in providing information to the trier of fact, and can make for a more efficient hearing process. While practice at the Commission specifically allows the filing of expert reports, there is no provision in the Rules suppressing the long-standing right of a witness to have any challenges to his or her evidence presented to him or her in person, with the full opportunity to answer any such questions.

If a party chooses not to cross-examine a witness as part of the hearing, I must assume that such a decision was not made lightly and was made in light of the provisions of the Browne v. Dunn rule, which has been in place for more than a century.

I note that in Ofori, the insurer had provided its own report that would have afforded the applicant with some notice of its position vis-à-vis the applicant’s reports. Here, and without knowing what discussions there may have been between counsel prior to the hearing, the applicant’s challenges appear to have been reserved to closing submissions.

Ms. Bobrova argued that the assessments, as with all documentary evidence, speak for themselves, and she was simply drawing my attention to certain defects and deficiencies apparent on their face.

While I agree that documents speak for themselves, I find Ms. Bobrova’s approach to the evidence problematic. While recognizing that the Commission encourages parties to file reports rather than calling witnesses, I agree with Arbitrator Wilson that, where a party has elected not to require a witness to be made available for cross-examination on his or her report, “I cannot assume that a witness does not have an answer to a challenge by the other side.” At best, the weight I can fairly place on any such challenge, collaterally mounted in closing submissions, is diminished.

Analysis and Conclusions

In my view, the real problem here for Ms. Bobrova is not whether or to what extent the assessments conducted by Ms. Yu or the attendant care DAC are found to be deficient. The problem is what I view as deficiencies in her own evidence.

Ms. Bobrova has disputed attendant care for a specific period, June to September 2005. Even if I were to find shortcomings with the assessments of December 17, 2004 and March 30, 2005, it does not follow that there was a need for attendant care for the period from June to September 2005 or that attendant care should be paid at the rate calculated in May 2004 or some other amount that I speculate to be fair. Ms. Bobrova still has the burden to establish the need for specific items of attendant care for the specific period in dispute by way of cogent and detailed oral and documentary evidence.

Ms. Bobrova did refer to Dr. Moddel’s neurological assessment on May 13, 2005 and Dr. Soriano’s orthopaedic assessment on May 18, 2005 as positive evidence in support of her need of attendant care beyond the amount paid by Aviva between June and September 2005.

As stated in the medical chronology, Dr. Moddel did make a diagnosis of left ulnar nerve neuropathy and found Ms. Bobrova’s dizziness consistent with post-traumatic positional vertigo. Dr. Soriano noted significant problems with the left knee and his prognosis was guarded.

The difficulty is that these reports do not, on their own or in conjunction with the oral evidence, provide a sufficient evidentiary basis upon which I can establish a link between Ms. Bobrova’s impairments and a need for specific attendant care. They do not make any recommendations regarding attendant care. In fact, as noted in the medical chronology, Dr. Soriano suggested that Ms. Bobrova “is now able to function independently caring for herself.” It may be that Dr. Soriano did not probe into specific self-care tasks but, while this may be true, it can hardly be said that his report can be read as offering positive evidence of a need for attendant care.

I have no doubt that the accident and its sequelae, as well as the subsequent surgeries have had a profound affect on Ms. Bobrova. The impact has been far-reaching and continues to this day. Dizziness and balance issues appear to be particularly problematic. I note that Dr. Noyek, the ENT specialist, in his report of November 20, 2006 noted as follows:

Concerning ongoing difficulties, the primary focus for her is the dizziness. The imbalance makes her tentative in all activities of daily living including crossing streets as identified. She cannot bend to do housework and other chores for fear of initiating benign positional vertigo. In order to reach an object near the floor she actually has to sit down first in order to achieve this objective.

I recognize that this accident has placed ongoing limitations on Ms. Bobrova and I sympathize with the diminishment in her ability to enjoy life. I also recognize that the assistance provided by her husband, Mr. Dourmanov, offered Ms. Bobrova comfort and support. In fact, given Ms. Bobrova’s ongoing physical and psychological challenges, I have no doubt that his assistance has made certain items of personal care much easier to perform. However, this is not the same as stating that the assistance is reasonable and necessary. Specifically, I cannot state, on the evidence before me, that Ms. Bobrova’s dizziness translates into a reasonable and necessary requirement for supervisory attendant care in the amount of 2100 minutes per week or any other amount. Nor am I able to correlate most of the other items of assistance that were undoubtedly provided to Ms. Bobrova with an identifiable and calculable attendant care need.

There were two items of assistance put forward on the submissions as attendant care that, although I do not find Ms. Bobrova established a claim to them as attendant care, warrant further comment.

With respect to transportation expenses, Mr. Dourmanov identified driving Ms. Bobrova to medical appointments as a major service he provided to her. He testified that she had only just recently been able to go to doctor’s appointments on her own, continuing that she had been too afraid of cars and crossing the street to go on her own before. He also acknowledged that he would sometimes drive her to appointments before the accident. As stated before, Ms. Bobrova is a non-driver.

I agree with Aviva that transportation expenses to and from medical appointments is not recoverable as an attendant care expense. Subsection 16(3) specifically excludes expenses for which payment may be obtained under subsection 14(2)(g) of the Schedule. Subsection 14(2)(g) provides for recovery of transportation expenses as a medical benefit, beyond “the first 50 kilometres of transportation to and from a treatment session.” I do not have sufficient information to determine whether there is a potential claim under this head.

The other item of assistance that warrants further mention is assistance with complex meal preparation. This is an item for which there appears to be ample evidence of ongoing need. Ms. Yu identified assistance with complex meal preparation as reasonable and necessary in her report of December 17, 2004. It was identified again in her March 8, 2005 report. In both cases, meal preparation was factored into her assessment of required housekeeping and home maintenance. In fact, Ms. Savchenko also dealt with meals as a housekeeping expense in her May 3, 2004 report.

Although Ms. Westbrook made the determination that no attendant care was required with respect to “feeding”, I note that Ms. Bobrova is reported to have said that she was “independent in reheating food, preparing light meal or snack and pouring a beverage.” I also note that this was an item with which Ms. Bobrova took specific issue with Ms. Westbrook’s assessment. Further, the activities listed in Ms. Westbrook’s functional assessment, as they relate to feeding, appear to be fairly basic functions such as accessing cupboards, carrying a water jug, holding a knife and opening a twist cap. Ms. Westbrook did not assess Ms. Bobrova’s housekeeping needs and I am not convinced that Ms. Westbrook’s attendant care assessment on “feeding” contradicts Ms. Bobrova’s evidence that she was not independent with respect to preparing meals.

In or about January 2005, Mr. Dourmanov and Ms. Biberberg began submitting expense forms that presented Mr. Dourmanov’s assistance as exclusively attendant care and Ms. Biberberg’s assistance as strictly housekeeping. As Mr. Dourmanov was primarily responsible for meal preparation, he continued to list assistance with meal preparation in his attendant care submissions. Although meal preparation could fall under either category¹⁴, I find that it was consistently dealt with as an item of required housekeeping assistance in the assessments prepared on behalf of both parties and should be treated as such. It is unclear how Aviva dealt with expenses for meal preparation and whether there is a potential claim for this item under the head of housekeeping benefits for the period in dispute or otherwise. Again, I do not have sufficient information to make this determination which, in any event, is not before me.

There is one item where, in my view, the attendant care assessments, taken together with the oral evidence, establish a quantifiable need for attendant care.

In her assessment of March 4, 2005, Ms. Bobrova reported requiring assistance from her husband with holding the hand held shower in order to avoid water splashing outside the bathtub, as the shower curtains had been replaced with shower doors that would not close with the tub transfer bench. Ms. Yu did not prepare a Form 1 on this occasion, but neither did she comment in the body of her report that she had a recommendation to deal with this issue or that Mr. Dourmanov’s assistance in this regard was not reasonable and necessary.

As I noted above in the medical chronology, Ms. Westbrook concluded that assistance was not recommended on the basis that Ms. Bobrova was observed to be able to hold the long handled shower hose with her left hand and to use the right hand to facilitate rinsing. However, as also noted previously, it is not clear whether Ms. Bobrova reported, or whether Ms. Westbrook considered, the issue of assistance from the perspective of water splashing outside the bathtub due to the tub transfer bench preventing the shower doors from closing.

In the attendant care assessment conducted on September 30, 2005 following the surgery to repair the meniscus tear, Ms. Kovacs does identify the need for assistance from Mr. Dourmanov to hold the hand held shower. In her Form 1 dated October 5, 2005, Ms. Kovacs identified two items of attendant care under the general heading “Bathing”. The first item calculated 3 minutes, 7 times per week for transfers to and from the bathtub or shower. The other item calculated 20 minutes, 7 times per week for the line item with the preset description “bathes and dries applicant”. As the body of her report does not identify any need to assist with drying, I conclude that the 20 minutes relates to assistance with holding the hand held shower.

I am satisfied on the evidence that Ms. Bobrova required 140 minutes (or 2.33 hours) per week of assistance with bathing for the period in dispute. I find that this assistance was both reasonable and necessary, particularly given Ms. Bobrova’s instability on wet and slippery surfaces. I also find that this assistance was required as a result of the accident and would have been reasonable and necessary irrespective of her slip and fall on June 16, 2005. I am not convinced, on a balance of probabilities, that assistance on and off the tub transfer bench would have been required between June and September 2005 irrespective of the slip and fall.

At 4.3 weeks per month, and using the Level 3 Care rate of $16.86 per hour, I find that Ms. Bobrova is owed $168.92 per month (2.33 hrs x 4.3 wks x $16.86) for each of June, July, August and September 2005. Each payment would have become due and payable no later than 30 days after the submission of each month’s expense.

EXPENSES:

The parties did not make submissions on the issue of expenses. If the parties are unable to reach agreement on entitlement to or quantum of expenses, they may request a determination pursuant to Rule 79 of the Dispute Resolution Practice Code.

September 28, 2007

Robert Bujold Arbitrator

Date