Stephanie Nickle v. RBC General Insurance Company, 2008 ONFSCDRS 14

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 14

FSCO A06-000756

BETWEEN:

STEPHANIE NICKLE

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: October 30 and 31, 2007, at the offices of the

Financial Services Commission of Ontario in Toronto.

Appearances: Adam Ezer, student-at-law, for Mrs. Nickle

Darrell March, solicitor, for RBC General Insurance Company

Issues:

The Applicant, Stephanie Nickle, was injured in a motor vehicle accident on May 11, 2005. She applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose between the parties concerning her entitlement to these benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Nickle 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. Pursuant to section 13 of the Schedule, is Mrs. Nickle entitled to receive weekly caregiver benefits from June 5, 2005 through December 31, 2005 (less amounts paid)?

2. Pursuant to section 22 of the Schedule, is Mrs. Nickle entitled to receive payments for housekeeping and home maintenance services from June 5, 2005 through December 18, 2005 (less amounts paid)?

3. Pursuant to section 46(2) of the Schedule, is Mrs. Nickle entitled to interest for the overdue payment of benefits?

4. Pursuant to section 282(11) of the Insurance Act, is RBC liable to pay Mrs. Nickle’s expenses in respect of the arbitration?

5. Pursuant to section 282(11) of the Insurance Act, is Mrs. Nickle liable to pay RBC’s expenses in respect of the arbitration?

Result:

1. Mrs. Nickle is entitled to receive caregiver benefits in the amount of $310.00.

2. Mrs. Nickle is entitled to receive $42.50 for housekeeping and home maintenance services.

3. Mrs. Nickle is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

4. The decision on expenses is deferred.

PROCEDURAL MATTERS:

Admission of Documents

On September 26, 2007, the Applicant filed her Arbitration Brief (two volumes, marked collectively at the hearing as Exhibit 1). On September 28, 2007, RBC filed its Arbitration Brief (marked at the hearing as Exhibit 2). As it turns out, RBC omitted from its Brief three significant reports which RBC had commissioned: a section 42 in-home assessment by NRCS Inc. dated June 22, 2005, a follow-up progress report (#1) by NRCS Inc. dated July 19, 2005 and a further follow-up progress report (#2) by NRCS Inc. dated August 24, 2005. At the commencement of the hearing, the Applicant’s representative sought leave to file these three reports in a Supplementary Brief. The Supplementary Brief had been served on counsel for RBC on October 26, 2007. Counsel for RBC objected to the admission of the Supplementary Brief on the basis that, pursuant to Rule 39.1 of the Dispute Resolution Practice Code (the “Code”), the Applicant ought to have delivered to RBC any documents upon which the Applicant intended to rely at least 30 days prior to the commencement of the hearing.

I heard submissions from both parties concerning this issue. The Applicant’s representative took the position that he expected these documents to be included in the Insurer’s Brief and did not discover the omission until shortly before the hearing. In any event, he submits that there is no prejudice to the Insurer because these documents were created as the result of examinations conducted at the request of the Insurer, they have been relied upon by the Insurer and have been in the possession of the Insurer for over two years.

Mr. March, on behalf of RBC, conceded that there was no prejudice to the Insurer in the admission of these documents. In fact, Mr. March contended that these reports were actually beneficial to the Insurer’s case. Nevertheless, because of a technical breach of the Rule 39.1, Mr. March objected to the admission of these documents.

I initially reserved my decision on this issue and rendered my decision, orally, later in the proceedings.

I note that, according to OCF-9 Forms filed in this matter, the Insurer relied upon the reports from NRCS Inc. in denying some of the benefits in question. The reports contained in the Supplementary Brief are therefore highly relevant to this proceeding. Pursuant to Rule 39.2 of the Code, I can admit these documents if I find that there are extraordinary circumstances that warrant their admission. Pursuant to Rule 81 of the Code, I can also waive the usual time requirements set out in Rule 39 or waive the application of Rule 39 altogether.

In this case, the Applicant provided a reasonable explanation for why the reports in question were not contained in the Applicant’s Brief. It is understandable that the Applicant’s representative assumed that these reports would be contained in the Insurer’s Brief and that their omission was not noted until shortly before the hearing. In a situation such as this, where the reports may be material to the outcome of the proceeding and where the Insurer has admitted that there is no prejudice to the admission of these documents, I found it reasonable to waive the normal time requirements. I admitted the Applicant’s Supplementary Brief and marked it as Exhibit 3.

Dispute over Payments Made by RBC

In answer to an undertaking, Mr. March wrote to the Applicant’s representatives on March 19, 2007 and advised as follows:

… our client has advised us of the following breakdown with respect to the amounts paid to the claimant in Caregiving and Housekeeping Expenses.

Total Amount Paid

Termination Date

Caregiver Benefits

$1,865.00

November 25, 2005

Housekeeping Expenses

$1,080.00

November 25, 2005

At the commencement of the hearing, Mr. March advised me that in preparing for the hearing, he discovered that the figures set out in his letter of March 19, 2007 were not accurate and that, in fact, RBC had paid a total of $1,952.50 (an extra $87.50) in caregiver benefits and a total of $1,310.00 (an extra $230.00) for housekeeping expenses. Since the parties could not agree on the amounts that had been paid by RBC, I gave both parties an opportunity to call evidence and to make submissions on this issue.

EVIDENCE AND ANALYSIS:

Surveillance Evidence

RBC tendered surveillance evidence from June 2006 (Ex. 2, Tab 14) but chose not to present it during the hearing. Given the timing of this surveillance (June 2006) in relation to the periods during which benefits are in dispute (June through December 2005) and given its substance (which I have reviewed), I find that it is of no assistance in deciding the issues currently before me.

Background

On May 11, 2005, at about 6:45 a.m., the Applicant was driving eastbound on Highway 401 on her way to work. The car ahead of her braked suddenly. The Applicant swerved to the left and rear-ended another vehicle. The driver’s side air bag deployed in the Applicant’s vehicle.

The Applicant suffered soft-tissue injuries to her left arm and wrist and to her chest, neck and back. She attended at a walk-in clinic on the day of the accident. She was prescribed anti-inflammatory medication and was told to take over-the-counter pain killers. She subsequently went to see her family doctor who also gave her anti-inflammatory and pain medication. She commenced treatment for her injuries almost immediately and the treatment continued until early 2006. Her condition generally improved during this period.

At the time of the accident, the Applicant had a daughter who was three and one-half years old and a son who just turned 12 years old on the day of the accident. They lived together in a two-storey, three-bedroom, 1,900-square-foot townhouse.

At the time of the accident, the Applicant worked full-time as an assistant supervisor looking after children in a facility that offers day care and before- and after-school programs. As a result of her injuries, the Applicant was off work for a couple of weeks and then returned to work on modified duties.

The Applicant made claims to RBC for, amongst other things, housekeeping benefits and expenses related to caregiver services. RBC paid the bulk of the claims submitted. This application relates to the difference between what was claimed by the Applicant up to December 2005 and what was paid by RBC. Ultimately, I found the issues in this case to be relatively narrow and the amounts in dispute to be very small. Unfortunately, lack of co-operation by the parties and/or their representatives tended to make the proceeding longer and more complex than would otherwise have been the case. For instance, they could not even agree on the amounts that had been paid by RBC.

Amounts Paid by RBC

Mina Cosolo, accident benefits manager, testified on behalf of RBC with respect to the issue of the benefits paid to the Applicant. She testified that, according to the records of RBC, RBC had paid the following amounts:

Caregiver Benefits

PERIOD COVERED

AMOUNT PAID

May 12, 2005 – June 5, 2005

$ 662.50

June 6, 2005 – July 3, 2005

662.50

July 4, 2005 – July 31, 2005

240.00

August 1, 2005 – August 28, 2005

160.00

August 29, 2005 – October 16, 2005

140.00

October 17, 2005 – November 25, 2005

87.50

TOTAL

$1,952.50

Housekeeping and Home Maintenance Benefits

PERIOD COVERED

AMOUNT PAID

May 12, 2005 – June 5, 2005

$ 292.50

June 6, 2005 – July 3, 2005

357.50

July 4, 2005 – July 31, 2005

220.00

August 1, 2005 – August 28, 2005

130.00

August 29, 2005 – September 25, 2005

80.00

September 26, 2005 – November 25, 2005

230.00

TOTAL

$1,310.00

Mr. Ezer, on behalf of the Applicant, only took issue with respect to the payment of $87.50 purportedly made for caregiver benefits for the period of October 17, 2005 through November 25, 2005 and the payment of $230.00 purportedly made for housekeeping services for the period of September 26, 2005 through November 25, 2005.

With respect to the two payments that are in dispute, the testimony of Ms. Cosolo is supported by RBC’s Form OCF-9 dated March 12, 2007 (Ex. 1, Tab 6, pp. 177-180).² This form, which appears to have been copied to the Applicant’s solicitors (and, in fact, is contained in the Applicant’s Arbitration Brief), is further evidence that RBC did make the payments in question.

There is no direct evidence to refute that RBC made these payments. The Applicant did not testify on this issue in her evidence-in-chief nor was she called to rebut the testimony of Ms. Cosolo. Ms. Oana Floricel, an employee at Mazin, Rooz, Mazin was called to testify on this issue but she had no first-hand information relevant to this issue. The fact that the Applicant’s representatives may be unaware of whether the payments in question were made by RBC to the Applicant was not helpful to me in deciding this issue. Although I accepted from Ms. Floricel a printout of a document created by Mazin, Rooz, Mazin (Exhibit 6), I give this document no weight as it is clearly incomplete and inaccurate. For instance, it identifies the sole service provider from May 12 onwards as David Blake when all other evidence demonstrates (and the parties agree) that July 4, 2005 was the earliest date that the Applicant claimed expenses related to services provided by Mr. Blake and that from May 12 until July 3, 2005 the services were provided by Sally Williams. Also, the records in Exhibit 6 with respect to caregiver services end on October 16, 2005 despite the Applicant having submitted two invoices for subsequent periods. Similarly, the records in Exhibit 6 with respect to housekeeping end on September 25, 2005 despite the Applicant having submitted two invoices for subsequent periods.

On a balance of probabilities, I find that RBC made all of the payments set out in the two tables above (i.e., that RBC paid a total of $1,952.50 in caregiver benefits and a total of $1,310.00 for housekeeping expenses).

Caregiver Benefits

(i) Introduction

Pursuant to section 13 of the Schedule, an insurer shall pay for reasonable and necessary expenses incurred as a result of an accident in caring for a person in need of care if, as a result of the accident, the insured person (who was the primary caregiver and who was residing with the person in need of care) sustains an impairment that results in a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

In this case, RBC paid most of the invoices submitted by the Applicant for the caregiver expenses she incurred. Based upon my earlier findings (as to the amounts paid by RBC), the relevant information concerning the claims of the Applicant can be summarized in the following table:

PERIOD

AMOUNT CLAIMED

AMOUNT

PAID

May 12, 2005 – June 5, 2005

$ 662.50

$ 662.50

June 6, 2005 – July 3, 2005

787.50

662.50

July 4, 2005 – July 31, 2005

240.00

240.00

August 1, 2005 – August 28, 2005

355.00

160.00

August 29, 2005 – October 16, 2005

290.00

140.00

October 17, 2005 – November 25, 2005

87.50

87.50

November 26, 2005 – December 31, 2005

57.50

Nil

TOTAL

$2,476.25

$1,952.50

The preponderance of the medical evidence, at least until October 2005, supports the position of the Applicant that, as a result of the May 11, 2005 accident, she sustained an impairment that resulted in a substantial inability to engage in some of the caregiving activities in which she was engaged prior to the accident. This evidence includes two In-Home Assessments by Dr. MacLeod (arranged by the Applicant), three in-home assessments by NRCS Inc. (arranged by the Insurer) and a Disability Certificate issued on August 27, 2005.³

I will not discuss below the periods for which RBC has paid the full amount claimed by the Applicant. Rather, I shall focus on those periods for which the benefits are in dispute.

(ii) Claim for caregiver benefits for the period of June 6, 2005 through July 3, 2005

The Applicant submitted a claim for $787.50 (78.75 hours @ $10.00 per hour) for the four week period of June 6, 2005 through July 3, 2005 for the services provided to her by Sally Williams.

The original in-home assessment conducted by NRCS Inc. on June 15, 2005 (see Ex. 3, Tab 1), found that due to impairments that the Applicant suffered as a result of the accident on May 11, 2005, the Applicant was substantially unable to lift her three-year-old daughter to give her a bath or to bend down to wash her and that the Applicant required assistance with this task. It was also noted in this report that, since the accident, the Applicant required additional services from her babysitter to watch her two children while she attended her medical appointments. Maria Kerigan, the occupational therapist who conducted this examination on behalf of RBC recommended, amongst other things, that the Applicant receive caregiver assistance for bathing her daughter (2 hours per week) and for watching her children while the Applicant attended medical appointments (hours as required).

Ultimately, based upon this report, RBC approved all of the amounts claimed in this invoice except for those amounts related to cooking, feeding, tutoring, “taking for walks” and doing her “child’s hair” as those activities were not specifically listed in the report as caregiving tasks with which the Applicant required assistance. RBC paid for caregiver services related to “help with personal hygiene” and “accompanying/supervising” the Applicant’s children. RBC paid the Applicant $662.50 of the $787.50 claimed (see OCF-9 dated August 5, 2005 - Ex. 1, Tab 6, pp. 73-75).

The Applicant had her own in-home assessment conducted on June 6, 2005 by Dr. David N. MacLeod of Phoenix Assessments and he concluded that she required about 5 hours per week of assistance with childcare due to impairments she suffered as a result of the accident.

The Applicant failed to adduce cogent evidence at the hearing that she suffered any substantial inability to assist her children with respect to tutoring⁴, taking them for walks or doing her “child’s hair”. I therefore find to be reasonable the Insurer’s refusal to pay for services related to such activities.

With respect to the claim for assistance in meal preparation, both NRCS Inc. and Dr. MacLeod concluded that, at least at this point in time (i.e., within 6 weeks or so from the date of the accident), the Applicant required some assistance in this regard.⁵ The problem is that neither NRCS Inc. nor Dr. MacLeod included this as part of childcare and the Applicant submitted this claim as a caregiver rather than as a housekeeping expense. No particulars were provided by the Applicant concerning the cooking that was purportedly done by Sally Williams during this period. Ms. Williams did not testify at the hearing. Given the lack of details, I find that the Applicant has failed to prove that she is entitled to compensation for the cooking (10 hours in total) purportedly done for her by Sally Williams during this period.

For all of the foregoing reasons, I find that RBC owes no caregiver benefits for this period.

Finally, it is difficult to criticize RBC’s decision to rely upon the report of NRCS Inc. in this instance as that decision resulted in RBC paying substantially more in caregiver benefits to the Applicant for this period than would have been the case had it relied upon the report of the Applicant’s own assessor, Dr. MacLeod.

(iii) Claim for caregiver benefits for the period of August 1, 2005 through August 28, 2005

The Applicant submitted a total claim of $355.00 for the period of August 1, 2005 through August 28, 2005 for the services provided to her by David Blake. This claim was based upon 35.5 hours of services over a four-week period. RBC paid $160.00 for this period, representing payment for a total of 16 hours of services (4 hours per week).

Initially, on August 26, 2005, RBC took the position that it only had to pay a maximum of 2 hours per week for caregiver services according to its interpretation of the report prepared by Maria Kerigan, O.T. from NRCS Inc., following her examination, which was conducted on August 23, 2005.⁶ A few days later, on August 30, 2005, RBC corrected itself and acknowledged that NRCS Inc. had recommended “2 hours per week for bathing [your] daughter AND while [you] attend medical appointments (time as required).”⁷ In fact, this was the recommendation in each of three reports from NRCS Inc. based on in-home assessments conducted on June 15, July 13 and August 23, 2005.

From July 4 onwards, the Applicant never claimed more than 2 hours per week for assistance in bathing her daughter; all of the other caregiver services claimed by the Applicant fell on dates upon which the Applicant had to attend medical appointments.⁸

Based upon RBC’s OCF-9 dated August 30, 2005, one would therefore have thought that RBC would have paid the invoice for August 1 through August 28, 2005 in which the Applicant claimed less than 2 hours per week for bathing her daughter and for the cost of having David Blake supervise her children while she attended medical appointments twice each week.

Instead, RBC changed its position and relied upon a report by Dr. MacLeod (Ex. 1, Tab 4, p. 145), in which he recommended only 4 hours per week of assistance with childcare. RBC paid in accordance with this recommendation (i.e., $160.00 which represents 4 hours per week for 4 weeks at $10.00 per hour).⁹ Subsequently, RBC returned to its incorrect interpretation of the August 23, 2005 NRCS Inc. assessment and purported to limit the Applicant to a maximum of 2 hours per week for caregiver services.¹⁰

In this instance, it was not reasonable for RBC to ignore the recommendations contained in all three reports from NRCS Inc. that RBC pay for childcare while the Applicant attended medical appointments. Dr. MacLeod’s report is silent on this issue. RBC committed itself to pay this expense in its form OCF-9 dated August 30, 2005. The Applicant was entitled to rely upon the recommendation of NRCS Inc. and upon the OCF-9 dated August 30, 2005 from RBC.

RBC raised at the hearing before me the issue of whether such an expense can properly be characterized as a caregiver benefit. RBC never previously advised the Applicant that she was not entitled to claim such an expense as a caregiver expense. I note that there are arbitration decisions (albeit under previous versions of the Schedule) that suggest that a claim for such expenses can be advanced as a claim for caregiver benefits.¹¹ In any event, this was not raised as an issue by RBC at mediation or in its Response to the Application for Arbitration. I find that RBC is estopped from raising this issue for the first time at the hearing of the Application.

Adding together all time for bathing the Applicant’s daughter and for supervising the children during the Applicant’s medical appointments, I find that the Applicant is entitled to be compensated for 32 hours of caregiver services during this period. At $10.00 per hour, that is equal to $320.00.¹² RBC paid $160.00 for this period. Therefore, RBC shall be ordered to pay the remaining $160.00 for caregiver services still owing for this period.

(iv) Claim for caregiver benefits for the period of August 29, 2005 through October 16, 2005

The Applicant submitted a total claim of $290.00 for the period of August 29, 2005 through October 16, 2005 for the services provided to her by David Blake. This claim was based upon 29 hours of services over a seven-week period. RBC paid $140.00 for this period, representing payment for a total of 14 hours of services (2 hours per week for seven weeks). As previously indicated, RBC calculated this amount based upon its incorrect interpretation of the August 23, 2005 NRCS Inc. assessment (i.e., RBC purported to limit the Applicant to a maximum of 2 hours per week for caregiver services).¹³ NRCS Inc. had, in fact, recommended 2 hours per week of assistance PLUS childcare assistance as needed for the time that the Applicant attended medical appointments.

In its form OCF-9 dated August 30, 2005, RBC had requested that, in order to accurately keep track of her appointments, the Applicant complete a Transportation Log Sheet and submit it in the future with claimed expenses. It appears that she complied with this request as she did complete one Transportation Log Sheet for September 2005 and one for October 2005.¹⁴

For the period of August 29, 2005 through October 16, 2005, the Applicant ONLY claimed caregiver services for the times that she attended medical appointments. For the reasons previously given, I find that RBC is required to pay for the caregiver services, as claimed. Therefore, RBC shall be ordered to pay the remaining $150.00 for caregiver services still owing for this period.

(v) Claim for caregiver benefits for the period of November 26, 2005 through December 31, 2005

The Applicant submitted a total claim of $57.50 for the period of November 26, 2005 through December 31, 2005 for the services provided to her by David Blake. This claim was based upon 5.75 hours of services over a five-week period. RBC has paid nothing towards this claim.

On October 4, 2005, RBC had the Applicant undergo a psychological insurer examination at Worklab Inc. and on October 13, 2005, RBC had the Applicant undergo a physiatry insurer examination at Worklab Inc. (see Ex. 2, Tab 12). With respect to both examinations, it was concluded that the Applicant did not, as of October 2005, suffer a substantial inability to perform her caregiving responsibilities. The Applicant reported to the physiatrist, Dr. A. Czok, that she was independent in all aspects of activities of daily living including personal care, housework, childcare as well as employment-related duties but that she avoided activities that required heavy lifting. The Applicant confirmed during her cross-examination that this was likely an accurate reflection of her statements to Dr. Czok and that, as of mid-October 2005, she was in fact independent in all aspects of housework and childcare.

The Applicant was advised of her right to attend at a designated assessment centre if she wished to challenge the findings of Worklab Inc. but she declined to do so.

On the basis of the reports from Worklab Inc., RBC sent to the Applicant and her representatives a form OCF-9 dated November 9, 2005 advising that her entitlement to caregiver benefits would stop effective November 25, 2005.

The Applicant called Dr. Grant Alyea as a witness at the hearing of this application. Dr. Alyea is a chiropractor. He was originally in charge of the Applicant’s treatment at East Sheppard Rehabilitation Company, but he left that facility at the end of August 2005. Dr. Alyea admitted that he has no knowledge of the Applicant’s condition, and has no opinion with respect thereto, beyond August 2005.

With respect to the Applicant’s ability to perform caregiving activities as of October 2005 and subsequently, the Applicant offers very limited medical evidence.

She has produced a Disability Certificate dated November 21, 2005 from Dr. Wil Kuch (Ex. 1, Tab 4, pp. 59-63) that finds that the Applicant does still suffer a substantial inability to engage in her usual pre-accident caregiver and housekeeping activities and will likely continue to be so disabled for another one to four weeks. Dr. Kuch did not testify and he did not prepare a full report (although he did prepare a treatment plan). Without more detailed information, the basis for his conclusions remains uncertain. I give little weight to this disability certificate.

The Applicant has also filed a report dated September 4, 2007 from Dr. Evan Kogon (a chiropractor with Phoenix Assessments) who never even examined the Applicant but who purports to offer a medical-legal opinion, based solely upon a document review. Dr. Kogon’s report deals primarily with proposed treatment plans that are not the subject of this application.¹⁵ With respect to the issue I have to decide, I give no weight to the report of Dr. Kogon.

David Blake did not testify at the hearing.

The Applicant’s testimony was that, as of mid-October 2005, she was independent in all aspects of childcare.

Based on the foregoing, I find that RBC owes no amount for caregiver services for the period of November 26, 2005 through December 31, 2005.

(vi) Conclusion – Caregiver Benefits

RBC shall be ordered to pay to the Applicant the total sum of $310.00 for caregiver benefits.

Housekeeping and Home Maintenance

(i) Introduction

Pursuant to section 22 of the Schedule, an insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

In this case, RBC paid most of the invoices submitted by the Applicant. Based upon my earlier findings (as to the amounts paid by RBC), the relevant information concerning the claims of the Applicant can be summarized in the following table:

PERIOD

AMOUNT CLAIMED

AMOUNT

PAID

May 12, 2005 – June 5, 2005

$ 292.50

$ 292.50

June 6, 2005 – July 3, 2005

400.00

357.50

July 4, 2005 – July 31, 2005

280.00

220.00

August 1, 2005 – August 28, 2005

272.50

130.00

August 29, 2005 – September 25, 2005

80.00

80.00

September 26, 2005 – November 25, 2005

230.00

230.00

November 26, 2005 – December 18, 2005

150.00

nil

TOTAL

$1,705.00

$1,310.00

The preponderance of the medical evidence, at least until October 2005, supports the position of the Applicant that, as a result of the May 11, 2005 accident, she sustained an impairment that resulted in a substantial inability to perform some of the housekeeping and home maintenance services that she normally performed before the accident. This evidence includes a Disability Certificate issued on May 11, 2005, two in-home assessments by Dr. MacLeod (arranged by the Applicant), three in-home assessments by NRCS Inc. (arranged by the Insurer) and a Disability Certificate issued on August 27, 2005.

I will not discuss below the periods for which RBC has paid the full amount claimed by the Applicant. Rather, I shall focus on those periods for which the benefits are in dispute.

(ii) Claim for housekeeping expenses for the period of June 6, 2005 through July 3, 2005

The Applicant submitted a claim for $100.00 per week (10 hours per week @ $10.00 per hour) for the four-week period of June 6, 2005 through July 3, 2005 for the services provided to her by Sally Williams. Of the 40 hours claimed, a total of 3.5 hours was related to vacuuming and 1 hour was related to dusting.

The original in-home assessment conducted by NRCS Inc. on June 15, 2005 (see Ex. 3, Tab 1), found that because of impairments the Applicant suffered as a result of the accident on May 11, 2005, the Applicant demonstrated limitations in her ability to carry out her pre-accident housekeeping and home maintenance tasks such as heavy grocery shopping, cooking, loading the bottom rack of the dishwasher and heavy dishwashing, vacuuming, sweeping, mopping, bed making, bathroom cleaning, laundry, grass cutting and gardening tasks. It was therefore concluded that she required external assistance to perform these housekeeping tasks. With respect to lighter tasks such as dusting, it was found that she was able to partially complete such tasks but it was recommended that she be provided with a number of assistive devices (such as a long-handled duster) and that the Applicant would benefit from education on pacing, proper body mechanics, posture and so forth. Maria Kerigan, the occupational therapist who conducted this examination on behalf of RBC recommended, amongst other things, 8 hours per week of assistance for grocery shopping, cooking, mopping, sweeping, laundry and bathroom cleaning plus 2 hours per week of assistance for grass cutting and gardening tasks until further assessed. She also recommended the provision of various assistive devices, one educational session and a follow-up assessment in one month.

Based upon this report, RBC approved all of the amounts claimed in this invoice except for those amounts related to vacuuming and dusting. RBC paid the Applicant $357.50 of the $400.00 claimed (see OCF-9 dated August 5, 2005 - Ex. 1, Tab 6, pp. 73-75).

According to the form OCF-9 dated August 5, 2005, RBC withheld money for vacuuming on the basis that that had not been approved by the assessor who conducted the in-home assessment on June 15, 2005. That is simply incorrect. Although vacuuming is not specifically listed under the heading “Recommendations”, a full and fair reading of the report (especially the bottom of page 6 and the top of page 7) clearly shows that this is one of the tasks with which the assessor found that the Applicant required external assistance.

Also, since the Insurer did not approve the recommendations set out in this report until June 23, 2005 (see Ex. 1, Tab 6, p. 36), the Applicant obviously did not have the advantage of the recommended educational session or the assistive devices (such as a long-handled duster) until on or after June 23, 2005. The last claim by the Applicant for assistance with dusting during this period was on June 21, 2005.

For the foregoing reasons, I find that it was reasonable for the Applicant to have claimed for assistance during this period with vacuuming and with dusting as the evidence shows that, as a result of the accident, she suffered a substantial inability during this period to perform the vacuuming and dusting that she normally performed prior to the accident.

RBC shall be ordered to pay to the Applicant the balance of the invoice in the amount of $42.50.

(iii) Claim for housekeeping expenses for the period of July 4, 2005 through July 31, 2005

The Applicant submitted a total claim of $280.50 for the period of July 4, 2005 through July 31, 2005 for the services provided to her by David Blake. This claim was based upon 28.5 hours of services over a four-week period. RBC paid $220.00 for this period, representing payment for 22 hours of services. RBC relied upon the follow-up in-home assessment conducted by NRCS Inc. on July 13, 2005 (Ex. 3, Tab 2), which recommends 4 hours per week of assistance with heavy indoor tasks (vacuuming, laundry, cooking, grocery shopping and bathroom cleaning) and an additional 1 hour per week of assistance for lawn mowing (a total of 5 hours per week).

In light of the report from NRCS Inc. following the July 13, 2005 assessment and in the absence of any medical evidence to the contrary, I find that it was reasonable for RBC to have paid $220.00 for this period, representing payment for 22 hours of services. RBC owes no amount for housekeeping and home maintenance services for this period.

(iv) Claim for housekeeping expenses for the period of August 1, 2005 through August 28, 2005

The Applicant submitted a total claim of $272.50 for the period of August 1, 2005 through August 28, 2005 for the services provided to her by David Blake. This claim was based upon 27.25 hours of services over a four-week period. RBC paid $130.00 for this period, representing payment for a total of 13 hours of services (3.25 hours per week). RBC relied upon the Applicant’s own assessment by Dr. MacLeod (Ex. 1, Tab 4, p. 145), which recommended only 3.25 hours per week of assistance with housekeeping. I see nothing wrong in this instance with the Insurer relying upon this assessment and paying in accordance with its recommendations. RBC owes no amount for housekeeping and home maintenance services for this period.

(v) Claim for housekeeping expenses for the period of November 26, 2005 through December 18, 2005

The Applicant submitted a total claim of $150.00 for the period of November 26, 2005 through December 18, 2005 for the services provided to her by David Blake. This claim was based upon 15 hours of services over approximately a four-week period. RBC has paid nothing towards this claim.

As previously stated in this decision, the Applicant reported to the physiatrist, Dr. Czok, in connection with the assessment by Worklab Inc. on October 13, 2005, that she was independent in all aspects of activities of daily living including personal care, housework, childcare as well as employment related duties but that she avoided activities that required heavy lifting. The Applicant confirmed during her cross-examination that this was likely an accurate reflection of her statements to Dr. Czok and that, as of mid-October 2005, she was in fact independent in all aspects of housework and childcare.

On the basis the reports from Worklab Inc., RBC sent to the Applicant and her representatives a form OCF-9 dated November 9, 2005 advising that her entitlement to housekeeping/home maintenance benefits would stop effective November 15, 2005.¹⁶

As previously indicated in this decision, Dr. Alyea’s testimony was of little assistance with respect to my determination of the Applicant’s condition or need for assistance after August 2005 as he had no involvement with her (or with the clinic she was attending) after that point in time.

With respect to the Applicant’s ability to perform housekeeping and home maintenance activities as of October 2005 and subsequently, the Applicant offers very limited medical evidence.

As previously stated in these reasons, the Applicant produced a Disability Certificate dated November 21, 2005 from Dr. Wil Kuch (Ex. 1, Tab 4, pp. 58-63) that finds that, as of the date of the report, the Applicant still suffers a substantial inability to engage in her usual pre-accident caregiver and housekeeping activities and will likely continue to be so disabled for another one to four weeks. As previously noted, Dr. Kuch did not testify and he did not prepare a full report (although he did prepare a treatment plan). Without more detailed information, the basis for his conclusions remains uncertain. Again, I give little weight to this Disability Certificate.

The Applicant has also filed a report dated September 4, 2007 from Dr. Evan Kogon (a chiropractor with Phoenix Assessments) who never even examined the Applicant but who purports to offer a medical-legal opinion, based solely upon a document review and that deals primarily with proposed treatment plans that are not the subject of this application.¹⁷ With respect to the issue I have to decide, I give no weight to the report of Dr. Kogon.

David Blake did not testify at the hearing.

The Applicant’s testimony was that, as of mid-October 2005, she was independent in all aspects of housework.

Based on the foregoing, I find that RBC owes no amount for housekeeping and home maintenance services for the period of November 26, 2005 through December 18, 2005.

(vi) Conclusion – Housekeeping Expenses

RBC shall be ordered to pay to the Applicant the sum of $42.50 for housekeeping and home maintenance services.

EXPENSES:

I defer the issue of entitlement to expenses of this application. If the parties cannot agree on the issue of entitlement or amount, they may now make submissions on both issues in accordance with Rule 79 of the Code.

January 31, 2008

Richard Feldman

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 14

FSCO A06-000756

BETWEEN:

STEPHANIE NICKLE

Applicant

and

RBC GENERAL 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. The Insurer shall pay to Mrs. Nickle $310.00 for caregiver benefits.

2. The Insurer shall pay to Mrs. Nickle $42.50 for housekeeping and home maintenance services.

3. Mrs. Nickle is entitled to interest on the amounts set out above in accordance with section 46(2) of the Schedule.

4. If the parties cannot agree on the issue of entitlement or amount of expenses of this application, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code.

January 31, 2008

Richard Feldman

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2I note that these payments (i.e., $87.50 for caregiver benefits and $230.00 for housekeeping services) appear to have been made only one week prior to the letter from Mr. March, which may explain why Mr. March was not yet aware of these payments when he wrote his letter of March 19, 2007.
3. 3It was pointed out by the Insurer that Dr. Alyea indicated in the original Disability Certificate of May 11, 2005 that caregiver benefits were not applicable. This may simply have been an error or oversight on his part and it is not determinative of the issue of whether the Applicant did in fact sustain an impairment that resulted in a substantial inability to engage in her normal pre-accident caregiving activities.
4. 4Presumably this relates only to the Applicant’s son, given that her daughter was still an infant.
5. 5Dr. MacLeod suggested 5 hours per week for assistance with meal preparation. NRCS Inc. did not break out a specific number of hours related exclusively to cooking.
6. 6See OCF-9 dated August 26, 2005 (Ex. 1, Tab 6, pp. 88-92).
7. 7See OCF-9 dated August 30, 2005 (Ex. 1, Tab 6, pp. 93-96).
8. 8This was confirmed both by the testimony of the Applicant and by examining the dates on the caregiver invoices for which supervision is claimed and comparing those dates with the dates of treatment and assessments as revealed by the clinical notes and records from East Sheppard Rehabilitation Company and from the other medical documentation, filed.
9. 9See OCF-9 dated September 23, 2005 (Ex. 2, Tab 10).
10. 10See OCF-9 dated November 8, 2005 (Ex. 2, Tab 10).
11. 11Edwards and State Farm Mutual Automobile Insurance Company (OIC Appeal P-001707, February 26, 1996) and Nelson and Canadian General Insurance Company (OIC File No. A-006686, July 19, 1995).
12. 12The Applicant had claimed a total of $355.00 in caregiver benefits for this period. I find that she is entitled to a total of $320.00. The difference of $35.00 is related to 3.5 hours claimed for assistance with cooking, which according to the NRCS Inc. report of August 24, 2005, ought to have been claimed as part of the housekeeping expenses. Dr. MacLeod, on the other hand, concludes that, by July 2005, the Applicant no longer required any assistance with cooking.
13. 13See OCF-9 dated November 8, 2005 (Ex. 2, Tab 10).
14. 14See Ex. 1, Tab 4, pp. 89 and 90.
15. 15See Exhibit 5.
16. 16In fact, it appears that RBC paid the Applicant up to November 19, 2005, but nothing after that date.
17. 17See Exhibit 5.