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

Neutral Citation: 2008 ONFSCDRS 37

FSCO A05-002263

BETWEEN:

APRIL PICHE (Now known as April Loyst) Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

Before: David Leitch

Heard: January 14, 15 and 17, 2008 in Barrie, final submissions made on January 22, 2008 at FSCO.

Appearances: Andrew Kerr for Ms. Loyst Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, April Loyst, was injured in a motor vehicle accident on November 14, 2003. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Disputes eventually arose regarding Ms. Loyst’s entitlement to rehabilitation benefits (RBs), income replacement benefits (IRBs), attendant care benefits (ACBs) and housekeeping services (HKs). The parties were unable to resolve these disputes through mediation and Ms. Loyst 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 were as follows:

Is Ms. Loyst entitled to receive RBs for university tuition fees, books, a laptop computer and a microwave oven, claimed pursuant to section 15 of the Schedule?
Is Ms. Loyst entitled to IRBs, claimed pursuant to section 5(2)(b) of the Schedule?
What is the amount Ms. Loyst must repay Allstate pursuant to section 47 of the Schedule?
Is Ms. Loyst entitled to ACBs from December 13, 2003 to April 17, 2004, claimed pursuant to section 16 of the Schedule?
Is Ms. Loyst entitled to HKs from March 1, 2004 to November 13, 2005 claimed pursuant to section 22 of the Schedule?

Results:

Ms. Loyst is not entitled to receive RBs for university tuition fees, books, a laptop computer and a microwave oven.
Ms. Loyst is not entitled to additional IRBs.
Ms. Loyst must repay Allstate $4,487.11 plus interest in accordance with section 47(6) and (7) of the Schedule.
Ms. Loyst is not entitled to additional ACBs.
Ms. Loyst is not entitled to additional HKs.

Introduction

Ms. Loyst was 27 years old at the time of the accident in November 2003. She had completed a Law and Security course at a community college in 1997 at age 21. She testified that soon after completing the course, she applied for employment with a police force but failed one of the entrance tests, the “cadence run.” She made no further applications for police or corrections employment until sometime before the accident when, she testified, she applied to become a dispatcher at the Toronto Police Force Call Centre and a corrections officer at a local prison.

Ms. Loyst and her parents testified that she had always intended, from an early age, to become either a police officer or a corrections officer like her father. She maintained that the injuries she sustained in the accident prevented her from pursuing those career goals and that, as a result, she decided to pursue a career as a probation and parole officer. To that end, she started a B.A. in psychology and politics in September 2004 and, at the time of the hearing, had another year of study to go before obtaining her degree. She claimed that Allstate was obliged to pay for her tuition and books and a laptop computer pursuant to section 15 of the Schedule. She also claimed the cost of a microwave oven under section 15.

In the year before the accident, Ms. Loyst held two private security jobs and worked as a part-time subcontractor of her mother delivering mail for Canada Post. She also claimed to have earned income in that year as a partner in a roofing business she ran with her husband. Since Ms. Loyst claimed IRBs beyond the first 104 weeks after the accident, her claim was made pursuant to section 5(2)(b) of the Schedule.

The repayment issue arose under section 47 of the Schedule partly because Ms. Loyst did not disclose her return to part-time work in June 2005 and Allstate continued to pay her IRBs, without deducting her earnings, until December 2005. However, Ms. Loyst argued that the resulting overpayment was more than offset by an underpayment of IRBs due to Allstate’s refusal to include in the IRB calculation her alleged earnings from the roofing business she ran with her husband in the year prior to the accident.

Ms. Loyst’s claims for ACBs under section 16 and HKs under section 22 were in relation to the services allegedly provided by her mother.

Rehabilitation Benefits

The relevant parts of section 15 read as follows:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.

(2) The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.

(3) Measures to reintegrate an insured person into the labour market include measures that are reasonable and necessary to enable the person to,

(a) engage in employment that is as similar as possible to employment in which he or she engaged before the accident; or

(b) lead as normal a work life as possible.

(4) In determining whether a measure is reasonable and necessary for the purpose of subsection (3), the insurer shall consider the insured person’s personal and vocational characteristics.

(5) The rehabilitation 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 purpose referred to in subsection (2) for,

(a) …(f)

(g) vocational or academic training;

(h) … (k)

(1) other goods and services that the insured person requires …

University tuition fees, books and a laptop computer

There was no dispute that Ms. Loyst was unable to engage in her pre-accident employment, at least for the first 104 weeks after her accident. Allstate paid her IRBs during that period in accordance with the conclusion of a Disability Designated Assessment Centre in October 2004 that Ms. Loyst could not work at her pre-accident job because that job required her to drive and she had developed a driving phobia as a result of the accident.² That meant that, in accordance with section 15(3), Allstate could be required to pay for reasonable rehabilitation measures that would enable Ms. Loyst to “engage in employment that is as similar as possible to employment in which … she engaged before the accident.” The nature of Ms. Loyst’s pre-accident employment was, therefore, relevant in determining Allstate’s obligation to pay rehabilitation benefits. Since there was no evidence to suggest that Ms. Loyst needed a B.A. degree to obtain employment similar to that of a security officer, Allstate argued that it had no obligation to pay the costs associated with Ms. Loyst’s decision to obtain that degree.

However, section 15(4) goes on to state that “in determining whether a measure is reasonable and necessary … the insurer shall consider the insured person’s personal and vocational characteristics”, characteristics which are further defined in section 2 of the Schedule. An almost identical definition of “personal and vocational characteristics” was considered by the Ontario Court of Appeal in Attavar v. Allstate Insurance Company of Canada 2003 CanLII 7430 (ON CA), 63 O.R. (3d) 199. The Court noted that this definition is not exhaustive and accepted that a person’s “psychological make-up”, as shaped by her pre-accident career aspirations, can be a relevant personal characteristic. True, the facts and the legislative context in Attavar were different. Ms. Attavar was a 19 year old university student with no pre-accident employment history but a bright future. Her claim was governed by the Schedule applicable to accidents happening between 1993 and 1996. Her personal and vocational characteristics were relevant under section 30(2) paragraph 3 of that Schedule in order to determine her residual earning capacity (her REC). That section also refers to “the possibility of deterioration.” Section 30, in its entirety, reads as follows:

(1) For the purpose of this Part, the residual earning capacity of a person shall be deemed to be the net weekly income determined in accordance with section 81 or 82 using the gross annual income that the person could earn from the type of employment that best satisfies the criteria set out in subsection (2).

(2) The criteria referred to in subsection (1) are:

The person,

i. is able and qualified to perform the essential tasks of the employment, or

ii. would be able and qualified to perform the essential tasks of the employment if the person had not refused to obtain treatment or participate in rehabilitation that was reasonable, available and necessary to permit the person to engage in the employment.

The employment exists in the area in which the person lives and is accessible to the person.
It would be reasonable to expect the person to engage in the employment having regard to the possibility of deterioration in the person’s impairment and to the person’s personal and vocational characteristics. O. Reg. 776/93, s. 30 (2).

(3) For the purpose of subsection (2), a person is able and qualified to perform the essential tasks of an employment if,

(a) the person does not have any impairment that permanently prevents the person from performing those tasks; and

(b) the person has the job skills and any licence or other credentials required to perform those tasks, or could obtain those skills and the licence or credentials without significant effort.

Despite the different legislative context, the Court’s decision in Attavar addressed the same question under section 30 as arises in the present case under section 15 of the Schedule applicable here, namely, whether an insured person can reasonably refuse employment for which he/she is otherwise qualified, without rehabilitation, on the ground that the employment in question fails to correspond to his/her pre-accident career aspirations. In fact, Mr. Justice Laskin linked his answer to that question to the insurer’s obligation to provide appropriate rehabilitation, an obligation that is again described in almost identical terms under both Schedules. Writing on behalf of the Court, Laskin J. provided the following analysis:

27In my opinion, the trial judge could reasonably conclude that Ms. Attavar’s psychological make-up is a personal characteristic under s. 30(2)3 of the Schedule. “Personal and vocational characteristics” are defined in s. 1 of the Schedule to “include”:

(a) employment history,

(b) education and training,

(d) vocational skills,

(e) physical abilities,

(f) cognitive abilities, and

(g) language abilities.

28Although “psychological make-up” is not expressly listed, the definition is not exhaustive. A person’s psychological make-up, however, is a personal characteristic that may well be relevant to a person’s ability to engage in a particular job, especially where -- as in Ms. Attavar’s case -- it is directly linked to a listed factor, here “vocational interests and aptitudes”. ³ The trial judge therefore did not err in taking Ms. Attavar’s psychological make-up into account in determining her REC.

29Nor did the trial judge err in taking into account the likely deterioration in Ms. Attavar’s depression if she attempted to do either job suggested by Link with Work. Depression can be an impairment because s. 1 of the schedule defines “impairment” to mean “a loss or abnormality of psychological, physiological or anatomical structure or function” (emphasis added). Here, Ms. Attavar’s depression was one of the impairments she suffered because of the accident.

30I expect most, if not all, of us would at least be disappointed if injuries from an accident forced us to work at a job less meaningful than the job we aspired to before the accident. Some grief or sadness is inevitable. Nonetheless, it may still be reasonable for a person to engage in that employment, depending on the likely effect of doing so. In this case, however, it was not reasonable for Ms. Attavar to engage in either of the two suggested jobs because, had she done so, she would likely have suffered a major clinical depression.

31Indeed the evidence shows that after the accident Ms. Attavar suffered a mild depression, which worsened over time, and that had she tried to work at either recommended job, this depression would deepen to the point where it would be even more difficult for her to function. In the light of this evidence, the trial judge concluded that it was not reasonable for Ms. Attavar to engage in these jobs.

32His conclusion is amply supported by the evidence of the two psychologists called by Ms. Attavar, whose testimony the trial judge accepted. Dr. Trevor Smith, an expert in rehabilitation psychology, testified that the jobs suggested by Link with Work were “discordant” with Ms. Attavar’s continuing ambitions in the field of finance and business and, as permanent jobs, would amount to a “sentence of psychological death for her”.

33Dr. Tony Iezzi, a psychologist with expertise in assessing and managing patients coping with the emotional and physical consequences of trauma, undertook a comprehensive psychological assessment of Ms. Attavar in which he evaluated her vocational stability for the jobs suggested by Link with Work. Dr. Iezzi found that when Ms. Attavar was assessed by Link with Work she was suffering from a mild depression because of the accident. By the time he saw her, however, “she was suffering from significant levels of emotional distress, largely in the form of major depression.”

34In Dr. Iezzi’s opinion, doing either job recommended by Link with Work would constantly remind her that she had been unable to achieve her goals. He was then asked what would happen to her psychologically if she tried to do these jobs, and he gave this telling answer:

A. You would expect her to become more depressed, more frustrated, more angry, more discouraged, and you would expect her to eventually give up trying.

Q. With what result then?

A. Umm, a higher level of depression, which would make it even more difficult for her to function, would in fact also, you would predict that it would magnify her cognitive difficulties to an even greater extent, which of course, would make her more distressed and then you’re in this vicious cycle.

Dr. Iezzi therefore concluded that it was not reasonable for Ms. Attavar to attempt either job.

35Indeed, the two jobs recommended by Link with Work were incompatible with the paramount goal underlying Ms. Attavar’s rehabilitation: ensuring the continued pursuit of her university studies. Link with Work looked at Ms. Attavar’s rehabilitation from a narrow vocational perspective and, thus, did not adequately take into account the psychological impact on her of doing these jobs. Even Allstate’s expert acknowledged that it would be unreasonable for Ms. Attavar to abandon her studies and do the jobs recommended by Link with Work.

36In considering all the evidence before him, in my view the trial judge was justified in holding at para. 9:

[A]t some point in the future she would find this form of employment unacceptable due to her emotional state brought on by her depression which relates to her cultural background and expectations of her parents who looked upon her as the bright light in their family. In due course, she would be overwhelmed with a sense of guilt based upon the conclusion that she has not achieved her goals in life and eventually will give up trying.

37I am therefore satisfied that in finding Ms. Attavar’s REC to be zero, the trial judge properly applied the criteria in s. 30 of the Schedule.

In my view, these comments confirm that an insured person’s pre-accident career goals can be relevant in determining the kinds of rehabilitation measures an insurer is required to pay for under section 15 of the Schedule applicable in the present case. I acknowledge that these comments were made in the context of an applicant who had no pre-accident employment history. Still, I would not agree that an applicant’s pre-accident career goals can only be relevant if the applicant has no pre-accident employment history. An applicant who has both a pre‑accident employment history and a pre-accident career goal might be able to explain the relationship between the two in a manner that supported the kind of argument accepted in Attavar. In my view, it should depend on all the evidence presented, not on the mere fact that the applicant engaged in some pre-accident employment.

In the present case, I accept the evidence of Ms. Loyst and her parents that she had always intended, from an early age, to become either a police officer or a corrections officer like her father. However, I also accept Mr. Kirby’s submission that she did very little to pursue that goal following her first unsuccessful attempt soon after she obtained her Law and Security diploma in 1997. Her other attempts, allegedly made shortly before the accident, were unsupported by any documentary evidence. I note that when speaking to the psychiatrist and psychologist she saw after the accident, the only pre-accident job application she chose to tell them about was as a child and youth worker.⁴ I note further that while the notes and records of her family doctor often mentioned Ms. Loyst’s employment situation and prospects prior to the accident, they made no reference to her desire to engage in police or corrections work.⁵ Lastly, while Ms. Loyst testified that she left the security job she had just before the accident in order to pursue her career goal of police or corrections work, she also testified she left this job because it was in Toronto (where she did not live) and involved too much driving.

Even if Ms. Loyst still had her original career goal by the time of the accident, she presented no evidence to establish that she would suffer any adverse psychological consequence by continuing to engage in employment similar to her pre-accident employment. I acknowledge that, unlike the section at issue in Attavar, section 15 does not specifically mention the criterion “the possibility of deterioration.” Nevertheless, in my view, evidence establishing the possibility of this kind of deterioration would have been relevant in determining whether Ms. Loyst’s claim for rehabilitation was “reasonable and necessary” within the meaning of section 15(4).

I am also not able to find that Ms. Loyst was required to have a B.A. to pursue a career a as probation and parole officer. Ms. Claudia Maurice, the occupational therapist who submitted the treatment plan for rehabilitation benefits,⁶ testified that while such a degree was “recommended”, a person who only had a community college diploma could still be considered for employment as a probation and parole officer. Her evidence was more specific than the following comment made by Mr. Marcel Jean, a “Certified Vocational Evaluation Specialist”, in his report to Allstate dated December 12, 2005: “completion of her current training (BA Honours Psychology) would allow her to pursue” employment as a probation and parole officer.⁷ This comment did not constitute evidence that the completion of such a degree was required to pursue employment as a probation and parole officer.

Finally, Ms. Loyst acknowledged at the hearing on January 14, 2008 that she has recently become the temporary sole custodial parent of three children, all under the age of five. She also confirmed that she continues to work full-time. When asked whether, in these circumstances, it was realistic to assume that she would be able to complete the remaining seven courses she needs to obtain her B.A., Ms. Loyst maintained that it was but I remain doubtful. The evidence was that she did not resume her studies in the fall of 2006 after she started to work full-time in July 2006. She testified that this was because she “ran out of money and had to quit school.” But it was not made clear to me how she would be able pay her own living expenses, and those of the three children in her custody, without continuing to work full-time. Indeed, she did not testify that she intended to stop working full-time or that she intended to complete her remaining courses on a part-time basis, thus leaving me to wonder how she would be able to do it all. In my view, her rehabilitation had to be realistic in order to be reasonable. Of course, her situation may change but I am required to base my decision on the facts at the time of the hearing.

Microwave oven

I note that this claim was not made until 2005, almost three years after the accident. Ms. Loyst testified that she required a microwave oven due to her tendency to forget and burn items cooked in an ordinary oven. While she attributed this forgetfulness to the accident, there is no medical evidence to support a finding that her problems with forgetfulness continued this long after the accident. There is, on the other hand, evidence that she already had a microwave oven in 2004.⁸ No explanation was provided as to why Ms. Loyst no longer has this microwave and no bill was presented for its purchase.

For these reasons, I reject Ms. Loyst’s claims for RBs in relation to tuition fees, a laptop computer and a microwave oven.

Income Replacement Benefits

The relevant section reads as follows:

(2) The insurer is not required to pay an income replacement benefit,

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

In a report dated December 19, 2005, ⁹ written shortly after the post 104-week period, Ms. Loyst’s family physician, Dr. Anne Duvall, listed Ms. Loyst’s accident-related injuries as follows: “Closed head injury resulting in headaches with subsequent post-concussion Syndrome; Pain on the left side of her head; Pain in the interior chest, mid-back and at the scapular level and inferior to the left scapula; Poor sleep due to pain; Pain in the buttock and left leg; Panic attacks associated with driving phobia.” Dr. Duvall then listed her diagnoses of Ms. Loyst’s injuries as follows: “Concussion; WAD II; Thoracic sprain/strain; Lumbar sprain/strain with radiculopathy to the left leg; Panic Attacks; Post Traumatic Stress Disorder; Driving Phobia; and Adjustment disorder with mixed anxiety and depressed mood.”

Dr. Duvall’s report noted that Ms. Loyst’s anxiety and driving phobia problems had been assessed in February 2004 by Dr. S. McCullagh at the Traumatic Brain Injury Clinic at Sunnybrook & Women’s College Health Sciences Centre and that Dr. McCullagh had recommended medication and psychological treatment for anxiety management strategies. Dr. Duvall’s report also noted that an MRI conducted in September 2004 “showed L4-5 para-central disc herniation and small T5-6 central disc herniation.” Dr. Duval concluded her report with the following prognosis:

Physical – When last assessed in my office October 24, 2005, [Ms. Loyst] continued to complain of intermittent left, low back pain and constant pain in the mid-spine area. She requires the ability to adjust her work environment to allow her to sit and stand intermittently through the day as required. A physiatrist would be in the best position to be able to answer the question of her long-term prognosis in this regard. There is a possibility that if her left leg sciatica recurs that she could require decompression in the future. [Ms. Loyst] prefers to attend a gym program as a preventative measure.
Psychological – She continues to see Dr. Mermigis [a psychologist] regarding her anxiety and driving phobia. She continues to have significant anxiety in the snow. Dr. Mermigis is the best to comment on her prognosis in this regard.

In short, according to this report, Ms. Loyst’s ongoing problems in the post 104-week period were thoracic and low back pain, left leg sciatica and a driving phobia. Dr. Duvall testified at the hearing that, in her opinion, the onset of back and leg pain after the accident demonstrated a causal link between the disc herniations revealed by the MRI and the accident. However, Dr. Duvall expressed no opinion, in either her report or in her testimony, about whether Ms. Loyst’s ongoing problems prevented her from engaging in employment for which she was reasonably suited. Dr. Duvall’s report specifically deferred to the opinion of a physiatrist as to the disabling effect of Ms. Loyst’s physical symptoms and to Dr. Mermigis as to the prognosis in relation to her driving phobia. Moreover, Dr. Duvall acknowledged on cross-examination that she would defer to the opinion of specialists on the interpretation of the MRI results.

Ms. Loyst was, in fact, assessed by three specialists in relation to her physical problems, two physiatrists and an orthopaedic specialist. The first physiatrist, Dr. Cheryl Masanic, examined Ms. Loyst at Dr. McCullagh’s request. Dr. Masanic’s report, dated May 13, 2004, indicated that a copy was sent to Dr. Duvall but Dr. Duvall’s report of December 19, 2005 made no mention of it. That is significant because whereas Dr. Duvall diagnosed “lumbar sprain/strain with radiculopathy to the left leg”, Dr. Masanic’s examination of the lumbar spine revealed “no evidence of radiculopathy or myelinopathy.” In addition, Dr. Masanic noted that “she has some ongoing forgetfulness and problems with organizational skills but is just about back to where she was premorbidly.” While Dr. Masanic recommended further therapy, her report also stated: “I assured [Ms. Loyst] that her symptoms will continue to improve and full recovery is anticipated.”¹⁰

In October 2004, Ms. Loyst was examined at a Disability Designated Assessment Centre in connection with her entitlement to IRBs during the 104-week period. While not a specialist, I note that Dr. H. Platnick, “M.D.”, also found no indication of radiculopathy in the extremities. In fact, Dr. Platnick was unable to identify any musculoskeletal or neurological impairment that would prevent Ms. Loyst from returning to her pre-accident job and Ms. Pearl Mark, kinesiologist, found that she “demonstrates strengths meeting the light industrial level.”¹¹

On March 16, 2006, Ms. Loyst was examined by a second physiatrist, Dr. A. Oshidari, at a post 104-week Disability Designated Assessment Centre. Like Dr. Masanic, Dr. Oshidari found no sign of lumbosacral radiculopathy. He also found no sign of thoracic myleopathy, thoracolumbar radiculopathy, trochanter bursitis or piriformis tightness and concluded that Ms. Loyst’s neurological examination was completely within normal limits. Furthermore, Dr. Oshidari provided the following analysis of the results of the MRI:

… review of documentation reveals she was assessed by Dr. Masanic [a physical medicine and rehabilitation specialist], and the complaints were pain in the back with some radiation to the right buttock, not the lower extremity. Dr. Masanic also stated that there was no sign of radiculopathy or myelopathy. Therefore, there is a good possibility that the results of the MRI based on her presentation to Dr. Masanic are just coincidental findings.¹²

Dr. Oshidari concluded that there were no “medical restrictions” preventing Ms. Loyst from returning to “her previous vocational activity.”

As mentioned, Ms. Loyst was also examined by one orthopaedic specialist, Dr. Michael Korkola, at Allstate’s request on July 4, 2004. In his report, dated July 26, 2004,¹³ Dr. Korkola acknowledged Ms. Loyst’s complaints of mid-thoracic and lumbar discomfort and agreed that she had “a mild scoliosis within her thoracic spine with associated degenerative disk disease [which] was likely exacerbated by the accident.” Still, Dr. Korkola’s own examination found “no significant system objective findings … with respect to her musculoskeletal system or neurological examination in either the upper or lower extremities.” Nevertheless, due to an “episode of urinary incontinence as well as her previous subjective paresthesia within both lower extremities,” Dr. Korkola recommended an MRI “to rule out any subtle cord compressions associated with her thoracic degenerative disk disease.” He wrote: “Assuming this is normal (no cord compression), I would recommend no restrictions from a musculoskeletal standpoint.”

In his report dated November 8, 2004, written after the MRI results were received but without further examination, Dr. Korkola observed:

In summary, the alignment of the spine has been maintained. The vertebral body heights are within normal limits. There are multi-level spondylitic changes with a small central disk herniation at the T5-T6 level. It does press the anterior aspect of the cord, more so on the left than on the right. No abnormal cord signal was identified.

There are also some changes within her lumbar spine, which were not clinically significant based on her signs and symptoms at the time of her last assessment [in July 2004].

[Ms. Loyst] does have some degenerative changes with a small disk herniation at the above noted level. This would account for her ongoing discomfort within her spine. As mentioned previously, her neurological examination is normal.

Given the impingement on the spinal cord, I would recommend that she be assessed by a neurosurgeon before returning back to full activities. I suspect that this will be treated non-operatively. Ultimately, she should be able to return back to full activities with no physical or medical restrictions from a musculoskeletal standpoint.

I confess to some difficulty understanding one aspect of Dr. Korkola’s opinion. Did “the impingement on the spinal cord” referred to in his report of November 8, 2004 constitute a “cord compression” of the kind referred to in his report of July 4, 2004? However, even if it did, Dr. Korkola also evidently thought, in November 2004, that “[u]ltimately, she should be able to return back to full activities with no physical or medical restrictions from a musculoskeletal standpoint.” His overall opinion was, therefore, in keeping with the opinions of Drs. Platnick and Oshidari who, on the dates of their examinations, perceived no restriction to Ms. Loyst’s returning to pre-accident employment and the opinion of Dr. Masanic who, in May 2004, also foresaw full recovery. As Mr. Kirby correctly pointed out, since Dr. Duvall did not express any opinion on the issue, there was no medical evidence before me that Ms. Loyst was unable to engage in any employment for which she was otherwise reasonably suited.

The existence of such employment was confirmed by the “Transferable Skills Analysis” report written by Mr. Marcel Jean, the “Certified Vocational Evaluation Specialist” mentioned earlier.¹⁴ Mr. Jean concluded that with “her current skills and training”, Ms. Loyst was capable of returning to either her pre-accident job or to any of several other kinds of jobs available in her home town. Again, Ms. Loyst did not challenge this report or present any evidence to the contrary. Indeed, Ms. Loyst is currently working full-time at a job in her home town. Moreover, since Ms. Loyst acknowledged that she is able to drive to job locations in her home town, even in snowy conditions, her driving phobia does not constitute a psychological barrier to her engaging in such employment.

Finally, for the reasons provided in connection with Ms. Loyst’s claim for rehabilitation benefits, I do not accept that the jobs identified by Mr. Jean, or the job she currently has, cannot be considered suitable because they do not conform to her pre-accident career goal of becoming a police or corrections officer.

Accordingly, I find that Ms. Loyst was not entitled to IRBs under section 5(2)(b).

Repayment

The relevant parts of section 47 read as follows:

(1) A person shall repay to the insurer,

(a) any benefit under this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud;

(b) … (e)

(2) If a person is required to repay an amount to an insurer under this section,

(a) the insurer shall give the person notice of the amount that is required to be repaid; and

(b) if the person is receiving an income replacement or caregiver benefit, the insurer may give the person notice that the insurer intends to collect the repayment by deducting up to 20 per cent of the amount of the benefit from each payment of the benefit.

(3) The obligation to repay a benefit does not apply unless the notice under subsection (2) is given within 12 months after the payment was made.

(4) Subsection (3) does not apply if the benefit was paid as a result of wilful misrepresentation or fraud.

(5) An insurer that has given the notice referred to in clause (2) (b) may collect the repayment by deducting up to 20 per cent of the amount of the benefit from each payment of the benefit.

(6) The insurer may charge interest on an amount repayable under this section from the fifteenth day after notice is given under subsection (2) at the bank rate in effect on that day.

(7) In subsection (6),

“bank rate” means the bank rate established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the banks listed in Schedule I to the Bank Act (Canada).

As previously indicated, the repayment issue arose partly because Ms. Loyst did not disclose her return to part-time work in June 2005 with the result that Allstate continued to pay her IRBs, without deducting her earnings, until December 2005. In a previous decision, I found that Ms. Loyst’s failure to disclose her earnings was misleading conduct and undermined her credibility. This finding heavily influences my approach to the question of whether Allstate was obliged to include in Ms. Loyst’s IRB calculation the income she allegedly earned from the roofing business she ran with her husband in the year prior to the accident.

Mr. Kerr submitted that Ms. Loyst must have earned this income because she declared it in her 2003 Income Tax Return. “Who,” he asked rhetorically, “declares income he/she did not actually earn?” Ms. Loyst, answered Mr. Kirby, pointing to her admission that she declared all the income earned from the roofing business even though her husband did all the roofing and she only spoke to clients and kept the books. Mr. Kirby submitted that Ms. Loyst and her husband probably arranged their affairs this way in order avoid his child-support obligations. Perhaps, but of greater concern to me were the facts that Ms. Loyst did not file her 2003 Income Tax Return until 2006 and then presented no verifiable business records to Allstate¹⁵ or at the hearing. Given my doubts about Ms. Loyst’s credibility, I am not prepared to accept her unsubstantiated evidence that she earned income merely because, at a point well after the accident, she told Revenue Canada that she did. Ms. Loyst may have calculated that a one-time tax payment was well worth an inflated, and what she obviously hoped would be on an ongoing, IRB claim. I, therefore, find that Allstate was not obliged to include these earnings in the calculation of Ms. Loyst’s IRB rate. The parties agreed that if this was my conclusion, the amount of the overpayment was $4,487.11.

Mr. Kirby submitted that interest on this overpayment should be payable from June 2005 when Ms. Loyst started to earn, and failed to disclose, a part-time income. I acknowledge that section 47(4) allows an insurer to recover payments made more than 12 months before notice was given if the payments were made as a result of wilful misrepresentation or fraud. However, since an insurer cannot recover payments under any circumstances without first giving notice under section 47(2), I accept Mr. Kerr’s submission that section 47(6) stipulates the date from which interest is payable: “from the fifteenth day after the notice is given.”

If the parties are unable to agree on the exact amount of interest owing, they will advise within 30 days of this decision.

Attendant Care Benefits

The relevant parts of section 16 are as follows:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit.

(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;

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

Ms. Loyst testified that she stayed at her parents’ home in the country for the first few months after the accident and that, during that time, her mother helped her with “everything”, including: getting in and out of bed, toileting, showering, washing and brushing her hair, putting on her make-up and skin lotions, taking medication, getting dressed, cutting toenails and preparing food. Ms. Loyst stated that in February 2004, she moved back to the apartment she occupied in town at the time of the accident so that she would not have to be driven around as much. She testified that her mother nevertheless continued to help her, coming to her apartment to supervise her in the shower in case she fell and preparing meals.

Ms. Loyst’s mother testified that following the accident, she assisted her daughter with “personal grooming”, including bathing, showering, washing her hair, applying make-up and dressing, and other kinds of “personal care”, including making sure that she took her medication and preparing meals. Her recollection was that Ms. Loyst moved back to her apartment in town around January 25, 2004. She stated that she went to the apartment to help Ms. Loyst with hair washing, dressing and meal preparation. She stated that there was also still some concern that Ms. Loyst would fall in the shower due to dizziness. She acknowledged, however, that she may have assisted Ms. Loyst in her own apartment more to be a supportive mother than because Ms. Loyst really required the help.

Mr. Kerr showed Ms. Loyst’s mother the attendant care invoices submitted to Allstate for the period December 27, 2003 to April 17, 2004 and she generally confirmed their contents. However, I note that while the testimony of Ms. Loyst and her mother, and indeed the invoices themselves, indicated that Ms. Loyst gradually required less assistance as time passed, the number of hours claimed remained constant at 10 per week from November 14, 2003 to April 17, 2004. Ms. Loyst attempted to explain this as the inclusion of her mother’s travel time but Ms. Loyst’s mother denied that travel time was included.

Allstate terminated Ms. Loyst’s ACBs effective December 13, 2003, one month after the accident. This decision was based on the results of an in-home assessment of Ms. Loyst’s attendant care needs conducted at her parents’ residence on December 17, 2003 by Ms. Angela Fleming, an occupational therapist. Ms. Fleming concluded that Ms. Loyst required no assistance in the categories mentioned in Form 1 as “she demonstrated the physical tolerances to complete” the activities on her own. Ms. Fleming also noted: “more flow was demonstrated during functional activities than during formal testing of range of motion.”

On March 11, 2004, Ms. Loyst underwent a Designated Assessment Centre in-home assessment of her attendant care needs. This assessment took place in her own apartment and was conducted by Mr. Dan Gauthier, an occupational therapist, and Ms. Lisa Highstead, a registered nurse. These assessors also concluded that Ms. Loyst “demonstrated independence for the performance of all attendant care tasks.” Like Ms. Fleming, they noted inconsistencies in Ms. Loyst’s presentation. While Ms. Loyst complained to them about losing her balance, they noted that “balance deficits were not evident during static and dynamic, standing, walking and stair climbing.”

Mr. Kerr argued that these assessments failed to consider the limiting effects of Ms. Loyst’s accident-induced pain. I disagree. Both assessments duly noted Ms. Loyst’s complaints of pain. In the end, however, the point of these assessments was not to measure Ms. Loyst’s pain. It was to determine whether Ms. Loyst could engage in the various categories of self-care without assistance. On that issue, I find that these assessments provided more reliable evidence than the evidence of Ms. Loyst and her mother. In addition to the weaknesses already mentioned, I note that while Ms. Loyst testified that she moved out of her parents’ residence February 2004, other evidence confirmed that she moved out at the beginning of January 2004.¹⁶ Had Ms. Loyst still required attendant care services at this time, I find it unlikely that she would have moved out of her parents’ residence. In my view, Ms. Loyst’s decision to move out at the beginning of January 2004 was consistent with the conclusion reached by Ms. Fleming following her assessment on December 17, 2003.

Accordingly, I reject Ms. Loyst’s claim for ACBs after December 13, 2003.

Housekeeping Services

The relevant parts of section 22 are as follows:

(1) The 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.

(2) The amount payable under this section shall not exceed $100 per week.

(3) No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability.

Unlike the invoices submitted in support of Ms. Loyst’s ACBs claim, the invoices submitted in respect of her HKs claim did not specify the services rendered. This was contrary to Allstate’s request of February 2, 2004¹⁷ which asked Ms. Loyst to provide “a list of tasks completed by the service provider.”¹⁸

At the hearing, Ms. Loyst testified that when she moved back to her own apartment, her mother came and did the following housekeeping tasks: laundry, dusting, cleaning, sweeping, putting away dishes, vacuuming and cleaning the stove. Ms. Loyst stated that, at some point, she was able to do light housekeeping tasks and use light cleaning tools but that she could still not move a bed or do vacuuming. The invoices submitted in respect of her HKs claim were for either $400 or $500 per month until December 31, 2004. Ms. Loyst testified that there was no change in the services provided in the year 2004. Her claim continued into the year 2005 but was not supported by receipts. Ms. Loyst testified that she needed less help in the year 2005 though she could still not move beds or do vacuuming.

Ms. Loyst’s mother gave the following list of housekeeping services that she provided after Ms. Loyst moved back to her own apartment: vacuuming, cleaning the oven, cleaning the bathroom and its walls, laundry and washing floors and windows. She was no longer able to say how long it took her to provide these services but stated that the invoices were based on what she and her daughter thought would be “the average of what a professional cleaner would charge.” She acknowledged that she had submitted no invoices beyond the year 2004 but stated that she “probably continued to provide services.”

Ms. Fleming, the occupational therapist who had assessed Ms. Loyst’s attendant care needs on December 17, 2003, attended at her apartment on or prior to January 8, 2004 to assess Ms. Loyst’s need for housekeeping services at that location. In her report dated January 8, 2004, she concluded that Ms. Loyst needed three hours of housekeeping assistance per week for an additional four weeks to provide the following services: “mopping of floor (upstairs and down) – 1 hour/week, cleaning of bedroom and bathroom area – 1 hour/week, grocery shopping – 0.5 hours/week, … snow shovelling – 0.5 hours/week.” She also recommended the purchase and instruction on how to use the following assistive devices: “long handled dustpan, long handled duster, laundry bag and Swiffer Wet Jet.”

Allstate’s decision to stop paying for housekeeping services effective March 1, 2004 appears to have been based on the re-assessment of Ms. Loyst’s housekeeping needs by another occupational therapist, Mr. Rasul Kassam, on March 17, 2004. Mr. Kassam concluded that Ms. Loyst had “no need for housekeeping assistance as the client demonstrated sufficient physical and functional tolerances to complete.” I acknowledge that Mr. Kassam noted Ms. Loyst’s complaints of pain and then observed: “It is this therapist’s opinion that based on the client’s date of loss and ongoing complaints (i.e., pain, fatigue, anxiety, dizziness, headaches, panic attacks and decrease in memory), further testing is recommended with regards to the client’s need for assistance.”

Nevertheless, the only evidence before me that Ms. Loyst required housekeeping assistance beyond March 2004 was the evidence of Ms. Loyst and her mother. I find that evidence unreliable. In particular, I find it unlikely that Ms. Loyst’s need for housekeeping assistance remained unchanged throughout 2004 or that it even continued into 2005. That finding would be contrary to Ms. Loyst’s own evidence that at some point early in that period, she started to do light housekeeping tasks and use light cleaning tools. It would also be contrary to the findings of Ms. Pearl Mark, kinesiologist, who found in October 2004 that Ms. Loyst “demonstrates strengths meeting the light industrial level.”¹⁹ In addition, Ms. Loyst’s attempt to maintain the claim beyond March 2004 suffered from her failure to submit any supporting documents, despite Allstate’s specific and reasonable request that she do so.

Based on the evidence as a whole, I reject Ms. Loyst’s claim for HKs after March 1, 2004.

EXPENSES:

If the parties cannot agree on expenses, they will follow the procedure for dealing with expenses set out in the Dispute Resolution Practice Code, 4th edition.

March 6, 2008

David Leitch Arbitrator

Date