Aaron Lane v. Economical Mutual Insurance Company, 2008 ONFSCDRS 95

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 95

FSCO A06-000972

BETWEEN:

AARON LANE (a minor)

(by his parent Stephen Lane)

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert A. Kominar

Heard: December 17, 18, 19, 2007, at the offices of the Financial Services Commission of Ontario

Appearances: Meighan Ferris-Miles for Mr. Lane

Lee Samis for Economical Mutual Insurance Company

Issues:

The Applicant, Aaron Lane, was injured in a motor vehicle accident on July 1, 2005. He applied for attendant care benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical denied entitlement for certain attendant care claims while Aaron was in hospital. The parties were unable to resolve their disputes through mediation, and Mr. Lane 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:

Is Aaron Lane entitled to attendant care benefits for the period from July 29 through September 30, 2005?

Result:

Aaron Lane is entitled to attendant care benefits for this period of time at the rates agreed on by the parties.

EVIDENCE AND ANALYSIS:

There is a single and narrow issue involved in this hearing. The parties agree that Aaron Lane was involved in a very serious automobile accident on July 1, 2005. He was four years old at the time and suffered serious head trauma, so serious that he had to have a very specialized kind of head dressing to help his skull heal. It was a dressing that even the experts at The Hospital for Sick Children (“Sick Children’s Hospital”) had little experience in using. Thankfully Aaron has made a remarkable recovery, and there is no doubt that this was in large part due to the love and devotion of his family who stayed with him throughout his time in hospital.

This arbitration relates to a claim for attendant care benefits that were said to be incurred while Aaron was a patient at Bloorview Kids Rehab (“Bloorview”). After the accident he was, for a period of time, in Sick Children’s Hospital. The level of nursing and medical care that he received while there was very extensive and around the clock. Despite the fact that his parents stayed with him at Sick Children’s Hospital, no claim is being asserted for attendant care benefits while he was there.

After being discharged from Sick Children’s Hospital, Aaron was admitted as an inpatient at Bloorview for the period from August 5 through September 8, 2005. He continued regular participation at Bloorview in an outpatient program until September 30, 2005. It is noteworthy that even while he was at Bloorview he had to regularly reattend at Sick Children’s Hospital to deal with changing his head dressings as they were so specialized that they could not be done by the staff at Bloorview.

The dispute between the parties here, once again, is not about Aaron’s need for attendant care services. Nor is it particularly related to whether parents and other family members can claim to be the service providers of attendant care pursuant to the Schedule. In this regard I was pointed to the recent decision of Arbitrator Murray in Haimov and ING Insurance Company² as support for the proposition that the parent/child relationship does not preclude a claim for attendant care if services required are above and beyond those provided in a hospital or long term care facility.

Economical’s argument is that the situation at Bloorview, at the time Aaron was a patient there, was that it had attendant care service providers available to care for Aaron, but that these services were not accessed by Aaron’s parents. Rather, they chose to stay by their son’s side and care for him personally. Mr. Samis carefully framed this argument so as to not challenge, in any way, the decision Aaron’s parents made to stay by his side and care for him. Rather, the point Economical makes is that Bloorview is a facility that does have attendant care services available for patients who need it. In fact, they have an actual budget for these services and designated service providers whom they can call on when needed. In this case however, Economical’s claim is that Bloorview did not provide the attendant care services it had available to Aaron, and this was the cause for Aaron’s parents to believe that they had to go beyond their means to provide as any loving and caring parent would do for a child in these circumstances. In conclusion, Economical’s view is simply that in this particular situation there was attendant care available to Aaron at Bloorview which was not used and for that reason it cannot be concluded that the attendant care which the parents provided was both reasonable and necessary as required by section 16 of the Schedule. In effect, Economical is arguing that the OHIP funding which Bloorview has to provide for its young patients who need attendant care, works analogously to the way collateral insurance works for other kinds of accident benefits. It was incumbent on Aaron’s parents to exhaust what was available to them at Bloorview before they could plausibly claim that further attendant care was still required and that they were the reasonable people to provide it to him.

I am not going to review the evidence provided by Aaron’s parents. I simply will note that I congratulate Economical for not taking issue with the need Aaron had for various kinds of supervision while at Bloorview and for keeping the issue in dispute narrow. Any parent who heard of the sacrifices these parents made to be with their son would have been moved to admiration for their love for their son.

The evidence which I heard that is relevant to my decision came from the staff at Bloorview.

Dr. Rumney has worked at Bloorview for approximately 20 years. He is currently the Director of the organization. Unlike the 1:1 nurse to patient ratio that Aaron experienced at Sick Children’s Hospital, he noted that the normal daytime ratio at Bloorview is about 5:1 and it falls to about 12:1 during the night. Patients do not always deal with the same nursing staff while they are there due to their rotation schedules.

Dr. Rumney described the intake process at Bloorview, which is oriented to rehabilitation. He stated that prior to admission the family is interviewed to determine the level of the need for services. Significantly Dr. Rumney stated that if the head nurse who conducts the intake finds that the patient has additional needs that the normal nursing complement cannot properly handle, they will bring on additional staff. He advised that this is not nursing staff but rather an attendant or child care worker. These are individuals whom Bloorview brings in on contract for specific patients with specific needs.

The doctor was asked whether learning that the parents were willing to stay by the child’s bedside had any impact on a decision to bring in additional attendants. His answer was that yes it did. He also clarified that the specific duties of nursing staff are not really attendant care related. For instance, attendants are hired to help children get dressed or go to the bathroom; whereas nurses primarily administer medication and attend to catherization.

On cross-examination Dr. Rumney advised that on intake there is an inquiry as to whether there is a source of funding for any needed attendant services. If there is auto insurance or some other source of funding, Bloorview expects that to be accessed. He was asked what would happen if a child needed attendant care but did not have access to other funding or parents who were willing and able to provide that care. His response was that Bloorview has a budget for hiring attendants in those circumstances and they would hire whomever they had to in order to provide the care the child needed. This funding, he advised, is a specific element of the global funding his hospital receives from the government to provide health care. However, Dr. Rumney noted that it is a relatively small budget amount that is set aside for providing these services. He provided no evidence as to how the amount allocated for attendant care services is determined in Bloorview’s annual budgeting process.

Evidence was also provided by Nicole Young, who is an occupational therapist at Bloorview and works specifically in their brain injury rehabilitation program. Her evidence largely related to her role in educating families of children at Bloorview about the kind of care they would need to give children after leaving the institution. This is a normal part of the interaction with all patients, as she emphasized that it is important that all parents learn what to watch for at home and how to respond to problems that might occur. She also stated that staff members known as “child youth workers” are available for children with high needs. She also confirmed that the hospital can hire attendants if necessary, but more often than not it is the family who stays with the child and assists when hospital staff are not available.

I will observe once again that both of the witnesses from Bloorview confirmed that Aaron needed more than the normal amount of nursing care available at Bloorview. The question is whether it was reasonable and necessary for the parents to provide that care and expect Economical to pay for it without first accessing the attendant care that was actually available through the institution.

It is a challenge to sort out the personal aspects of Mr. and Mrs. Lane’s decision to stay with Aaron and help him through this very dangerous and frightening time and their decision to characterize whether the “attendant care” they provided was above and beyond what all parents would normally do for their children.

I find it salient that Bloorview is not in law a long term care facility, nursing home, home for the aged or chronic care hospital, as set out in section 16(2)(b) of the Schedule. It occupies a unique institutional place under the regulations to the Hospitals Act. For this reason I find that this case can be distinguished from the decision in Haimov referred to above.

The test for attendant care benefits is that they be reasonable and necessary. I find that there is no dispute in this case that some form of attendant care was both reasonable and necessary for Aaron during the period of time in question. And I further note that the parties agree on the quantum of attendant care if entitlement exists in this situation. However I am persuaded by Mr. Samis’ argument that it is not simply attendant care per se that is the object of focus in the section but the specific type of attendant care. Was it reasonable and necessary for Mr. and Mrs. Lane to provide this care to their son? That is the actual question involved here.

In the circumstances, the existence of funding for attendants at Bloorview is not contested. It is there to be accessed for any child who needs it. Clearly in these days of tight hospital funding, there is a preference for hospitals to access other sources of available funding for such services if possible. This is completely understandable on the hospital’s part. But is it reasonable for an auto insurer to be asked to pay for services which have admittedly been funded under OHIP? I agree with Mr. Samis that the auto insurer is intended in these circumstances to be the insurer of last resort and that when such funding is available it must be accessed if at all possible first before requests are made to the auto insurer. I find that if a choice is made not to access such funding it ought to be treated analogously to collateral benefits which may be available to someone which they simply choose not to apply for and use. It is unreasonable in my view for Bloorview to treat auto accident victims differently than they do other people. In general, I find that Economical should be entitled to a credit against attendant care benefits in the amount that Bloorview would have paid for an attendant for Aaron while he was in their program.

However, there is one other aspect to this case. Based on the evidence which I heard from Dr. Rumney and Ms. Young, it is clear that these parents were not specifically advised that there was funding for attendants available. In fact, they were specifically encouraged to access their auto insurance and were not offered these services. So the analogy to collateral insurance must also take into account that these parents did not know about, nor did they have any reason to inquire about these services. They were just allowed to provide the care for Aaron themselves and nothing further was said. In effect they did not know that they had these collateral benefits available and thus I find that in this specific case it would be unreasonable to expect them to have accessed them. I also find that Economical did not at the time advise them that they should inquire about what the hospital can provide if necessary.

In conclusion, I find that it was not reasonable and necessary for Aaron’s parents to expect Economical to pay for the attendant care they provided without taking into account what assistance Bloorview was mandated to provide to him if necessary. However, given the unique status of Bloorview in having such funding and that it is not widely publicized that this funding is available, it was reasonable for Mr. and Mrs. Lane to provide the care which they had no reason to believe anyone else would do for them. Had they accessed what Bloorview would have provided there may still have been additional care needed, but there is no way at this point in time to determine what that level of care would have been.

Fairness, taking all things into account, requires that Economical pay the agreed upon amount for attendant care incurred for Aaron while at Bloorview. In the future there may be different results should this situation occur again now that it is clear that attendant care services are available at this institution if requested.

EXPENSES:

I exercise my discretion to award Aaron Lane his reasonable expenses in this arbitration.

June 18, 2008

Robert A. Kominar

Arbitrator

Date