Mr. S. v. Economical Mutual Insurance Company, 2011 ONFSCDRS 63

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 63

FSCO A10-000970

BETWEEN:

MR. S.

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: February 7, 8, 9, 2011 in Kingston, Ontario

Appearances: Frank Van Dyke for Mr. S.

Shawn J. O’Connor for Economical Mutual Insurance Company

Issues:

The Applicant, Mr. S., was injured in a motor vehicle accident on May 2, 2006. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical has been continuously paying Mr. S. attendant care benefits under section 16 of the Schedule, but at a lower rate than he claims. The parties do not dispute the entitlement period, only the quantum of the attendant care benefit. They did not resolve this dispute through mediation, and Mr. S. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

This decision concerns sensitive personal health issues and Mr. S.’s initial is substituted for his full name to avoid embarrassment.

The issues in this hearing are:

Does Mr. S. suffer a catastrophic impairment as a result of the accident under section 40 of the Schedule?
What is the amount of Mr. S.’s monthly attendant care benefit under section 16 of the Schedule?
Is Mr. S. entitled to a special award under section 282(10) of the Insurance Act?
Is either party entitled to expenses of the arbitration under section 282(11) of the Insurance Act?

Result:

Mr. S. suffers a catastrophic impairment as a result of the accident under section 40 of the Schedule.
Mr. S.’s attendant care benefit is $2,987.47 under section 16 of the Schedule.
Mr. S. is entitled to a $6,000 special award under section 282(10) of the Insurance Act.
The issue of the parties’ expenses of this arbitration is deferred.

EVIDENCE AND ANALYSIS:

Mr. S. was 51 years old at the time of the accident. He was single, lived with his elderly mother and had held a dishwasher job for ten years. Mr. S. came to Canada from the Azores Islands and communicates chiefly in his native Portuguese language. He has a Grade 3 education.

Mr. S. was knocked down by a car while crossing a downtown Kingston road one morning on his way to work. He never returned to his job and moved into his brother-in-law’s home shortly after the accident when his family became concerned that he needed assistance.

Mr. S.’s main physical complaints after the accident are chronic neck, back pain, shoulder pain, chronic headaches and periodic bilateral knee pain. He also experiences mild tremors, weakness, and confusion.

The multiple medical diagnoses support Mr. S.’s diminished physical and psychological capacity. Imaging results show that Mr. S. suffers a low spine disc bulge, surrounding osteophytes, mild or moderate spinal stenosis at various levels, and some brain atrophy associated with the frontal or parietal lobes.²

Mr. S. is diagnosed with depression. He sleeps poorly and his cognition, memory, concentration and balance are poor. Mr. S. has trouble dressing, eating and performing his daily hygiene. He does not prepare meals or perform household duties. He uses a rolling walker chair or cane, and is bowel/bladder incontinent, wearing adult diapers almost 24 hours a day. Mr. S. has rejected a recommendation to undergo an in hospital psychiatric assessment and treatment program.³

Mr. S. attends physiotherapy twice a week, a pain clinic once a month and receives psychological counselling once a month. Nerve block injections are used for his spinal problems, and he takes a variety of relatively strong prescription medications, including narcotics.

At the commencement of the hearing, Economical conceded that Mr. S.’s psychological/ emotional reaction to the accident has significantly affected his ability to conduct his own personal care. Economical agrees that Mr. S. suffers a marked mental or behavioural disorder as a result of the accident that qualifies him as catastrophically impaired under section 40 of the Schedule.

Based on this understanding, I find that Mr. S. suffers a class 4 marked impairment due to a mental or behavioural disorder as a result of the accident under subsection 2(1.2)(g) of the Schedule. With the parties’ consent, I have made an Order that Mr. S. qualifies for a catastrophic impairment designation under section 40 of the Schedule, enabling him to claim enhanced accident benefits.

Mr. S.’s qualification increases the maximum he can claim for attendant care benefits under section 16 of the Schedule from a cap of $3,000 for non-catastrophic insured persons to $6,000 per month for those catastrophically impaired. Since Mr. S. first applied for attendant care benefits in April 2010, Economical has been paying $2,106.76 per month ($2,054.30 short months) from September 2009. Mr. S. does not claim benefits before September 2009.

The services have been performed by Mr. S.’s brother-in-law, Mr. Joseph Silva, Ms. Jodie Armstrong and Mr. Silva’s three sons. None are professionally qualified support workers, and they are paid as laypersons.

In arbitration or court, the insured must establish on a balance of probabilities the amount of care sought is reasonable and necessary based on the evidence. The divergent opinions of the parties’ occupational therapists (OT) are the basis of the attendant care analysis.

Economical’s position is based on Ms. Sherry Taillefer’s opinion that $1,991.54 is the appropriate monthly rate. Mr. Phillip Wendt’s OT report recommending $6,682.91 for attendant care forms the basis of Mr. S.’s position that he is entitled to the maximum cap of $6,000 per month.

Mr. S.’s argument is that he requires round-the-clock supervisory care and cannot be left alone safely. Economical contends that Mr. S. can safely and independently walk, transfer from sitting or lying down to upright or standing, be left alone, and handle some of his personal dressing and hygiene. Economical’s expert bases her opinion on surveillance videotapes that she maintains contradict Mr. S.’s claim he requires 24 hour attendant care.

Mr. Wendt and Ms. Taillifer gave evidence to supplement their reports, along with Mr. S.’s past treating rehabilitation specialist, Ms. Heather Hart. Mr. S., Mr. Silva and Ms. Armstrong testified.

Evidence of Mr. S. and His Attendants:

Mr. S. lives on the top floor of a two-storey home with a basement. Mr. Silva stated that he owns the home and lives upstairs with his adult son, James, and Mr. S. Mr. Silva’s wife and two other sons occupy the remainder of the house.

Mr. Silva was a self-employed carpenter, but has taken on few contracts since he began caring for Mr. S. when he moved into his home. Ms. Armstrong began assisting Mr. S. about three years ago, and visits him for about three hours per day. She started dating Mr. Silva a year after working for Mr. S. The evidence is that Mr. Silva’s sons fill in with Mr. S.’s care, but Mr. Silva and Ms. Armstrong are his regular attendants.

Ms. Armstrong testified she arrives late afternoon and plays games with Mr. S. or watches TV with him. She helps feed him, transfers him to sit or stand, helps dress/undress him, brush his teeth, cuts his nails, washes him and gets into bed. Ms. Armstrong testified that Mr. S. is not safe alone because he easily falls and cannot raise himself. However, she concedes Mr. S. can be alone when he is asleep, only needing help to turn over or get out of bed two or three times a night. The undisputed evidence is that Mr. S. sleeps about four hours.

Mr. Silva stated that he raises Mr. S. up in the morning by using a wide belt around his waist and assists him daily with toileting, shaving, washing his hands and face, toothbrushing and showering two times a week. Mr. Silva cooks all three daily meals, sometimes with Ms. Armstrong’s help, but Mr. S. cannot eat alone because his tremors lead to spills. Mr. Silva drives him to most appointments or to the bank, and also does his laundry.

Mr. Silva stated Mr. S. has become disoriented and lost when walking outside the home alone. He says Mr. S. cannot be left alone because he is unable to get up without assistance if he falls. Mr. Silva admits the provision of an electric bed allows Mr. S. to raise himself up using the overhead bar and adjust the mattress level to get in and out of bed.

Mr. S.’s evidence about his daily routines is basically consistent with his care providers. He maintains he is afraid to be alone if there is an emergency, such as falling, and wants providers close by to lift/hold him when he falls or feels unsteady.

Mr. S. and his attendants state he travels down and upstairs to his living quarters only with steady support from his attendants. Mr. Silva’s current family situation in the home does not permit Mr. S. or himself to move downstairs to accommodate his inability to manage the stairs on his own. Mr. S. does not go outside alone because he loses his way. He feels sad and depressed about his situation.

Mr. S. demonstrates mobility in surveillance videos of June and July 2009, February and October 2010. He opens and closes a car door, transfers from sitting in the car to standing, walks with a cane on the pavement from the street to his physical therapist’s office building and also walks from the street to the front door of his home holding a cane. At his front door, Mr. S. retrieves keys from his pocket, manipulates one into the front door lock of his home and enters the house. He raises his hand to his head at one point too.

Mr. S. is not assisted by another person in any of these activities. Mr. S. and his two assistants do not deny he appears in the surveillance or that he was able to accomplish the depicted activities. They say that medication helps Mr. S. perform these activities for a short term.

The evidence of Mr. S., Mr. Silva and Ms. Armstrong is certainly helpful to paint a general picture of his everyday life. However, Mr. S. and Mr. Silva were reluctant on cross-examination to agree that he shows more mobility in the videos than their examination-in-chief suggests. Their reluctance in accepting that the videos demonstrate Mr. S. can perform the depicted activities establishes that he and Mr. Silva underplay his abilities, and cannot be relied on to accurately portray his full abilities.

Ms. Armstrong did not deny the surveillance that Mr. S. walks short distances alone with a cane, but she explained he uses a walker for longer distances and in the house. She conceded on seeing the surveillance that Mr. S. might be able to toilet on his own if he had a close grab bar and agreed he can be left alone sleeping. Her comments strike me as balanced.

Ms. Armstrong’s even-handed comments cause me to consider her evidence in the context of the expert opinions. While there are no reports from health care providers or security personnel that Mr. S. had any emergency episodes or injuries alone, I place modest weight on her evidence that he may not be able to negotiate the stairs to the second floor of his home unassisted.

Expert Evidence:

Ms. Heather Hart is a rehabilitation specialist who was assigned by Economical to help Mr. S. with his daily activities. She visited him five days a week between March and May 2010 and three times a week in June and July 2010 before her services ended. Mr. S. had an exercise program, and Ms. Hart helped him with walking, managing stair climbs, eating, bed, bath and toileting.

Ms. Hart saw the surveillance videos at the hearing, and was surprised by Mr. S.’s abilities. She had not previously seen Mr. S. walk fluidly or take steps unassisted, use a key to open a door, or open/close a car door himself. She commented that the exercise program she designed for Mr. S. would have been more ambitious if she had been aware of his abilities depicted on the surveillance. Ms. Hart did not present an opinion on attendant care.

Mr. Phillip Wendt was retained by Economical to assess Mr. S.’s attendant care requirements at his home. He also treated Mr. S. bi-weekly for one half to a full hour per day from November 2009 to July 2010, but he made little functional progress.

On September 24, 2009 Mr. Wendt found Mr. S. lying in bed wearing a diaper and undershirt. His verbal replies were limited. Mr. Silva told him that he gets Mr. S. out of bed about three times a day and traverses the apartment using his walker. Mr. Wendt accepted that Mr. S. could not perform virtually all of his daily activities, but almost all of his communications went through Mr. Silva.

Mr. Wendt completed the standard attendant care form, which is divided into three care levels. The relevant portions of the first level are dressing/undressing, grooming, feeding, mobility and laundry. The second level includes hygiene, supervisory care and coordination of activities. The pertinent subjects of the third level care deal with Mr. S.’s incontinence, medication and bathing.

The most contentious elements of Mr. Wendt’s September 2009 attendant care report fall under the heading of routine personal care and supervision. He assigned 630 minutes per week (1.5 hours per day) for supervision of Mr. S.’s general mobility and transfers under level one care, and 7420 minutes supervision per week to assist his independence and safety (17.66 hours per day) as part of the second care level.

In his evidence, Mr. Wendt admitted he would decrease the 630 minutes he assigned for Mr. S.’s mobility supervision under level one care. He based the change on Mr. Silva telling him he would simply be available if required and also on the surveillance. Mr. Wendt agreed he never saw Mr. S. walk as far without a break, use a cane to walk distances or fluidly use his upper and lower extremities as in the surveillance video.

Mr. Wendt stated Mr. S. does not need an attendant for transfers and assistance to all his health care appointments based on his view of the surveillance and Mr. Silva’s information that Mr. S. did not always need direct assistance or supervision. He did not agree the surveillance of Mr. S. opening his locked front door with a key indicates he can manipulate objects without prompting, and he was reluctant to make any specific changes to any categories on his assessment based on the short term video observation, without formally re-assessing Mr. S.

Mr. Wendt did not directly observe some of Mr. S.’s personal care, using the bathroom and car transfers. He based much of his opinion on formal physical testing and Mr. Silva’s inaccurate representation of Mr. S.’s mobility and independence. This undercuts the value of Mr. Wendt’s insistence on his opinion that Mr. S. needs a personal attendant present all day and night.

Ms. Taillefer’s attendant care form was not completed in time to be admitted into evidence, but I accepted her oral evidence concerning Mr. S.’s needs in order to fairly decide the claim. Ms. Taillefer was initially involved by Economical in assessing whether Mr. S. sustained a catastrophic impairment, and she saw him on December 3, 2008, subsequently preparing an occupational therapy assessment report after her second visit on October 28, 2009. These visits ranged between two and three hours.

Ms. Tailleffer recalled that Mr. S. pulled himself up from lying prone in bed, but he needed assistance to stand. He used the walker to visit the bathroom and his movements were slow and laborious. Mr. S. needed help to move onto the toilet. He could not lift his legs without Mr. Silva’s help. His hands shook while holding objects and he could not reach.

Ms. Taillefer was concerned on her second visit because Mr. S. appeared to be relatively inactive most of the time at home, and she opines he risks further physical and psychological deterioration if he remains immobile in diapers for a lengthy period. Specifically, his skin will break down and his mind will further atrophy. Ms. Taillefer is of the opinion that Mr. S.’s twenty-four hour care should provide more physical and mental stimulation than what she saw during her two visits.

Ms. Taillefer specified Mr. S.’s personal needs.⁴ Under level one care, she allowed 315 minutes a week for nail cutting and food preparation, but nothing for Mr. S.’s personal grooming and assistance eating. Mr. Wendt reported 767 minutes per week.

Ms. Taillefer increased Mr. S.’s dressing/undressing times from Mr. Wendt’s 64 minutes/week to 91 minutes because Ms. Taillefer thought it appropriate he dress daily versus Mr. Wendt’s information that Mr. S. dressed four days a week. Ms. Tailleffer reduced the time to wash extra laundry for Mr. S. from Mr. Wendt’s 60 minutes twice weekly to 20 minutes once a week.

For Mr. S.’s level two functions, Ms. Taillefer stated that Mr. S. required 10 minutes a week for bedding changes and 10 minutes weekly for bathroom clean up, as opposed to Mr. Wendt’s 80 minutes for bed/bath/clothing maintenance. Ms. Taillefer agreed with Mr. Wendt’s 60 minutes per week to coordinate Mr. S.’s care.

Ms. Taillefer agreed and disagreed with Mr. Wendt respecting Mr. S.’s health and hygiene functions, the third level of his care. She agreed with Mr. Wendt’s 84 minutes per week for medication assistance. She reduced Mr. S.’s urinary diaper change time from five to two minutes each, which translates Mr. Wendt’s weekly amount from 420 minutes to 294. Ms. Taillefer similarly reduced Mr. Wendt’s 17 minute per service for bowel movement diaper change and clean-up to 7 minutes.

Ms. Taillefer’s reductions of time for Mr. S.’s diaper changes are based on the surveillance of his increased mobility. She did not adequately explain why Mr. S.’s ability to get out of a car to stand or take a short walk necessarily equates with the more cumbersome task of assisting this grown man in a diaper change. Ms. Taillefer reduced Mr. Wendt’s recommended 238 minutes per week to 98 minutes for bowel care diaper changes.

Ms. Taillefer draws further inferences from the surveillance of Mr. S.’s mobility. She opines Mr. S. can perform unassisted tub and transportation transfers because the video shows that he gets up from the car himself. His opening/closing the car door, unlocking his home, raising his arm to his head demonstrates, she says, that he has sufficient dexterity to pull on a shirt, brush his hair, shave himself and eat alone.

Ms. Taillefer allots 20 minutes for bathing assistance twice weekly, a third of Mr. Wendt’s 60 minutes, but does not grant that Mr. S. needs any assistance with bathing transfers (versus Mr. Wendt’s 40 minutes per week). Ms. Taillefer’s 63 minutes for weekly toothbrushing compares to Mr. Wendt’s 98 minutes, due again to reduction of the time per session. She adds 10 minutes weekly to maintain Mr. S.’s supplies.

Ms. Taillefer levelled her largest criticism of Mr. Wendt on his 17.66 hours daily for basic supervisory care, which I understand comprises the remainder of the day not provided under other attendant care services. She testified that four hours daily for general supervision of Mr. S. while he sleeps corresponds to the undisputed evidence that he rests for this period with several interruptions during the night for positioning or visiting the bathroom.

Ms. Taillefer reasons that Mr. S. can be left alone because he goes to health care appointments unassisted and sleeps by himself. She does not grant Mr. S. time for mobility or transfer assistance, as opposed to Mr. Wendt’s 25 minutes per day.

Analysis

Mr. Wendt completely agrees Mr. S. does not require assistance attending appointments. His concession he would decrease mobility assistance significantly reduces the weight of his recommendation for 630 minutes per week.

Mr. Wendt admits that Mr. S. is overall more independent on the surveillance than his assessment and treatment showed. He did not explain why he maintains his view Mr. S. requires twenty four hour per day care where Mr. Wendt admits he demonstrates the ability to attend appointments on his own. His failure to address the contradiction undermines his recommendation for 17.66 daily hours to maintain Mr. S.’s safety and independence 24/7. I do not accept Mr. Wendt’s recommended 7420 minutes per week for safety and independence under the second level of care.

Ms. Taillefer reviewed Mr. S.’s health records and saw the surveillance numerous times, but had only two opportunities to meet and assess Mr. S. at his home. She did not physically test Mr. S. or treat him.

On the one hand, Ms. Taillefer’s opinion draws far-reaching conclusions from the surveillance concerning Mr. S.’s hygiene and personal needs. For example, she allots little to Mr. S.’s personal hygiene based on the premise that if he can raise his hand to his head and retrieve/ manipulate his house keys he can wash, shave himself, shampoo and brush his hair alone. Neither does Ms. Taillefer make a fair inference from the surveillance in significantly reducing Mr. Wendt’s recommended 238 minutes per week for bowel care to 98 minutes based on his activity level in surveillance. I am not prepared to accept the considerable degree of speculation Ms. Taillefer applies in her analysis of Mr. S.’s hygiene and personal needs.

On the other hand, Ms. Taillefer’s testimony that basic supervisory care should be limited to four hours per day (240 minutes) is compelling. The evidence from Mr. Silva and Ms. Armstrong is consistent and undisputed that Mr. S. sleeps about four hours a night relatively undisturbed. Ms. Taillefer reasons that Mr. S.’s sleep and unassisted short walks and attendance at appointments demonstrate he is safe alone when not requiring services in the allocated attendant care areas. Her opinion in this area is supported by Mr. Wendt’s concession about Mr. S.’s mobility.

Ms. Taillefer’s reasoning on this point together with the lack of any institutional episodes concerning Mr. S.’s safety and independence persuade me of the relative strength in her opinion versus Mr. Wendt on mobility and independence/safety. Although Ms. Armstrong’s evidence has modest weight, it is not persuasive on any of the contentious elements of attendant care in comparison to Mr. Wendt and Ms. Taillefer. I find that Mr. S. has not established on balance that he is entitled to 24 hour a day care, but is entitled to 1680 minutes per week (4 hours day) for general supervision while he sleeps. Based on Ms. Taillefer’s opinion, the surveillance and Mr. Wendt’s concession about mobility, I find that Mr. S. has not established on balance he requires mobility assistance at this time.

I have calculated Mr. S.’s benefit using the amounts on Mr. Wendt’s attendant care assessment form, substituting Ms. Taillefer’s recommendations in the areas of mobility assistance and supervisory care: 951 minutes/week for level one, 1820 minutes/week under level two, 940 minutes/week for level three. Using these numbers yields $765.38, $1,010.86 and $1,211.25 for the three care levels. I find that Mr. S. is entitled to $2,987.47 per month for attendant care under section 16 of the Schedule.

SPECIAL AWARD:

Subsection 282(10) of the Insurance Act empowers arbitrators to penalize an insurance company and compensate an insured where accident benefits are unreasonably denied or payment is unreasonably delayed. Economical argues that this situation is not appropriate for a special award because of it continued to pay Mr. S. a substantial benefit.

Economical’s payment must be considered with the view that until Ms. Taillefer issued her report to Economical on January 3, 2011, Mr. Wendt’s opinion was the sole occupational therapy assessment of Mr. S.’s personal needs. He recommended 24 hour a day care at the maximum $6,000 per month, and Economical did not explain how it arrived at its attendant care payments of approximately $2,000 per month. Therefore, I reasonably infer that surveillance played a driving role in Economical’s payment of Mr. S.’s attendant care from September 2009 until the hearing, based on the undisputed evidence it did not pay in accordance with its expert’s recommendations.

Mr. S. argues it was not reasonable to rely on the surveillance when Economical’s expert recommended the maximum amount. Mr. S. specifically referenced Cripps and AXA Insurance (Canada)⁵, where the arbitrator found an insurer had unreasonably relied on surveillance of the claimant’s modest work-related activities to terminate his income replacement benefits.

While Economical did not terminate payment of Mr. S.’s attendant care here, it could have requested Mr. Wendt to re-examine his findings considering the surveillance or alternatively consulted another OT expert earlier than on the doorstep of the hearing. Thus, I find that Economical unreasonably withheld payment of the ordered differential attendant care benefits, approximately $850 per month from October 2009 forward.

Mr. S. does not argue Economical’s failure to pay this benefit resulted in his financial burden, withdrawal of attendant care services or further psychological problems. There is no evidence that Economical’s conduct negatively impacted Mr. S., and I accept that the continued attendant care payments render the withholding less egregious.

Nevertheless, I am of the view that Economical’s failure to abide by its expert’s recommendation or ask for professional review during the fifteen months between October 2009 and January 2011 must bear consequence. Otherwise, insurers could simply ignore or discount their health care professionals’ opinions without deterrent.

I cannot set out the maximum special award because neither party provided calculations. Mr. S. did not suggest an appropriate percentage or set sum.

I estimate that the approximate $850 per month benefits unreasonably withheld for fifteen months equates to approximately $13,000. That is significantly increased by the addition of overdue interest under section 46 of the Schedule together with the special award interest under section 282(10) of the Insurance Act. The total is divided in half to quantify the maximum award.

In consideration of the relevant criteria under Persofsky and Liberty Mutual Insurance Company⁶, Economical’s obligations to fairly adjust the claim in relation to its continuing payments, I find it appropriate to grant Mr. S. a $6,000 special award.

EXPENSES:

I recommend that the parties make their best efforts to resolve the expenses of this arbitration on their own in consideration of the Rules 75 to 79 of the Dispute Resolution Practice Code and the Expense Regulation before contacting the Case Administrator to arrange a hearing on the assessment of expenses in this case.

July 28, 2011

Fred Sampliner Date

Arbitrator