minicounsel

Neutral Citation: 2011 ONFSCDRS 79 FSCO A09-001044

BETWEEN:

PAMELA SICKLES Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Jeffrey Rogers Heard: May 24, 25 and 26, 2011, in Ottawa. Written submissions were completed on: June 28, 2011.

Appearances: Mr. Raymond Murray, solicitor for Ms. Sickles Ms. Dawn Searle, solicitor for Economical Mutual Insurance Company

Issues:

Pamela Sickles was injured in a motor vehicle accident in Hull, Quebec, on December 12, 2002. At the time of the accident Ms. Sickles was resident in Ontario. She was insured under an Ontario automobile insurance policy issued by Economical Mutual Insurance Company (“Economical”). Because the accident occurred in Quebec, Ms. Sickles had the right to elect to receive attendant care benefits in the same amounts and subject to the same conditions as if she were a resident of Quebec.¹ She elected to receive the equivalent benefit, called “personal assistance and care expenses”, payable under section 79 of the Quebec Automobile Insurance Act.²

Economical paid personal assistance and care expenses, from May 28, 2003 until November 26, 2003. It started paying further benefits on February 1, 2010. Those payments are still being made. Ms. Sickles claims increased benefits for the periods when Economical paid. She also claims payment of benefits for the periods between the date of the accident and May 2003 and between November 26, 2003 and February 1, 2010, when nothing was paid.

The issues in this hearing are:

Pursuant to section 79 of the Quebec Automobile Insurance Act, is Ms. Sickles entitled to personal assistance and care expenses, for the period December 12, 2002 to May 27, 2003, and if so, in what amount?
Pursuant to section 79 of the Quebec Automobile Insurance Act, what is the amount of personal assistance and care expenses to which Ms. Sickles is entitled, for the period May 28, 2003 to November 26, 2003?
Pursuant to section 79 of the Quebec Automobile Insurance Act, is Ms. Sickles entitled to payment for personal assistance and care expenses for the period November 27, 2003 to January 31, 2010, and if so, in what amount?
Pursuant to section 79 of the Quebec Automobile Insurance Act, what is the amount of personal assistance and care expenses to which Ms. Sickles is entitled, for the period February 1, 2010, to present and ongoing?
Pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, is Economical liable to pay a special award?
Is Ms. Sickles entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Is either party liable to pay the other’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Ms. Sickles is not entitled to personal assistance and care expenses, for the period December 12, 2002 to May 27, 2003.
Ms. Sickles is not entitled to additional personal assistance and care expenses, for the period May 28, 2003 to November 26, 2003.
Ms. Sickles is entitled to payment of $70 per week for personal assistance and care expenses for the period November 27, 2003 to January 31, 2010.
Ms. Sickles is entitled to payment of personal assistance and care expenses in the amount of $104.09 per week for the period February 1, 2010 to December 31, 2010 and in the amount of $105.84 per week for the period January 1, 2011 to present and ongoing (less amounts paid), subject to annual amendment of the maximum amount payable and further order.
Ms. Sickles is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Economical is liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act, in an amount to be agreed or ordered after further written submissions.
The decision on the issue of expenses is reserved. If the parties are unable to agree, I will determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Background

On December 12, 2002 when the accident happened, Ms. Sickles was 59 years old. She worked as a Senior Policy Analyst for the Canadian Armed Forces. She lived in Kemptville, Ontario, in a five-bedroom house she shared with her daughter, her daughter’s partner and two grandchildren. She also owned a small home in Manawaki, Quebec. She spent weekends there and was in the process of renovating it so that she could move in full-time, when she retired.

Ms. Sickles was walking across a street in Hull when a car struck her from the right side. She was thrown onto the windshield and struck it with her head. She was taken by ambulance to Hull Hospital and transferred to Ottawa General Hospital the following day. Her injuries included multiple fractures and a mild traumatic brain injury. She spent about three months in Ottawa General Hospital and a further three months in the related Rehabilitation Centre. She was discharged from the Rehabilitation Centre on June 7, 2003.

In May 2003, Economical retained Adreanne Poirier, an occupational therapist licensed in both Quebec and Ontario, to assess Ms. Sickles’ needs upon discharge from the Rehabilitation Centre. Ms. Poirier was also instructed to assess Ms. Sickles’ entitlement to personal assistance and care expenses under the Quebec Automobile Insurance Act. Ms. Poirier completed her assessment and submitted a report on May 27, 2003.³ Based upon Ms. Poirier’s opinion, Economical started paying Ms. Sickles personal assistance and care expenses. After completing several follow-up reports, Ms. Poirier again assessed Ms. Sickles’ entitlement to personal assistance and care expenses and issued a report dated November 26, 2003. She concluded that Ms. Sickles no longer qualified for personal assistance and care expenses. Economical stopped paying the benefit but did not give Ms. Sickles formal notice.

In June 2004, Economical retained Cameron St-Germain, another occupational therapist. His instructions were to assess whether cognitive therapy for Ms. Sickles was warranted. Economical retained him because Ms. Sickles’ relationship with Ms. Poirier had broken down. On October 12, 2004, he reported Ms. Sickles’ progress to date.⁴ He informed Economical of Ms. Sickles’ ongoing cognitive challenges, despite her participation in six in-clinic cognitive therapy Occupational Therapy sessions. He recommended further sessions. He noted that his sessions became intertwined with a “request for assistance and strategies to compensate for physical and functional barriers within Ms. Sickles [sic] home environment.”

On October 4, 2004, Ms. Sickles’ lawyer at the time wrote to Sharon Levac, Economical’s adjuster, requesting approval for “a housekeeping assistant for a few hours a week, at a cost of $100 per week.”⁵ He advised that Ms. Sickles was having trouble with heavy housekeeping tasks. Ms. Levac replied that a decision would be made after further input from the occupational therapist. Ms. Poirier met with Ms. Sickles at her home in Maniwaki on October 22, 2004. Ms Poirier was sent because Mr. St-Germain was not licenced in Quebec. Ms. Poirier was not instructed to conduct a formal assessment. Ms. Sickles confirmed the information Mr. St-Germain and her lawyer had provided. Ms. Poirier sent Economical a report dated October 26, 2004. She recommended some assistive devices and investigation of the cost of paying for some of the services. Economical did not approve payment for a housekeeping assistant.

Ms. Sickles’ claim for personal assistance and care expenses was inactive for a long time after that. It was revived in May 2008 when Ms. Sickles’ new lawyer sent Economical a letter requesting reimbursement for payments for work done by Ronald Fisher.⁶ Economical denied the request. Ms. Sickles then engaged the dispute resolution process under the Schedule by applying for mediation.

In January 2010, Ms. Sickles’ lawyer retained Mr. St-Germain to assess her current entitlement to personal assistance and care expenses. He did an assessment at Ms. Sickles’ home on January 28, 2010. He concluded that she qualifies for payment of personal assistance and care expenses.⁷ He reached the same conclusion in a further report dated July 15, 2010.⁸ In this report, he concluded that her current entitlement was greater, based on additional information. At Economical’s request, Ms. Poirier also did a further assessment of Ms. Sickles’ current entitlement on January 5, 2011. She too concluded that Ms. Sickles qualifies for payment of personal assistance and care expenses, but at a lower rate than Mr. St-Germain. Economical has paid personal assistance and care expenses at the rate Ms. Poirier recommended, from February 1, 2010, and ongoing. Two days after Ms. Poirier’s most recent assessment, Mr. St-Germain did a further assessment. He now addressed Ms. Sickles’ entitlement since the date of the accident. He concluded that Ms. Sickles qualified since her discharge from the Rehabilitation Centre.

Ms. Poirier gave evidence for Economical at the hearing. Mr. St-Germain testified for Ms. Sickles.

EVIDENCE AND ANALYSIS:

The Quebec Scheme

Section 57 of the Schedule gives an insured person injured in an accident in Quebec the right to elect to receive certain benefits in the same amounts and subject to the same conditions as if resident in Quebec. As I noted above, Ms. Sickles elected to receive personal assistance and care expenses, payable under section 79 of the Quebec Automobile Insurance Act.⁹ Ms. Sickles’ right to recovery of this benefit is therefore governed by section 79 of the Quebec Automobile Insurance Act which reads as follows:

Where, by reason of the accident, a victim’s physical or mental condition warrants the continual attendance of another person or renders him unable to care for himself or perform, without assistance, the essential activities of everyday life, he is entitled to the reimbursement of expenses incurred for personal home assistance.

The Société shall determine, subject to the conditions and in accordance with the computational method prescribed by regulation, the personal home assistance needs of the victim and the amount of the reimbursement. Expenses are reimbursed on presentation of vouchers, but no reimbursement may exceed $614 per week.¹⁰

Section 79 may be broken into the following elements:

The victim has “incurred” expenses because his accident-related physical or mental condition renders him unable to care for himself or perform the essential activities of daily life.
The incurred expenses must be for “personal home assistance.”
The personal assistance needs and amount of reimbursement is determined in accordance with the method prescribed by regulation.

The regulation¹¹ requires evaluation “in accordance with the criteria set out in Schedule 1.1.” Throughout the hearing, the parties referred to this Schedule as “Annexe 1.1”, the French name. I will use that term in this decision. Annexe 1.1 lists 35 activities. The assessor assigns a score for each activity, based on whether the victim requires no assistance, partial assistance or maximal assistance. The maximum score is 174 points. The maximum weekly entitlement is determined by the following formula:

Number of points ÷ 174 × maximum amount prescribed in section 79. A total of less than 11 points does not qualify for reimbursement.

Therefore, in order to ascertain Ms. Sickles’ entitlement to the claimed benefits, I must first set her Annexe 1.1 score. If she has a qualifying score, I must then determine what expenses were “incurred.”

Comparing the Assessments by Ms. Poirier and Mr. St-Germain

Ms. Sickles’ entitlement to the claimed benefits turns largely upon the opinions expressed by Ms. Poirier and Mr. St-Germain in their various assessments.

Economical retained Ms. Poirier to assess Ms. Sickles’ entitlement to personal assistance and care expenses about six months after the accident, when she was about to be discharged from the Rehabilitation Centre. She did two assessments and several follow-up reports. The first assessment was done in May 2003.¹² Ms. Poirier was relatively inexperienced when she did this assessment. She had been an occupational therapist since November 2001 and had been licenced in Quebec in 2002. Her training in assessing entitlement under section 79 was strictly on-the-job. She was not aware of the current form upon which entitlement was based. She did not complete an Annexe 1.1. Instead, she used an old form called an “Annexe 1.” Annexe 1.1 had replaced Annexe 1 since at least 1999. Ms. Poirier used the right form when she did her next assessment in November 2003.¹³ She thought the change had occurred in the interim.

No one was aware of Ms. Poirier’s mistake until after Mr. St-Germain and Ms. Poirier had testified. Jean-Francois Lamoreaux, who testified for Economical as an expert in Quebec Law, pointed it out in his evidence. Although the two forms are similar, Annexe 1.1 is much more detailed and the scoring is different. Mr. Lamoreaux did not know how a score on Annexe 1 would translate to a score on Annexe 1.1. The result is there is no reliable assessment of Ms. Sickles’ entitlement to personal assistance and care expenses which was done upon her discharge from the Rehabilitation Centre.

Ms. Poirier’s assessment in November 2003¹⁴ resulted in a score of 8. As noted above, a score of less than 11 does not qualify for reimbursement. On her next assessment in January 2011, Ms. Poirier arrived at a score of 12.5. Mr. St-Germain gave scores of 11.5, 15.5 and 13.5, in his reports of January 2010, July 2010 and January 2011, respectively. The two assessors gave scores in only eight of the thirty-five areas of activity that are assessed under Annexe 1.1. They gave identical scores for several activities. The assessments are summarized in the chart below:

Activity	Poirier Nov. 2003	Poirier Jan. 2011	St-Germain Jan. 2010	St-Germain July 2010	St-Germain Jan. 2011
Medication use	0	2	0	2	0
Maintenance of specialized equipment	0	1	1	1	0
Complex meal preparation	0	4	4	4	4
Daily chores	3	0	3	3	3
Weekly chores	2	3	3	3	3
Clothing and linen care	1	0	0	0	1
Consumption of goods and services	2	2	0	2	2
Financial management	0	0.5	0.5	0.5	0.5
Total Scores	8	12.5	11.5	15.5	13.5

Annexe 1.1 Scores

Annexe 1.1 Score – November 2003 to January 2010

This is the period between when Economical stopped paying benefits and when it started paying again, based on Ms. Poirier’s new report. The relevant scores are Mr. St-Germain’s score of 13.5, given for assistance from November 2003 to January 2010 and Ms. Poirier’s score of 8, given in her assessment of November 2003. The 5.5 point difference is found in their assessment of assistance for complex meal preparation, weekly chores and financial management. Mr. St-Germain gave 4 for complex meal preparation, 3 for weekly chores and 0.5 for financial management. Ms. Poirier gave 2 for weekly chores and 0 for the other two areas.

Mr. St-Germain gave the score of 4 for complex meal preparation because cognitive deficits caused by the accident have reduced Ms. Sickles’ ability to concentrate and remember. Her ability to plan for complex meals is impaired and she has forgotten at times to turn off the stove. She testified that her family has forbidden her to cook. Ms. Poirier testified that she was unaware of the effect of Ms. Sickles’ cognitive deficits on her ability to prepare complex meals, when she gave the score of 0 in 2003. She had that information when she assessed Ms. Sickles in 2011 and gave the same score as Mr. St-Germain.

I find that Ms. Sickles’ cognitive deficits had diminished her ability to prepare complex meals in November 2003 and therefore Mr. St-Germain’s score of 4 for complex meal preparation is accurate. Ms. Sickles’ brain injury was immediately diagnosed and the resulting cognitive deficits were reported and recognized before November 2003. Dr. G. Trudel assessed her at the Rehabilitation Centre, on October 29, 2003. He reported as follows:

The next issue is cognitive dysfunction. Mrs. Sickles has been complaining of regular difficulty with concentration, divided attention and tolerance to cognitive task. These were objectivated [sic] in Neuropsychology. We do recommend that she be followed by neuropsychologist in order to explore strategies to improve her cognitive status.¹⁵

In fact, Ms. Sickles reported her cognitive status to Ms. Poirier when she was interviewed for the November 2003 assessment. Ms. Poirier noted the following:

Ms. Sickles indicated that she has noticed certain mild difficulties such as decreased concentration (although this is improving), difficulty with word finding, and some memory difficulties (i.e. forgets what she was talking about, forgets what she wanted to do, etc.).¹⁶

In February 2004, Ms. Sickles specifically told Ms. Poirier that she was having difficulty with meal preparation because of her cognitive issues. She told her that she had burned two pots after she forgot them on the stove.

The divergence of opinion between Ms. Poirier and Mr. St-Germain on the issue of Ms. Sickles’ ability to manage her finances is also based on the effect of Ms. Sickles’ cognitive deficits in November 2003. Ms. Poirier gave a score of 0 in 2003 but, as with meal preparation, when Ms. Poirier did her assessment in January 2011, she gave the same score of 0.5 that Mr. St-Germain gave. For the reasons given above, I accept Mr. St-Germain’s score in November 2003 as accurate.

The remaining area of divergence between Ms. Poirier’s and Mr. St-Germain’s score in 2003 is weekly chores. Ms. Poirier gave 2 and Mr. St-Germain gave 3. Again, this was the score Ms. Poirier gave in her assessment in January 2011. That score reflects a requirement for full assistance. The score of 2 is given when only partial assistance is needed.

In November 2003, Ms. Sickles was still in the early stages of recovery. Her level of physical function was much more compromised than it was in January 2011. That suggests that she would require more assistance in 2003 than in 2011. Ms. Poirier did not explain how she arrived at the opposite conclusion. I accept Mr. St-Germain’s score as accurate for 2003. Based on the above, I find that Ms. Sickles’ Annex 1.1 score in November 2003 was 13.5 points.

Annexe 1.1 assessments are usually done whenever there is a change in the victim’s circumstances. That did not happen in this case. It is therefore necessary to apply the scores from the assessments that were done to what is known about Ms. Sickles’ changing circumstances in order to arrive at a score until January 2010.

Mr. St-Germain took this approach in his assessment of January 2011. He concluded that, although the areas in which Ms. Sickles would have required assistance changed over time, her score would have remained constant over time. He suggested that two factors would influence the score. First, Ms. Sickles’ return to work would have placed increased demands on her limited energy. Second, Ms. Sickles’ difficulty with pacing herself would have caused periodic flare-ups.

I accept Mr. St-Germain’s approach but I do not accept his opinion that the score would have remained constant until 2010 for two reasons. First, Mr. St-Germain gave a score of 1 for Clothing and Linen Care in November 2003, but gave a score of 0 in his later assessments. This is because Ms. Sickles bought a front-loading washer and dryer around 2007 and reported that she was then able to manage the related tasks. Second, the demands on Ms. Sickles’ energy decreased when she retired from work in August 2008. I find it reasonable to reduce the score by 1 point after August 2008. I therefore find that Ms. Sickles’ score from September 1, 2008 to January 31, 2010 is 12.5 points.

Annexe 1.1 Score – December 12, 2002 to November 26, 2003

I earlier determined Ms. Sickles’ score on November 27, 2003 to be 13.5. Ms. Sickles’ level of function was at least as compromised on the date of the accident and ongoing, as it was on November 26, 2003. I therefore apply the score I have determined for November 27, 2003. I find that Ms. Sickles’ Annexe 1.1 score for the period December 12, 2002 to November 26, 2003 was 13.5.

Economical argued that Ms. Sickles did not qualify for benefits during part of this period because she did not engage in some of the scored activities, such as meal preparation and outside work, before the accident. Ms. Sickles denied that this information was accurate. Economical’s position appears to have been influenced by the scoring system under the out-dated form that Ms. Poirier used in her first assessment. It did not disqualify Ms. Sickles from obtaining scores for these activities under the Annexe 1.1 assessments.

Jean-Francois Lamoreaux testified that expenses that existed before the accident are not recoverable because they are not considered to be accident-related. I accept that evidence. That means that a victim cannot recover expenses for services the victim had paid for before the accident. It does not mean that the Annexe 1.1 score is affected. It did not disqualify Ms. Sickles when Ms. Poirier did her assessment in January 2011. It appears that Annexe 1.1 requires a comparison of pre-accident and post-accident function, without consideration of whether the victim actually engaged in the measured activity before the accident.

Annexe 1.1 Score – February 1, 2010 to present and ongoing

I find that Ms. Sickles’ Annexe 1.1 score from February 1, 2010, to present and ongoing is 13.5. This finding is without prejudice to Ms. Sickles’ right to be reassessed, should there be a change in her circumstances.

When Mr. St-Germain did his assessment in January 2010, he gave a score of 11.5. He revised it to 15.5 in July 2010. The only difference between Mr. St-Germain’s score in July 2010 and Mr. Poirier’s score of 12.5 in January 2011, was that Mr. St-Germain gave a score of 3 for partial assistance in Daily Chores, while Ms. Poirier gave a score of 0. Mr. St-Germain agreed that his score was a snapshot of Ms. Sickles’ function at the time and that it was influenced by the fact that she was experiencing a flare-up.

Although I accept Mr. St-Germain’s assessment on that date, the parties are seeking a ruling that establishes entitlement from February 2010 and ongoing. Flare-ups should be given some weight but it would not be reasonable to establish entitlement, based on Ms. Sickles’ lowest level of function. I have therefore added 2 points to Mr. St-Germain’s earlier assessment, rather than 5.

Summary of Annexe 1.1 scores

Period	Score
December 2, 2002 to November 26, 2003	13.5
November 27, 2003 to August 31, 2008	13.5
September 1, 2008 to January 31, 2010	12.5
February 1, 2010 to Present and ongoing	13.5

Expenses to be reimbursed

Qualifying criterion

Section 79 of the Quebec Automobile Insurance Act requires reimbursement of “incurred” expenses of qualifying victims, up to the prescribed maximum. Since section 79 is extra-provincial law, interpreting it is beyond my jurisdiction. Its meaning must be proven as a fact.

Economical called expert evidence on the interpretation of section 79. It filed the report¹⁷ of Jean-Francois Lamoreaux, an expert in the law of Quebec and the Quebec Automobile Insurance Act, with extensive experience in the application of section 79. Mr. Lamoreaux also gave oral evidence.

His evidence was that “incurred” means paid by the victim, or, if the victim is not financially capable, the victim has promised to pay. He testified that the issue of whether an expense is “incurred” within this definition is a question of fact, to be established upon credible evidence. There was no other evidence on this issue. I accept Mr. Lamoreaux’s evidence.

Mr. Lamoreaux also testified that expenses that were being incurred by the victim before the accident are not reimbursable, because they are not considered to be accident-related. I accept this evidence as well.

Mr. Lamoreaux further testified that services that are, or could have been provided by the institution, while Ms. Sickles was hospitalized are not reimbursable. He pointed to section 4.2 of the Regulation Respecting the Reimbursement of Certain Expenses¹⁸which reads as follows:

Personal home assistance expenses do not qualify for reimbursement where the personal assistance services are provided by an institution referred to in the Act Respecting Health Services and Social Services…

His evidence was that personal care services such as bathing and cleaning patients are provided under the Act Respecting Health Services and Social Services. Expenses for those services therefore do not qualify for reimbursement. In my view, since Ms. Sickles elected to receive benefits as if resident in Quebec, entitlement must be based on the availability of services under the Act Respecting Health Services and Social Services. There was no evidence to the contrary and I accept Mr. Lamoreaux’s evidence on this issue as well.

Evidence of expenses – December 12, 2002 to May 27, 2003

Based upon Mr. Lamoreaux’s evidence regarding the application of section 4.2 of the Regulation Respecting the Reimbursement of Certain Expenses, I find any expenses incurred for these services during this period are not eligible for reimbursement.

I do not accept Ms. Sickles’ submission that payment for these services while hospitalized is recoverable if the services are actually performed by others. Mr. Lamoreaux’s evidence was that there is no recovery if the service could be provided by the institution and that those services are available under the Act Respecting Health Services and Social Services. There was no evidence to support Ms. Sickles’ submission.

Ms. Sickles was in the Ottawa General Hospital and the Rehabilitation Centre during this time. She testified that she received personal care services from the staff, but there were some things they did not do. Her evidence was that Ron Fisher, her hairdresser, came in to do her hair. Her daughter Juanita and her friend Laura came in and washed her face. She paid her hairdresser and Laura. Juanita would not take money, so she compensated her in other ways.

There are further reasons for denying recovery of expenses for this period. Ms. Sickles had the same hairdresser before the accident. She testified that he came three times during this period. I find that she would likely have incurred the expense for hairdressing in any event. Further, Ms. Sickles’ evidence does not permit me to calculate how much she paid Laura or how much she compensated Juanita. Ms. Sickles gave an hourly rate for Laura, but provided no concrete information on how many hours of service were provided. She provided only general information on what she did for Juanita, in lieu of paying her. She gave no evidence as to the cost.

Evidence of expenses – May 28, 2003 to January 2010

I find that Ms. Sickles is entitled to be reimbursed for an additional incurred expense of $70 per week, paid to Mr. Fisher during this period. Ms. Sickles testified that she paid several other persons for services over this period. Paid service providers included her daughter, her sons, her grandchildren and her sister-in-law. She paid cash and did not get receipts, invoices or statements from them. She did not disclose these expenses until she testified and none of the recipients was called to testify. As with the earlier payments to persons other than Mr. Fisher, Ms. Sickles’ evidence regarding these payments does not allow me to quantify how much was paid in a way that is not speculative.

There is one exception. Mr. Fisher died in 2009. Ms. Sickles continued to require paid assistance after his death. I find it reasonable to conclude that she would have paid others at least as much as she paid Mr. Fisher. Therefore, Ms. Sickles is entitled to be reimbursed $70 per week for personal assistance and care expenses, from May 28, 2003 to January 2010. This is less than the maximum she qualified for, based on her Annexe 1.1 scores.

After her discharge from the Rehabilitation Centre, Ms. Sickles continued to receive personal care services from Mr. Fisher. Before the accident, he had provided some services in addition to doing her hair. Ms. Sickles testified that she had found out about Mr. Fisher’s other skills during a casual conversation while he was doing her hair. Before the accident, she had hired him for heavy jobs and to assist at large functions at her home. She paid him $15 per hour. In the six months before the accident, she had hired him once or twice. Her evidence was that, after the accident, she required much more assistance from Mr. Fisher.

When counsel for Ms. Sickles renewed her claim for personal assistance and care expenses in 2008, he sent a letter to Economical detailing the expenses for which she claimed reimbursement. He enclosed a letter from Mr. Fisher confirming the services he had provided.¹⁹ The letter from counsel indicated that Mr. Fisher had consistently provided six hours per week of assistance, at a rate of $100 per week, at the various places that Ms. Sickles had resided, from May 2003, to the date of the letter. It claimed reimbursement for $100 per week, less $30 per week that Ms. Sickles had paid before the accident. Her lawyer’s letter is generally consistent with Ms. Sickles’ testimony and Mr. Fisher’s letter corroborates it.

Economical submits that Ms. Sickles paid Mr. Fisher for work he would have done in any event because he or someone else was doing it before the accident. This submission is based on information Ms. Poirier recorded in May 2003 when she did her first assessment.²⁰ Ms. Poirier recorded that Ms. Sickles did not engage in heavy housekeeping activities before the accident. With regard to her home in Kemptville, she recorded that Ms. Sickles did not wash dishes, buy groceries, vacuum, clean the bathroom, put out the garbage, shovel snow or do gardening. Ms. Poirier recorded that Ms. Sickles’ daughter did these things for her. According to Ms. Poirier’s notes, Ms. Sickles also shared meal preparation and home maintenance activities at this residence with her daughter before the accident. Ms. Poirier testified that she also obtained information about Ms. Sickles’ pre-accident activities at her residence in Maniwaki. However, the complete form is no longer available. The section of the form that was produced shows that Ms. Sickles did no outdoor work in Maniwaki and she had partial assistance with home maintenance.

Ms. Sickles signed the forms on which Ms. Poirier recorded the above information. She denied that the information was accurate. Her evidence was that she could not and did not read the forms and, when she signed them, she did not appreciate the importance of ensuring the accuracy of the information they contained.

The challenges Ms. Sickles faces with reading were apparent at the hearing. Despite extensive therapy and practice since the time she signed the forms Ms. Poirier prepared, she was unable to read documents counsel put before her, without using significant coping mechanisms. Ms. Sickles is ashamed of her diminished cognitive function. Her testimony that she has tried to hide or mask her limitations is confirmed by the medical records. For example, no one knew of Ms. Sickles’ difficulty managing her finances until Mr. St-Germain visited her residence and found a stack of unopened bills and cheques that were not cashed. Ms. Sickles’ reluctance to reveal and confront her cognitive deficits explains her signing the forms, without reading them. I accept her evidence in this regard.

After the accident, she consistently reported that she was unable to engage in the very tasks that Ms. Poirier recorded she did not engage in before the accident. I find it unlikely that she would attempt these tasks after the accident, when she had hired or unpaid assistance, before the accident. I accept Ms. Sickles’ evidence that, because she lived with her daughter, she shared some housekeeping tasks before the accident but she contributed her share. I accept her evidence that, before the accident, she hired Mr. Fisher only for heavy tasks or large functions. I attribute the contrary information in the forms Ms. Poirier prepared to miscommunication. I accept Ms. Sickles’ evidence, corroborated by Mr. Fisher’s letter, that her payment to him increased after the accident from an average of $30 per week, to $100 per week.

Expenses to be reimbursed – February 2010

Since February 2010, Economical has paid Ms. Sickles the maximum personal assistance and care expenses based on Ms. Poirier’s Annexe 1.1 score of 12.5. The only issue in the hearing for this period was the amount of Ms. Sickles’ entitlement. Based on my finding that her score for this period is 13.5, I find that Ms. Sickles’ correct entitlement is $104.09 per week for 2010 and $105.84 per week for 2011.²¹

Interest

Economical argued that it did not owe interest, because it did not owe benefits. Since I have determined that Economical owes benefits, I find that Ms. Sickles is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule, as amended.

Special Award

Entitlement

Subsection 282(10) of the Insurance Act requires an arbitrator to order payment of a special award, in addition to benefits and interest to which an insured person was entitled, upon finding that an insurer has unreasonably withheld or delayed payments.

The touchstone definition of unreasonable conduct is found in the decision of Arbitrator Palmer in Plowright and Wellington Insurance Company:²²

“Unreasonable” behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

As stated by Director Draper in Singh and Commercial Union Assurance Company:²³

...whether a special award should be ordered and, if so, how much...must be considered within the total context of the case...

I find that Economical unreasonably withheld or delayed payment of benefits to Ms. Sickles from November 2003 to January 2011. In November 2003, Economical discontinued payment of personal assistance and care benefits. Although Ms. Sickles had elected to receive Quebec benefits, she retained her procedural rights under the Schedule. When it ceased paying, Economical should have given Ms. Sickles an explanation, as required by section 45 of the Schedule. It did not. It should have given Ms. Sickles notice of her right to dispute, as required by section 49 of the Schedule. It did not.

Ms. Sickles had elected to receive personal assistance and care expenses in lieu of attendant care benefits. Before terminating attendant care benefits, Economical was required by subsections 39(4) and 39(6) of the Schedule to give Ms. Sickles the opportunity to be assessed by a Designated Assessment Centre (DAC) and it was required to continue paying the benefit until it received the report from the DAC. Economical did not comply with its obligations under section 39.

I find that Economical’s conduct in ceasing to pay Ms. Sickles benefits was “imprudent” and “immoderate.” The fact that Ms. Sickles was represented by counsel did not diminish Ms. Sickles’ rights as a consumer or lessen Economical’s duty to her.

When Ms. Poirier assessed Ms. Sickles in 2003 and gave a disqualifying score under Annexe 1.1, she did not take into account the impact of Ms. Sickles’ cognitive deficits. She gave a qualifying score when she took them into account in 2011. Economical and Ms. Poirier may not have been fully aware the effects of Ms. Sickles’ cognitive deficits on her daily activities, when it ceased making payments. But they were aware that Ms. Sickles was facing significant challenges as a result of accident-related cognitive deficits. Economical was required to keep an open mind and to reassess its decision upon receiving new information.

Economical got new information through the cognitive therapy interventions necessary for Ms. Sickles’ return to work, Mr. St-Germain’s reports of difficulties she was experiencing at home and Ms. Sickles’ request for payment for a housekeeping assistant. I find that Economical’s failure to reassess Ms. Sickles’ entitlement, upon receiving this new information, was unreasonable.

Ms. Sickles’ failure to provide receipts for the assistance she was incurring does not excuse Economical’s failure to reassess. She would have been able to provide receipts, had Economical properly reassessed her need and fulfilled its obligation to inform her that receipts were required. Economical denied her that opportunity when it did not reassess.

Economical compounded its unreasonable behaviour when it maintained its position on entitlement in 2003, after Ms. Poirier gave Ms. Sickles a qualifying Annexe 1.1 score in 2011.

The inescapable conclusion from the records is that Ms. Sickles’ overall function has improved since 2003. That should have told Economical that the opinion upon which it relied in 2003 was flawed.

For the above reasons, I find that Ms. Sickles is entitled to a special award.

Quantum

The principles to be applied in fixing the amount of a special award are to be found in the Appeal decision in Liberty Mutual Insurance Company and Persofsky.²⁴ The maximum award is 50% x (benefits that were unreasonably withheld + interest on those benefits + compound interest calculated according to subsection 282 (10) of the Insurance Act).

Persofsky requires establishing the amount of the award with precision, based on the totality of the insurer’s conduct. Ms. Sickles seeks the maximum special award, but has not properly calculated the amount. I do not have that information. I find that I must have that information in order to apply the principles of Persofsky with the required precision. I find that this is not a case in which the maximum award is appropriate. As I have noted before, the maximum award should be reserved for the most egregious cases, unless the amount is so small that the maximum is required for deterrence.

Within 45 days, Ms. Sickles shall provide further submissions on the quantum of the special award, along with a calculation of the maximum. I urge the parties to attempt to settle the issue, after those submissions are provided. Economical may provide further written submissions on the issue, within 90 days. I remain seized.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 16, 2011

Jeffrey Rogers Arbitrator

Financial Services Commission of Ontario