Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 140

FSCO A11-000666

BETWEEN:

S.M.

Applicant

and

INTACT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: January 21, 22, 23, 24, 28, 29, 30 and 31, 2013 in Ottawa.

Written submissions received by April 26, 2013.

Oral submissions by teleconference call on May 10, 2013.

Appearances: Christopher Kelly for the Applicant

Deborah Neilson for the Insurer

Overview:

The Applicant¹ was seriously injured in a horrific, high-speed motor vehicle accident on June 7, 2008. She was 19 years old at the time. In addition to other injuries, she suffered a fractured skull and severe traumatic brain injury. It is currently undisputed that the Applicant has suffered a catastrophic impairment as a result of this accident and that she has also suffered a complete inability to carry on a normal life.²

Since the accident, the Applicant has required, and the Insurer has paid for, extensive treatment, rehabilitation and attendant care. The Insurer has also paid housekeeping and home maintenance benefits. What is now in dispute is the Applicant’s continuing entitlement to attendant care and housekeeping benefits and, if she proves entitlement, the amount (quantum) of those benefits that she ought to have received in the past and to which she is currently entitled.

Issues:

1. Is the Applicant entitled to receive attendant care benefits at the rate of $6,000.00 per month from June 7, 2008 onwards, less amounts paid by Intact?

2. Is the Applicant entitled to receive weekly housekeeping and home maintenance benefits in the amount of $100.00 per week from June 7, 2008 onwards, less amounts paid by Intact?

3. Is the Applicant entitled to interest for the overdue payment of benefits?

4. Is either party liable to pay the expenses of the other party in respect of this arbitration proceeding under s. 282(11) of the Insurance Act?

Result:

1. The Applicant has been paid all attendant care benefits to which she is entitled up to April 13, 2009. For the period from April 14, 2009 onwards, the Applicant is entitled to receive attendant care benefits at the rate of $6,000.00 per month (less any amounts that have already been paid by Intact for attendant care for this period).

2. The Applicant’s claim for weekly housekeeping and home maintenance benefits is dismissed.

3. The remaining issues of interest and expenses are deferred.

EVIDENCE AND ANALYSIS:

Attendant Care:

Test³

An insurer is required to pay an attendant care benefit for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by an aide or attendant. The monthly amount payable shall be determined in accordance with Form 1.⁴ Where an insured person has sustained a catastrophic impairment as a result of the accident, the maximum attendant care benefit is $6,000.00 per month.

Result

For the reasons that follow, I find that the Applicant has been paid all attendant care benefits to which she is entitled up to April 13, 2009. For the period from April 14, 2009 onwards, I find that the Applicant is entitled to receive attendant care benefits at the rate of $6,000.00 per month (less any amounts that have already been paid by Intact for attendant care for this period). The Applicant has proven on a balance of probabilities that she reasonably requires 24 hours per day of basic supervisory care because she lacks the ability to respond to an emergency or needs custodial care due to changes in her behaviour. This is equivalent to attendant care benefits of $6,000.00 per month. The Insurer has been aware of the Applicant’s need for 24-hour-per-day supervision since it received an attendant care assessment and report to this effect on April 14, 2009. The Applicant’s need for basic supervisory care has not changed since then.

Assessments of Attendant Care Needs

There have been numerous assessments of the Applicant’s need for attendant care. Each assessment has resulted in a Form 1 being completed, together with a narrative report. For ease of reference, these documents are summarized in the chart below.

Date of Form 1	Author	Exhibit No.	Monthly Amount
June 25, 2008	Christina Dorcas	Ex. 3, Tabs 25 and 31	6,510.51
October 22, 2008	Elaine Marchand Shepherd	Ex. 3, Tabs 26 and 32	5,012.03
April 7, 2009	Susan Harcourt	Ex. 3, Tabs 27 and 33	5,165.35 5
September 14, 2009	Christina Dorcas	Ex. 3, Tabs 28 and 34	304.71
December 14, 2009	Christina Dorcas	Ex. 3, Tabs 29 and 36	1,884.96
November 6, 2012	Pam Smith	Ex. 3, Tabs 30 and 38	6,427.31

Attendant Care Benefits Paid by the Insurer

The Applicant is claiming attendant care benefits in the amount of $6,000.00 per month from June 7, 2008 onwards, less amounts paid by Intact. According to the testimony of Ms. Quintal (the adjuster who has handled the file since May 22, 2009), the Insurer has paid attendant care benefits to the Applicant as follows:

Monthly Amount Paid for Attendant Care	Period
$ 6,000.00	July 4, 2008 – October 31, 2008
$ 5,012.03	November 1, 2008 – September 30, 20096
$ 304.71	October 1, 2009 – November 30, 2009
$ 1,884.96	December 1, 2009 onwards

Causation

It is not disputed that the Applicant requires attendant care, including basic supervisory care. At the hearing, however, Intact challenged whether the Applicant’s need for attendant care was the result of the June 7, 2008 accident.

Prior to the accident of June 7, 2008, the Applicant’s life had been far from perfect. She has used marijuana since she was 14 years old. She was the victim of a sexual assault at the age of 14 and was later “stalked” by her assailant. She had trouble in school and struggled with a learning disability (attention deficit disorder) and with some psychological/emotional difficulties (depression, anger, and poor impulse control, insight and judgment).

In 2007, the Applicant began receiving ODSP income support. She moved out of her parents’ home and into an apartment with her boyfriend. The apartment was located in a small community outside of Ottawa, not far from where she grew up.⁷

On October 9, 2007, the Applicant was involved in a motor vehicle accident. She was a front seat passenger in her boyfriend’s car. She was not wearing her seat belt. Their vehicle was struck head-on. As a result, the Applicant struck her head on the windshield. After that accident, she quit school and became more reclusive. She also suffered from a depressive episode that required psychiatric treatment, including anti-depressant medication.

On June 7, 2008, the Applicant was involved in the accident that is the subject matter of this proceeding.

Having considered the evidence and the law on this issue, I have no difficulty in concluding that the Applicant’s need for attendant care was the result of the June 7, 2008 accident. My reasons for this conclusion can be summarized as follows:

1. The Insurer has never before raised causation as an issue with respect to attendant care:

a. The Insurer has never explicitly reduced or denied attendant care benefits on the basis of causation.

b. The dispute over attendant care benefits was identified by the parties at mediation as one of quantum, not entitlement.

c. Causation was never specifically identified as an issue in the Report of the Mediator (October 4, 2010), in the Insurer’s Response (April 11, 2011) or in the pre-hearing letter of Arbitrator Alves (April 18, 2012).

2. As of the conclusion of the hearing, the Insurer continued to pay attendant care benefits.

3. As of the conclusion of the hearing, the Insurer continued to pay non-earner benefits based upon opinions of both the Applicant’s experts and Intact’s expert to the effect that, as a result of the June 7, 2008 accident, the Applicant has suffered a complete inability to carry on a normal life.

4. The Insurer has paid and continues to pay extensive medical and rehabilitation benefits for impairments that the Applicant sustained as a result of the June 7, 2008 accident.

5. All of the experts (including those retained by the Insurer) agree that the Applicant has required attendant care since the June 7, 2008 accident.

6. There is no evidence that she suffered a brain injury in the October 9, 2007 accident.

7. Although the Applicant had psychological/emotional difficulties as well as a learning disability before the accident of June 7, 2008, all witnesses who saw her both before and after this accident note a marked negative change in her behaviour and in her ability to function. Before June 7, 2008, the Applicant was independent in most of her activities of daily living and she did not require supervision or other attendant care. It is undisputed that, after June 7, 2008, she required (and continues to require) significant attendant care, including basic supervisory care because she lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.

8. The only expert to give an opinion on causation, Dr. Marshall, stated that the Applicant’s pre-accident psychological problems only made her that much more vulnerable to the effects of the severe traumatic brain injury she sustained on June 7, 2008. In his opinion, the June 7, 2008 accident was the direct cause of the Applicant’s need for attendant care.

9. Finally, having heard the testimony of the Applicant, her boyfriend, her father, Dr. Marshall and numerous other treating and assessing medical practitioners and having considered their reports and the other material filed, I find that, but for the accident of June 7, 2008, the Applicant would not require attendant care. I therefore find, on a balance of probabilities, that the Applicant has proven that her need for attendant care is the result of the June 7, 2008 accident.

Were Attendant Care Expenses “Incurred”?

An insurer is required to pay an attendant care benefit for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by an aide or attendant. At the hearing, the Insurer raised the issue of whether the Applicant has incurred any expenses related to attendant care since she has not actually paid or promised to pay her service providers (her father and boyfriend).

In this case, attendant care has been provided to the Applicant by her boyfriend (with whom she cohabits) and, to a lesser extent, by her father. The money that has been paid by Intact for attendant care has been placed by the Applicant’s father (who has power of attorney for the Applicant) into a joint account he shares with the Applicant. A relatively small amount of this money has been paid directly to the Applicant’s boyfriend. Mostly, this money has been used to pay for things that benefit the boyfriend (such as purchasing him a vehicle he needed) or that jointly benefit the Applicant and her boyfriend (such as paying for the rent on their apartment, for their utility bills, for their grocery bills and for other similar, shared expenses). To the extent that there is money left in that account, the Applicant’s father and boyfriend have effectively gifted that money back to the Applicant. They could have gone through the charade of taking payment each month for their services and then turned around and given some or all of it back to the Applicant for her use. Alternatively, the Applicant could have paid her boyfriend for attendant care services and then he could have paid for their rent, utilities, groceries and so forth. When it comes to financial matters, these are not particularly sophisticated people. They are a close family and they only wanted to do what was best for the Applicant. They did not see a need for artificial machinations in order to create the appearance of money changing hands.

They have provided invoices for attendant care to Intact. These were not very detailed and only two of the invoices claimed an actual dollar amount.⁸

With respect to housekeeping, Intact made it clear that it required more detailed information. With respect to attendant care, however, Intact never notified the Applicant that the OCF-6 forms submitted on behalf of the Applicant were deficient. Intact has been aware since the time of the accident of the details of the attendant care services being provided to the Applicant by her boyfriend and father. Intact is also aware that, in general, the Applicant has not been left on her own for more than a couple of hours per day and that, even when not physically present, one or both of the Applicant’s father and boyfriend were available by telephone to speak with the Applicant and, if needed, to promptly attend upon her in person. At no time has Intact reduced or discontinued attendant care payments as a result of lack of evidence that these expenses were “incurred.”

Ms. Quintal (the adjuster on the file since May 2009) confirmed that, prior to this hearing, Intact had not questioned whether the attendant care expenses being claimed had been incurred nor has it asked for more information in this regard.

At the time of this accident, the law was well settled that “incurred” was to be given a very broad interpretation such that it could include situations where there was no actual payment or even promise of payment − an Applicant would be deemed to have “incurred” an attendant care expense if it could be proven that the Applicant reasonably required the services in question (and that the expenses claimed were calculated in accordance with a Form 1).⁹

This broad definition was intended to prevent what the Ontario Court of Appeal has termed the absurd and unfair result that only those persons who can pay for services in advance will be allowed to recover for those services.¹⁰ This interpretation was also likely adopted in order to prevent insurers from denying needed benefits to persons who are not able to find service providers who are willing to work for nothing more than a promise of future payment. Finally, such a broad interpretation is required to prevent insurers from avoiding paying for needed services (thereby reaping a “windfall”) simply because an applicant is fortunate enough to have someone (typically, a friend or relative) who is prepared to provide services whether or not there is any likelihood of compensation.

I am satisfied that, for all intents and purposes, the Applicant has been provided with round-the-clock attendant care since the time of the accident. For reasons that shall follow, I find that this level of attendant care is reasonable and necessary in this case. Under the accepted interpretation of the SABS-1996, I am therefore satisfied that these expenses have been incurred.

Analysis of Attendant Care Needs: June 7, 2008 - February 28, 2009

With respect to the time period of June 7, 2008 through February 28, 2009, Intact raises the following three defences:

1. Intact paid attendant care benefits at the rate of $6,000.00 per month from July 4, 2008 through October 31, 2008 (in accordance with the Form 1 of Ms. Dorcas dated June 25, 2008), so there is no dispute over this period;

2. Any dispute over the payments that were made prior to March 2009 ought to have been challenged within two years. The Application for Arbitration in this case was filed March 1, 2011. This was more than 90 days after the issuance of the report of mediator. By operation of section 51 of the SABS-1996, the Applicant is barred from challenging any payments made prior to March 1, 2009.

3. Even if the Applicant is not statute-barred from challenging the payments made between November 19, 2008 and February 28, 2009, Intact paid attendant care benefits in accordance with the Form 1 from Ms. Marchand Shepherd dated October 22, 2008 (at the rate of $5,012.03 per month). The only days that the Insurer did not pay for were the days upon which the Applicant was an in-patient at the Behavioural Rehabilitation Service of the Acquired Brain Injury Centre (the Ottawa Hospital), which facility provided its own 24-hour attendant care.

I agree with the Insurer with respect to all three defences.

For the period from June 7, 2008 through October 31, 2008, there are no attendant care benefits in dispute. Intact is not required to pay attendant care benefits for the period prior to its receipt of the Form 1. The Applicant was also hospitalized for much of the first month after the accident and there is no evidence that she required attendant care beyond that which was provided by the hospitals. After Intact received the first Form 1 (for $6,000.00 per month), it paid attendant care benefits at that rate (until it received a new Form 1 at the end of October 2008). Therefore, I find that there are no attendant care benefits owing up to October 31, 2008.

For the period from November 1, 2008 through February 28, 2009, I also agree with the Insurer’s argument that, pursuant to section 51 of the SABS-1996, based upon the date of the filing of the Application for Arbitration (March 1, 2011), the Applicant is barred from challenging the attendant care benefits that were paid prior to March 1, 2009.

Even if I were wrong in my conclusion that the Applicant is out of time to challenge the attendant care that was paid prior to March 1, 2009, I would nevertheless find that there are no attendant care benefits owing for the period between November 1, 2008 and February 28, 2009. During this period, Intact paid in accordance with the last Form 1 it received (in the monthly amount $5,012.03). Intact only withheld payment for the days that the Applicant was an in-patient at Behavioural Rehabilitation Service of the Acquired Brain Injury Centre, which facility provided its own 24-hour attendant care. She remained an in-patient at the facility from December 1, 2008 through March 5, 2009. Eventually, she was allowed to spend weekends at her parents’ home and Intact paid attendant care benefits for those days that the Applicant was staying with her parents.

Although I heard some testimony that the Applicant’s immediate family and boyfriend visited her frequently at this facility and that this provided some comfort to the Applicant, there is no evidence that the round-the-clock attendant care services provided by the facility were inadequate to meet the Applicant’s needs. There was also adduced insufficient details as to the “services” provided by the Applicant’s family/boyfriend (dates, hours, etc.). I therefore find that there are no attendant care benefits owing to the Applicant up to February 28, 2009.

Analysis of Attendant Care Needs: March 1, 2009 - April 13, 2009

When Ms. Elaine Marchand Shepherd did her assessment of the Applicant in October 2008, she was hopeful that the Applicant could be left alone for up to six hours per day, if the Applicant were closely monitored (i.e., by way of a ten-minute telephone call to the Applicant every hour). As it turns out, Ms. Marchand Shepherd had been too optimistic. The Applicant’s behaviour quickly deteriorated. She was very anxious. She started drinking and smoking marijuana more frequently, against the advice of her treating medical practitioners. There was evidence of some suicidal ideation. She was clearly in distress and demonstrated little insight and awareness as to the effects of her traumatic brain injury. By December 1, 2008, the Applicant had to be institutionalized.¹¹

When the Applicant was discharged, in or about March 2009, Susan Harcourt, the Applicant’s treating occupational therapist, was asked by the Applicant’s case manager to do an in-home assessment (which would include an attendant care assessment). Ms. Harcourt spoke with the insurance adjuster who was handling the file at that time (Andrew MacLean). He asked if she was planning on doing an attendant care assessment because, if she was not, he would arrange for one to be done. She advised him that she would be doing such an assessment.

Ms. Harcourt then conducted the attendant care assessment on March 19, 2009 and sent a Form 1 to the Insurer on or about April 7, 2009.¹² The Insurer received this Form 1 and Ms. Harcourt’s narrative report on April 14, 2009. She recommended 24 hours per day of attendant care (about 1.5 hours per day for specific types of attendant care and 22.5 hours per day for basic supervisory care).¹³

Prior to receiving the new Form 1 from Ms. Harcourt on April 14, 2009, the Insurer cannot be faulted for paying attendant care in accordance with the last Form 1 it had received, that of Ms. Marchand Shepherd, in the monthly amount of $5,012.03. I therefore find that there are no additional attendant care benefits owing to the Applicant up to April 13, 2009 (the day before the Insurer received the Form 1 and narrative report of Ms. Harcourt, recommending 24 hours per day of attendant care).

Analysis of Attendant Care Needs: April 14, 2009 to Date (and ongoing)

The real heart of this dispute is over the amount of basic supervisory care reasonably required by the Applicant. Ultimately, all experts who have assessed the Applicant’s need for attendant care (including the one retained by the Insurer) agree that the Applicant requires basic supervisory care. The only real disagreement amongst these assessors is the number of hours per day that such supervision is required by the Applicant.

In summary, following the Applicant’s discharge from the Behavioural Rehabilitation Service of the Acquired Brain Injury Centre (in or about March 2009), three occupational therapists have assessed her need for attendant care: Susan Harcourt, Christina Dorcas and Pam Smith. Ms. Harcourt and Ms. Smith have both concluded that the Applicant requires round-the-clock supervision due to her inability to respond to emergency situations. Ms. Dorcas has concluded that the Applicant requires six hours per day of supervision due to her emotional instability (i.e., she requires six hours per day of custodial care due to changes in behaviour). Unlike Ms. Harcourt and Ms. Smith, however, Ms. Dorcas has concluded that round-the-clock supervision is not required because, in her opinion, the Applicant possesses sufficient physical and cognitive ability to respond appropriately in an emergency. On cross-examination, however, Ms. Dorcas agreed that treating healthcare professionals get a more complete view of a person’s true level of function than an assessor who only sees a person for a few hours.

As of April 14, 2009, the Insurer was aware that Ms. Harcourt was recommending 24-hour-per-day attendant care for the Applicant.¹⁴ The Insurer never acted upon the Form 1 it received from Ms. Harcourt, however, other than later arranging for Ms. Dorcas to re-assess the Applicant’s need for attendant care in September 2009. Ms. Dorcas recommended only $304.71 per month in total attendant care benefits. Ms. Dorcas found no need for any basic supervisory care.

At the request of Applicant’s counsel, Susan Harcourt reviewed the attendant care assessment of Ms. Dorcas and commented thereon in a report dated November 3, 2009 (Ex. 3, Tab 35). She was critical of Ms. Dorcas’ opinion for the following reasons:

1. Ms. Dorcas’ time and experience with the Applicant was very limited;

2. Her methodology was suspect;

3. She relied upon the Applicant to accurately report her functional abilities (when the Applicant’s cognitive and emotional impairments, including lack of insight, made her an unreliable source of information and Ms. Dorcas failed to verify the information with the Applicant’s rehabilitation therapists and other care providers);

4. Ms. Dorcas accepted (uncritically) that, based upon the Applicant’s oral responses to questions about hypothetical emergency situations, the Applicant would actually and reliably respond appropriately in a real emergency situation;

5. Ms. Dorcas did not adequately take into account how the Applicant’s emotional and cognitive impairments contributed to her functional variability (i.e., how her labile emotional state made it difficult to predict her level of function at any given moment).

Ms. Dorcas then reviewed this critique of her attendant care assessment and spoke with Ms. Harcourt directly concerning this matter.

Upon reflection, Ms. Dorcas concluded that, over and above the other attendant care she had previously recommended, six hours of basic supervision (custodial care) would be reasonable as a result of changes in the Applicant’s behaviour. Such supervision was deemed by Ms. Dorcas to be reasonable and necessary in order to assist the Applicant at various times during the day when she might feel heightened stress, anxiety and depression and that, if she were left unsupervised, might lead to behavioural outbursts that could put at risk the physical or emotional well-being of the Applicant or others (i.e., there was a risk that the Applicant, during an emotional outburst, could harm herself or others). Her opinion that the Applicant could respond appropriately in an emergency, however, remained unchanged. Ms. Dorcas remained convinced that the Applicant “presents with the physical and cognitive abilities to both recognize and respond appropriately in an emergency situation.”¹⁵ Ms. Dorcas prepared a new Form 1 (Ex. 3, Tab. 29), increasing the monthly attendant care benefit from $304.71 to $1,884.96 in order to reflect a need for six hours per day of basic supervisory care.

The strongest arguments that can be advanced in support of Ms. Dorcas’ conclusion that the Applicant can respond appropriately in an emergency seem to be the following:

1. the Applicant was able to answer Ms. Harcourt’s questions about how the Applicant would respond to hypothetical emergencies;

2. since the accident, the Applicant has demonstrated some periods of improved function and independence, sometimes being left alone in the apartment for up to a few hours each day; and

3. there are no specific examples of emergency situations that have arisen since the accident where the Applicant was at risk of serious harm because of a lack of ability to respond.

Having observed the Applicant and heard testimony from her father, her boyfriend and numerous health professionals who have been treating the Applicant since the accident, I find that the Applicant cannot reliably and appropriately respond in an emergency. Her purported ability to answer questions about hypothetical situations does not alter this conclusion nor does the fact that, to date, the Applicant has been fortunate that no real emergency has arisen during the relatively rare times when she has been left alone.

Ms. Dorcas reports that, during the assessment in September 2009, she asked the Applicant questions such as:

• What would you do if you cut your finger?

• What would you do if you were choking?

• What would you do if you forgot you had taken your medication, took a second dose,

and then recalled you had previously taken your prescribed medication?

• What would you do if there was a fire in the apartment?

• What would you do if you left your home and came back to find the door wide open? What would you think happened, and what would you do?

The Applicant’s exact responses were not recorded. Apparently, the answer to each question was the same; the Applicant indicated that she would telephone her father. When asked for a secondary strategy, she indicated that she might call 911.

This interview took place in a familiar setting (the Applicant’s apartment), with her father present throughout. Presumably, the Applicant was much calmer during this interview than she would be when faced with sudden and unexpected danger. The evidence before me, as a whole, suggests that there is likely to be a significant difference between what the Applicant reports that she will do and how she will actually respond in an emergency. There is no suggestion by Ms. Dorcas that the Applicant was able to come up with any other strategies that did not involve telephoning her father or dialing 911 nor is there any indication of what the Applicant would do if her telephone was not accessible or was not working. Ms. Dorcas also expresses no opinion as to whether the Applicant would likely be able to follow directions she might receive from her father or the 911 operator. There also appears to have been no consideration by Ms. Dorcas of whether making a telephone call is always a reasonable strategy (for example, whether it is appropriate to take the time to make telephone calls from inside a burning building).

With respect to the second argument, it is true that there were periods of time during which the Applicant demonstrated progress. For example, with tremendous effort, planning, support and practice, there was even a period (around September 2010) when the Applicant was able to leave the apartment on her own, take a taxi to a gym (Curves), workout and then return home. She did make some significant gains in her level of independence. Yet those gains were relatively short-lived and she has since regressed. The Applicant also has made little, if any, progress in the area of spontaneous problem-solving. I will go into more detail about the Applicant’s cognitive difficulties shortly.

With respect to the third argument, I agree that there are no good examples of emergency situations that have arisen since the accident. Thus, there are no clear examples of past failure of the Applicant to respond appropriately to an emergency. The examples of actual incidents that have been advanced are not terribly helpful.

On one occasion, the Applicant fell in the apartment building and injured herself but she had a neighbour with her at the time. Therefore, the Applicant’s failure to call for emergency services or to use her Lifeline does not suggest one way or the other how she may have responded if she had been on her own.

There was also an occasion where the Applicant was very ill, bleeding and vomiting and wracked by excruciating abdominal pains that lasted for days. It has been suggested by her counsel that this demonstrates an inability to react appropriately to an emergency. Yet, the Applicant’s boyfriend was aware of the situation and he did not call emergency services or insist that the Applicant go to the hospital. The reason for the Applicant’s delay in seeking medical attention is that the Applicant had attended several hospitals for similar symptoms in the past and they had been unable to provide any diagnosis or relief. Given this history, her delay for a few days in seeking medical attention is understandable and not necessarily an indication of poor judgment that resulted from her brain injury.

Another example of risk is that, on a few occasions since the 2008 accident, the Applicant has forgotten to turn off burners on the stove. Perhaps due to loss of her sense of smell, she did not promptly detect the danger. This resulted in burnt pots and created a risk of fire. The Applicant has since ceased using the stove. Thus, this no longer appears to be a concern.

The lack of concrete examples of situations where the Applicant created or failed to respond appropriately to emergencies is relevant but it is not determinative of this issue. The Applicant may simply have been lucky thus far. In this case, what I find to be important is the overall agreement amongst all people who know the Applicant well that, as a result of her brain injury, she is basically incapable of making even simple decisions, and that her cognitive and emotional difficulties are multiplied exponentially when she is under stress (as she would be in an emergency).

Dr. Shawn Marshall is an expert in the assessment, treatment and rehabilitation of persons who have sustained traumatic brain injuries and he has treated over 2,000 traumatic brain injury patients over his career. Dr. Marshall oversaw the Applicant’s treatment (both as an in-patient and as an outpatient) at the Ottawa Hospital Rehabilitation Centre. In February 2011, Dr. Marshall produced a report in which he provides his opinion with respect to the Applicant’s injuries and impairments and, amongst other things, her ability to live independently (Ex. 3, Tab 64). Dr. Marshall also testified during these proceedings.

Dr. Marshall has concluded that, as a result of the Applicant’s cognitive and emotional impairments that have resulted from the 2008 accident, and especially as a result of her inability to problem-solve and make decisions, the Applicant cannot live independently. According to Dr. Marshall, the Applicant should ideally have someone with her, or immediately available on the premises, at all times.¹⁶ This is consistent with the opinions of the occupational therapists who have worked with the Applicant (Ms. Harcourt and Ms. Smith) and who have assessed her need for attendant care.

Once it has been established that, due to cognitive or behavioural impairments (caused by an accident), an applicant can no longer appropriately respond to an emergency or otherwise needs custodial care due to changes in behaviour, it seems reasonable to me to start with the assumption that round-the-clock care will be required unless there is evidence to the contrary. By definition, one cannot predict when an emergency will arise. Fortunately, emergencies tend to occur relatively rarely but, if they could be predicted with precision, they would not be emergencies at all.

By way of analogy, it is inappropriate to leave a young child unsupervised, even for short periods. More often than not, an emergency will not arise if a child were left unattended. Yet, due to a child’s cognitive and emotional inability to respond appropriately should an emergency arise and due to the possibility that poor judgment might lead the child to endanger herself, it would be irresponsible to leave a child alone, even for relatively short periods of time. When it comes to children, we do not engage in a cost-benefit analysis and weigh the risks of leaving a child unsupervised against the cost or inconvenience of providing proper, continuous supervision. Why then should it be different for an adult who, as a result of a severe brain injury sustained in a motor vehicle accident, cannot respond appropriately to an emergency or otherwise requires custodial care because of changes in their behaviour?

Having heard from the Applicant, those who see her on a daily or regular basis and from various assessors, I am satisfied that the Applicant cannot appropriately respond to an emergency. The Applicant’s past behaviour suggests (and the testimony of the Applicant and her boyfriend confirms) that when faced with an unexpected situation (like a stranger knocking on her apartment door), the Applicant is likely to decompensate, go to her bed and hide under the covers, like a small child. She has demonstrated real reluctance to leave her apartment when alone (even when she thought her beloved pet had gotten loose). I am not satisfied that she will actually use the Lifeline (panic button) that has been provided by the Insurer. In the face of danger, the Applicant might call her father or boyfriend or 911 on the telephone (assuming that a telephone is accessible and working) but making such a call could result in delay that may not be either appropriate or safe. She is incapable of making snap decisions on her own. In a real emergency, the Applicant’s inability to analyze a situation, formulate and evaluate alternative strategies and then initiate and follow through with an appropriate course of action could prove fatal.

Furthermore, the phrase “lacks ability to respond to an emergency or needs custodial care due to change in behaviour”¹⁷ suggests that basic supervisory care is about more than just the ability to respond to emergencies. The evidence presented convinces me that the Applicant finds it tremendously difficult to make even the smallest of decisions (for fear of making a bad decision). She knows that, at her age, she ought to be able to make simple decisions. When faced with a problem that she cannot solve, unless there is someone available to assist her, she will grow increasingly frustrated by her inability to solve the problem. She will direct her anger inwards and then spiral down into a deep depression that can last for days. She becomes even more withdrawn, even from loved ones. Her change in mood can also manifest in physical symptoms, such as nausea and loss of weight. There may even be suicidal ideation. Thus, due to changes in behaviour, in the absence of custodial care, even small daily challenges can result in major decompensation with resultant depression, anger and deterioration in the Applicant’s quality of life. Ms. Dorcas concludes that six hours of assistance spread out over a 24-hour period ought to be sufficient to assist the Applicant in avoiding such decompensation, but Ms. Dorcas does not really explain how she arrived at this number.¹⁸ She also concludes (again, without much explanation), that the Applicant will not have any stress or anxiety at night because she assumes that the Applicant is sleeping through the night. In fact, the Applicant (and others) have testified that the Applicant has difficulty sleeping at night and that she frequently stays up late at night (or early into the morning), pacing or watching television.¹⁹

Given the unpredictability of the Applicant’s mood and behaviour, I find the amount of attendant care recommended by Ms. Dorcas to be both arbitrary and insufficient. I also find that Ms. Dorcas does not accurately assess and address the Applicant’s inability to respond to an emergency. For the reasons already given, I find that the Applicant reasonably requires 24 hours per day of attendant care.

Conclusion – Attendant Care

The Insurer received the Form 1 from Ms. Harcourt on April 14, 2009. At that point, the Insurer was aware that the Applicant required 24 hours per day of attendant care. This is equivalent to attendant care benefits of more than $6,000.00 per month, but the maximum amount that can be awarded is $6,000.00 per month.

I shall therefore order that Intact pay to the Applicant attendant care benefits at the rate of $6,000.00 per month from April 14, 2009 onwards (less any amounts that have already been paid by Intact for attendant care for this period). There are no attendant care benefits owing to the Applicant for the period from June 7, 2008 to April 13, 2009.

Housekeeping and Home Maintenance:

Test

Intact must pay for reasonable and necessary additional expenses incurred by or on behalf of the Applicant (up to a maximum of $100.00 per week) for housekeeping and home maintenance services if, as a result of the accident, the Applicant sustained an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

Result

The Applicant’s claim for weekly housekeeping and home maintenance benefits is dismissed because she failed to establish her usual pre-accident housekeeping and home maintenance activities and because she failed, without reasonable excuse, to provide information requested (and reasonably required) by the Insurer about the housekeeping and home maintenance services that were allegedly being provided to her.

The first indication that the Applicant may qualify for housekeeping and home maintenance benefits was the Disability Certificate of Dr. Marshall dated October 6, 2008. The Disability Certificate of Dr. W.E. Gordon dated September 14, 2009 also states that the Applicant meets the disability test in order to qualify for these benefits.²⁰

The Insurer, however, takes the position that no invoice was submitted for housekeeping and home maintenance services. The Applicant points out that numerous invoices (OCF-6 forms) sent to the Insurer make reference to housework and laundry. The Insurer replies as follows: (1) most of the services described in those OCF-6 forms relate to attendant care, not housekeeping; (2) in only two of the invoices are any specific dollar amounts claimed;²¹ and (3) these documents all lack particulars (e.g., who was providing these services to the Applicant; the dates, times and details of the services provided; the number of hours; and the hourly rates charged). Also, there was no medical opinion as to the amount of housekeeping assistance the Applicant reasonably required.

In September 2009, Intact had an occupational therapist (Christina Dorcas) conduct an in-home assessment to determine the Applicant’s needs for both attendant care and housekeeping assistance. Based upon the information provided to Ms. Dorcas by the Applicant and based upon the observations of Ms. Dorcas, she concluded that the Applicant reasonably required 5.5 hours per week of assistance with housekeeping and home maintenance tasks.²²

The adjuster on the file, Monique Quintal, wrote to the Applicant (care of her parents, as per the request of the Applicant) on September 25, 2009 to advise that Intact was prepared to pay housekeeping benefits in accordance with the report of Ms. Dorcas, but only upon provision of detailed receipts confirming the date the assistance was provided, the amount of time and the amount paid as well as the name of the individual providing the assistance. At this point, it was not clear to Intact what amount was being claimed by the Applicant in relation to this benefit. A Form OCF-9 to this effect was enclosed with Ms. Quintal’s letter of September 25, 2009. No such detailed invoices were ever provided to Intact after September 25, 2009.

On November 24, 2009, the Applicant’s counsel (Mr. Kelly) wrote to the adjuster, stating that the Applicant was not capable of preparing any invoices and that he (Mr. Kelly) was not permitted to communicate with the Applicant’s boyfriend given the fact that the Applicant had a pending tort action against him. Mr. Kelly advised that, according to the Applicant’s father, the boyfriend provided 80% of the housekeeping assistance and the rest was done by the Applicant’s parents. Thus, according to Mr. Kelly, the weekly 5.5 hours approved by the Insurer was roughly attributable to 4.4 hours of assistance from the boyfriend and 1.1 hours from the Applicant’s parents. Mr. Kelly also made it clear that the Applicant was taking the position that she was actually entitled to a housekeeping benefit of $100.00 per week for the periods since the accident that she was not hospitalized.²³

On January 7, 2010, the Applicant filed an Application for Mediation, which included the dispute over housekeeping and home maintenance benefits. The mediation was concluded by October 4, 2010 and a report of the mediator was issued on that date indicating that the Applicant’s claim for $100.00 per week in housekeeping benefits from the date of the accident onwards had not been resolved through mediation.

On or about November 10, 2010 (i.e., shortly after receipt of the Report of Mediator), Intact paid the Applicant $7,103.25 for housekeeping and home maintenance benefits. Mr. Kelly wrote to the adjuster on November 25, 2010, asking for an OCF-9 explaining how the amount of $7,103.25 was calculated and for what period of time. Ms. Quintal wrote back on December 1, 2010, explaining how the payment was calculated ($57.75 per week from June 7, 2008 through October 18, 2010). She refused to issue a new form OCF-9. She repeated the position of the Insurer that this must be an “incurred” expense and that future payments would only be made if and when the Insurer received detailed receipts/OCF-6 forms for services rendered. No such invoices were subsequently provided to Intact. Counsel for the Applicant disagrees with the position taken by Intact and, on February 23, 2011, he commenced this Application for Arbitration on behalf of the Applicant.

Jurisdiction

Intact argued that I lack jurisdiction to adjudicate the merits of this claim because of the operation of paragraph 50(a) of the SABS-1996. In particular, Intact takes the position that the Applicant never actually made a claim for housekeeping benefits.

I find that I do have the jurisdiction to hear the Applicant’s claim for housekeeping benefits. When the history of this matter is considered as a whole, I find that there was a claim for housekeeping benefits.

By late 2009, the Insurer possessed several expert medical opinions that the Applicant was sufficiently disabled to qualify for housekeeping and home maintenance benefits, including an opinion from its own assessor, Ms. Dorcas. Intact therefore was aware that this was a live issue. It also received two invoices (albeit, not detailed ones) between November 2008 and January 2009 indicating that housekeeping services were being provided to the Applicant.

On November 24, 2009, the Applicant’s counsel wrote to Intact, making a demand for housekeeping benefits in specific amounts for specific periods of time. When the Insurer failed to pay any amount for housekeeping benefits, an Application for Mediation was filed in January 2009. Mediation failed and a report was issued by the mediator on October 4, 2010. There is nothing in the report of mediator to suggest that Intact was then raising any jurisdictional challenges. Intact made an ex gratia housekeeping payment about a month later (November 2010). This payment was not for the full amount being claimed by the Applicant so she then commenced an Application for Arbitration in February 2011.

It is true that the detailed invoices demanded by Intact were not produced by the Applicant. I am not convinced, however, that this goes to the question of my jurisdiction under section 50 of the SABS-1996. There are other defences available to Intact if the Applicant failed to provide information that Intact reasonably required.

Delay in Making Claim

Intact takes the position that, contrary to clause 32(1.1)(b) of the SABS-1996, no claim for housekeeping and home maintenance benefits was advanced within 7 days after the circumstances arose that gave rise to the entitlement to the benefit (or as soon as practicable after that day) and no reasonable explanation has been provided for the delay.

I find that the invoices submitted November 27, 2008 and January 2, 2009, together with the disability certificate of October 6, 2008, were enough to put the Insurer on notice that a claim was being advanced for housekeeping benefits. Even if I were wrong in this conclusion, the fact that the Applicant was suffering major difficulties and was in and out of hospitals for much of late 2008 and early 2009 would provide a reasonable explanation for the delay in advancing a more formal claim for housekeeping and home maintenance benefits until the fall of 2009.

Failure to Provide Information

Intact submits that, under sections 32 and 33 of the SABS-1996, the Applicant is not entitled to this benefit because she failed to provide information reasonably required to assist Intact in determining her entitlement to this benefit (i.e., detailed invoices) and she has not provided a reasonable explanation for her failure to comply.

In McQueen v. Echelon,²⁴ the Ontario Court of Appeal has held that the insured person’s failure to provide receipts did not disentitle her to housekeeping benefits because, to hold otherwise, would lead to the absurd and unfair result that only those persons who could pay for services in advance would be allowed to recover for those services. The Court of Appeal, however, was clearly prohibiting insurers from requiring applicants to provide proof of actual payment. Payment is not what is in dispute here.

In the present case, Intact was looking for particulars of who was providing services, the nature of those services, dates, times and so forth. If the Applicant took the position that she was not able to arrange for someone else to assist her with housekeeping but that she required assistance, it would have been absurd for Intact to demand particulars of services that were not being provided. In this case, however, the Applicant advised Intact that housekeeping services were being provided (primarily by her boyfriend) and Intact wanted particulars of those services. In such circumstances, I do not find it absurd or unfair for Intact to have made this request.

In the circumstances of this case, I find the Insurer’s request for detailed invoices to be reasonable. Intact was receiving information that the Applicant was capable of doing much of her housework (albeit, with some cueing and supervision) and that her situation was constantly changing (sometimes improving, other times regressing). Therefore, it was reasonable for Intact to ask for particulars such as: who was providing housekeeping and home maintenance services from week to week; what services exactly were being provided; and the dates and times of these services. The fact that Intact accepted the Applicant’s claims for attendant care and non-earner benefits does not, in my view, preclude it from seeking particulars about the housekeeping services for which she is claiming compensation.

While the Applicant may have had some difficulty preparing the requested documentation, there is no explanation as to why she (or someone other than her counsel) could not ask her boyfriend to keep track of the services he provided. During his testimony, the boyfriend could not explain why he did not do so. Thus, no reasonable explanation has been provided for the Applicant’s failure to comply with the Insurer’s repeated demands for such information. This is sufficient to defeat the Applicant’s claim for housekeeping and home maintenance benefits.

Evidence as to the Applicant’s Pre-accident Housekeeping Services

In her examination-in-chief, the Applicant did not testify about her pre-accident housekeeping activities. In cross-examination, she testified that she could not recall what housekeeping she did before the 2008 accident, but suggested that her boyfriend or father might know.

The Applicant’s boyfriend testified during his cross-examination that after the 2007 accident, he had to take over the housekeeping in their apartment because, when it came to housework, the Applicant was not doing much. When he was asked why he stopped sending in invoices for housekeeping services after October 2009, he responded that he was not sure.

The Applicant’s father failed to testify as to the Applicant’s normal housekeeping activities immediately prior to the June 7, 2008 accident. The Applicant and her father completed a chart for Ms. Dorcas (attached to her report of September 14, 2009) concerning the Applicant’s functional abilities prior to that accident. If this chart was meant to record what the Applicant and her father were reporting to be the Applicant’s actual pre-accident housekeeping tasks, then there is an irreconcilable difference between what they apparently told Ms. Dorcas in September 2009 and the testimony that I heard.

The best evidence on this issue before me was the testimony of the Applicant’s boyfriend (with whom the Applicant was cohabiting at the time of the accident) who indicated that the Applicant was doing very little, if any, housekeeping after October 9, 2007.

Proof of usual pre-accident housekeeping services is absolutely crucial to a claim of this type. The onus was upon the Applicant to establish her normal pre-accident housekeeping activities. She has failed to meet this onus and, on this basis as well, this part of her claim must fail.

Conclusion − Housekeeping and Home Maintenance Benefits

For the period up to October 18, 2010, the Insurer has paid housekeeping and home maintenance benefits for 5.5 hours per week. There is no expert or other convincing evidence that the Applicant reasonably required more housekeeping and home maintenance benefits than what has already been paid by the Insurer for the period from June 7, 2008 to October 18, 2010. On the whole, the evidence concerning the Applicant’s ability to perform housekeeping activities after the accident of June 7, 2008 suggests that the Applicant can do many housekeeping tasks (including washing dishes, vacuuming, dusting, making the bed, doing laundry, sweeping floors and cleaning the bathroom), with some cueing and supervision (which has been provided by her boyfriend and rehabilitation workers).

Subsequent to October 18, 2010, the Insurer indicated its willingness to continue paying these benefits at a rate consistent with the only assessment that specifically addresses this issue, but only if the Applicant provides the Insurer with periodic invoices that contain sufficient detail to permit the Insurer to properly assess the claim. To date, the Applicant has failed, without a reasonable explanation, to provide the Insurer with the information it has requested. Instead, she chose to litigate the issue before me.

At this hearing, the Applicant failed to prove on a balance of probabilities the housekeeping and home maintenance services (if any) that she normally performed before the accident. In fact, the evidence of her boyfriend is that she did little, if any, housekeeping between October 2007 and June 2008. The Applicant’s claim cannot succeed in the absence of convincing evidence of the nature of the housekeeping and home maintenance services (if any) that she normally performed before the accident.²⁵

Due to the Applicant’s failure to meet her onus of proof concerning her pre-accident housekeeping activities and her failure to provide information reasonably requested by the Insurer, the Applicant’s claim for housekeeping and home maintenance benefits is dismissed.

Interest and Expenses:

Determination of the Applicant’s claim for interest on the overdue payment of benefits and the claim of both parties for their expenses of this proceeding is deferred.

If either party wishes to have either or both of these issues adjudicated, written notice must be provided to the other party and to the Financial Services Commission of Ontario within 30 days of the date of this decision. Given the amount of time and energy that has already been devoted to this matter, however, I am hopeful that the parties will be able to work together to resolve any outstanding issues without the need for further adjudication.

November 8, 2013

Richard Feldman Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 140

FSCO A11-000666

BETWEEN:

S.M.

Applicant

and

INTACT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is determined that:

1. The Applicant has been paid all attendant care benefits to which she is entitled up to April 13, 2009. For the period from April 14, 2009 onwards, the Applicant is entitled to receive attendant care benefits at the rate of $6,000.00 per month (less any amounts that have already been paid by Intact for attendant care for this period).

2. The Applicant’s claim for weekly housekeeping and home maintenance benefits is dismissed.

3. Determination of the Applicant’s claim for interest on the overdue payment of benefits and the claim of both parties for their expenses of this proceeding is deferred. If either party wishes to have either or both of these issues adjudicated, written notice must be provided to the other party and to the Financial Services Commission of Ontario within 30 days of the date of this decision.

November 8, 2013

Richard Feldman Arbitrator

Date

$ 1,228.58 for the period of June 24, 2008 - September 17, 2008; $ 957.16 for the period of September 25, 2008 - November 30, 2008; $ 3,000.00 for the period of March 5, 2009 - September 30, 2009; $ 420.00 for the period October 1, 2009 - November 25, 2009 (based on 5.5 hours per week); $ 57.75 per week from November 26, 2009 onwards (in the absence of “receipts”).

Footnotes

1. 1The Applicant has requested that her name and other identifying information be withheld from this decision. This request was not opposed by the Insurer. To the extent that it is possible, I have indicated that I shall comply with this request.
2. 2The Insurer has paid and, as of the conclusion of this hearing, continued to pay non-earner benefits to the Applicant. Such a benefit is payable if, and only if, as a result of the accident, the insured person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
3. 3based on an accident in June 2008, with no optional coverage.
4. 4Assessment of Attendant Care Needs (Form 1).
5. 5This total is the result of mathematical error and use of an out-dated form. Based upon the recommendation of 24-hour-per-day attendant care, the total ought to have exceeded $6,000.00 per month (which fact is acknowledged by Ms. Quintal, the adjuster who had carriage of this file from May 22, 2009 onwards and who testified at this hearing).
6. 6Except that no attendant care was paid for the days during this period that the Applicant was an in-patient at the Behavioural Rehabilitation Service of the Acquired Brain Injury Centre (the Ottawa Hospital).
7. 7After the 2008 accident, the Applicant and her boyfriend moved to an apartment in her home town so that she could be closer to her parents (i.e., a few blocks away).
8. 8These invoices are discussed in greater detail later in this decision, in the section concerning the Applicant’s claim for housekeeping and home maintenance benefits.
9. 9See, for example, the Divisional Court’s decision in Belair v. McMichael, 2007 CanLII 17630 (ON SCDC). The term “incurred” has been given a more restrictive definition since new regulations came into effect on September 1, 2010, but Intact has not argued that this new definition applies in this case.
10. 10McQueen v. Echelon General Insurance Company, 2011 ONCA 649 at para. 32.
11. 11with the Applicant’s consent, as an in-patient at the Behavioural Rehabilitation Service of the Acquired Brain Injury Centre.
12. 12See Exhibit 3, Tab 27. At the hearing, the Insurer suggested that, because this Form 1 was prepared using an out-dated form, it was not a valid Form 1 at all and could be ignored by the Insurer. I reject this argument. There is no support in law for this proposition and I see no reason that the Applicant should be prejudiced because of what is effectively a clerical error on the part of a third party. Furthermore, Ms. Quintal admitted in cross-examination that the Insurer’s failure to respond to the Form 1 of Ms. Harcourt and her narrative report (Ex. 3, Tab 33) was due to errors on the part of the Insurer (including “misplacing” these documents for several months) rather than the result of any legal position being taken by the Insurer.
13. 13This did not mean that Ms. Harcourt was of the opinion that 22.5 hours per day of supervision was adequate. Rather, since 1.5 hours per day had been attributed to more specific types of assistance, the remaining time (22.5 hours per day) was attributed to supervision (so as not to exceed a total of 24 hours per day).
14. 14The Applicant and her counsel, however, did not receive a copy of this Form 1 and the accompanying narrative report until January 2010.
15. 15See Exhibit 3, Tab 36, p. 4 of 6.
16. 16He did indicate that the Applicant might be able to be left on her own for up to four hours per day as long as there was someone available who could attend upon her almost immediately, if required.
17. 17Emphasis added. This phrase is used in Part 2 of every Form 1, under the heading “Basic Supervisory Care”.
18. 18Ms. Dorcas purportedly relied upon information from Ms. Harcourt. In her testimony before me, however, Ms. Harcourt denied ever telling Ms. Dorcas (or anyone else) that the Applicant only required 6 hours of supervision. Ms. Harcourt has consistently maintained that the Applicant requires round-the-clock supervision. This was confirmed by Ms. Harcourt in her letter of September 29, 2010 (Ex. 3, Tab 37).
19. 19This erratic sleep pattern has apparently resulted in chronic fatigue, which further exacerbates the Applicant’s cognitive and emotional difficulties.
20. 20as does the Disability Certificate of Dr. M. Morrison, dated March 13, 2012.
21. 21OCF-6 forms (Applications for Expenses) dated November 27, 2008 and January 2, 2009 each claim a total of $6,000.00 for all services (which appears to include both housekeeping and attendant care services). There is no breakdown showing how this total is calculated. There were subsequent OCF-6 forms submitted to Intact (for February, May, June, July, August, September and October 2009), but none of these forms indicated how much money was being claimed.
22. 22At $10.50 per hour, this would mean a maximum weekly housekeeping and home maintenance benefit of $57.75.
23. 23The letter from Mr. Kelly specifies that the amounts claimed by the Applicant for housekeeping and home maintenance are as follows:
24. 24McQueen v. Echelon General Insurance Company, 2011 ONCA 649 at para. 32.
25. 25i.e., I cannot determine if, as a result of the accident, the Applicant sustained an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident if I cannot ascertain the housekeeping and home maintenance services (if any) that she normally performed before the accident.