Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2014 ONFSCDRS 119
Appeal P13-00001
OFFICE OF THE DIRECTOR OF ARBITRATIONS
ECONOMICAL MUTUAL INSURANCE COMPANY
Appellant/Cross-Respondent
and
Ms. M.G.
Respondent/Cross-Appellant
BEFORE:
David Evans
REPRESENTATIVES:
Nicholaus de Koning for Economical Mutual Insurance Company
Doug Wright for Ms. M.G.
HEARING DATE:
February 7, 2014
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Paragraph 2 of the Arbitrator’s order dated November 23, 2012, is rescinded and replaced with the following:
Ms. M.G. is entitled to attendant care in the amount of $1,615.32 from June 3, 2007 and ongoing.
Otherwise, the appeal and cross-appeal herein are rejected and the Arbitrator’s order is affirmed.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested pursuant to the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014), but as set out below and within sixty days of the date of this decision.
July 21, 2014
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
In the arbitration hearing under appeal, Arbitrator Sapin determined that, pursuant to the SABS‑1996,1 Ms. M.G. sustained a catastrophic impairment as a result of a motor vehicle accident on November 2, 2005. This finding entitled Ms. M.G. to continued attendant care benefits (ACBs) beyond 104 weeks after the accident. The Arbitrator granted Ms. M.G. a special award on the basis that Economical unreasonably withheld income replacement benefits (IRBs). Finally, she awarded arbitration expenses because Ms. M.G. had been “entirely successful” in the arbitration proceeding. The amounts of the special award and of the expenses have still to be determined.
The Arbitrator found Ms. M.G. is entitled to monthly ACBs of $1,462.70 ongoing from May 31, 2008. Both parties appeal that amount,2 for different reasons, with Ms. M.G. submitting she is entitled to a greater amount starting earlier. Economical also appeals the special award and the granting of expenses to Ms. M.G, but not the finding of catastrophic impairment.
II. BACKGROUND
On November 2, 2005, Ms. M.G., a registered nurse, was crossing a street within a crosswalk on a green light when she was struck by a school bus and knocked to the ground, striking her head.
Economical initially paid ACBs but in May 2008, after the two-year mark, terminated them on the basis that Ms. M.G. had not suffered a catastrophic impairment. As set out in ss. 18(2) and (3) of the SABS, “No attendant care benefit is payable for expenses incurred more than 104 weeks after the accident” except “in respect of an insured person who sustains a catastrophic impairment as a result of the accident.”
The Arbitrator accepted that as a result of the accident the Applicant sustained the following injuries and impairments: a concussion or mild closed head injury, poor memory, inability to concentrate, focus or pay attention to tasks, inability to multi-task, word-finding difficulties, constant headaches, depression, anxiety, elements of post-traumatic stress disorder, chronic pain, interrupted sleep, frustration, impatience, irritability, lack of motivation, dizziness, loss of balance, loss of peripheral vision, lost sense of smell and incontinence.
The Arbitrator found that Ms. M.G.’s life changed dramatically after the accident, and that after two failed attempts at a return to work, her condition deteriorated until she was “barely functioning at all.” The Arbitrator found that Ms. M.G. satisfied the requirements for catastrophic impairment on the basis of both ss. 2(1.2)(f) and (g) of the SABS. With respect to (g) – a “marked” or “extreme” impairment due to a mental or behavioural disorder – the Arbitrator found that Ms. M.G. had marked impairments in three of the four spheres (activities of daily living, social and adaptation to work) and moderate impairments in the remaining sphere (concentration, persistence and pace).
Ms. M.G. relied on various Form 1s – Assessment of Attendant Care Needs3 – that were prepared by Ms. Lisa Duffus, occupational therapist. The first Form 1 was dated June 13, 2007 for $1,020.01 per month. The second Form 1 was dated March 17, 2009 for $2,471.30 per month. Ms. Duffus recommended that amount be retroactive to the date of the first Form 1. The third and last Form 1, dated January 7, 2011, was for $5,723.07 per month that Ms. Duffus recommended be retroactive to April 2010. From now on, I will just refer to the first, second or third/last Form 1, respectively.
The Arbitrator found that s. 39(3) of the SABS prevents retroactive assessments, so the issue “is limited to determining whether the recommended attendant care is reasonable and necessary going forward from the date of each Form 1.” [Emphasis in the original] Nonetheless, the Arbitrator awarded $1,462.70 per month from May 31, 2008 and ongoing, when the first Form 1 – the only one in existence as of that date – was for $1,020.01.
The Arbitrator explained the contents of Form 1 as follows:
The Form 1 outlines three “levels” of care, differentiated by and paid according to the kind of skill required to perform the type of care. The time devoted to each care activity is allotted in minutes. The Levels are: Level 1, Routine Personal Care; Level 2, Basic Supervisory Care; and Level 3, for complex health/care and hygiene functions.
The main issue in Ms. M.G.’s cross-appeal is Level 2 basic supervisory care. Ms. Duffus recommended 25 minutes per day of Level 2 basic supervisory care in the first Form 1, 9 hours per day in the second, and 24 hours a day in the third. These hours were claimed beside the Form 1 heading for the situation where the “applicant lacks ability to respond to an emergency or needs custodial care due to changes in behaviour.” Ms. Duffus’ recommendations were based on her conclusion that Ms. M.G. could not respond appropriately in an emergency, needed the extra hours for her emotional well-being, and, regarding the last Form 1, ran the risk of suicide.
However, regarding the second Form 1, the Arbitrator found that “Ms. Duffus was overly emotionally involved in Ms. M.G.’s case to the extent that she compromised her impartiality and ability to objectively assess Ms. M.G.’s needs from an occupational therapy viewpoint.” She preferred the evidence of Ms. Alison Wills of Custom Rehab, who reported that Ms. M.G. was able to describe appropriate plans for an emergency. The Arbitrator also noted that Ms. Duffus overlooked basic and obvious attendant care needs in her Form 1s. She did find that the one hour for supervision during the daytime was appropriate.
The Arbitrator had similar concerns regarding the third Form 1. She found that Ms. M.G.’s emotional state did not constitute the type of emergency that would require 24-hour care contemplated under the category of “Basic Supervisory Care” on the Form 1, nor that she ran the risk of suicide. Accordingly, she found that 24-hour care was not required to ensure safety.
In her conclusion regarding the ACBs, the Arbitrator stated that she had “determined the amounts of attendant care that I find to be reasonable and necessary according to the specific Form 1 categories and have set out the amounts in a chart at Appendix ‘C’ to this decision.” Appendix “C” indicates that the ACB should be $1,462.70 from May 2008 and ongoing. There are arithmetical errors in that calculation. Further, Ms. M.G. submits that the Arbitrator erred in providing no reasons for her conclusions regarding the amount.
As for the special award, Economical appeals the award for its suspension of the IRBs. Economical suspended them on November 1, 2009, on the basis that, under s. 55 of the SABS, Ms. M.G. had not engaged in treatment that would have either allowed her to return to work or shortened the period the IRBs were payable. The recommended treatment arose from an insurer’s examination. The Arbitrator found that Ms. M.G. complied with s. 55 by seeking similar treatment on a timely basis. However, the Arbitrator went on to say that “Although Ms. M.G. complied with her obligations, and despite requests from her counsel, Economical did not reinstate Ms. M.G.’s IRBs until just before the start of this hearing.” The parties concur that the stoppage was not as stated by the Arbitrator.
In the following analysis, I will deal first with Ms. M.G.’s cross-appeal, as Economical’s appeal only makes sense in the larger context of Ms. M.G.’s claims.
III. ANALYSIS
I will first deal with the Arbitrator’s calculation of the ACB set out in her Appendix “C” as well as whether she provided reasons for those amounts. I will then consider whether, as Ms. M.G. submits, a greater amount should have been awarded for basic supervisory care. Finally, I will consider whether or not a higher ACB could be claimed retroactively.
Appendix “C” and the reasons behind it
Appendix “C” to the Arbitrator’s decision is the key to the quantum aspect of the decision, for, as Ms. M.G. submits, “The Arbitrator gave no reasons for the quantum of the attendant care, other than as can be gleaned from her calculations in Schedule C.” Ms. M.G. submits that the most basic error is that the Arbitrator provided no reasons for the figures in Appendix “C.” Indeed, at the end of her discussion on the amount of ACBs, the Arbitrator simply stated:
Considering all of the evidence presented to me, including that of Ms. M.G. herself, her family members, her treating physicians, psychologists, and other therapists; and the expert opinions on both sides, and having reviewed the various Form 1’s and functional assessments in evidence, I have determined the amounts of attendant care that I find to be reasonable and necessary according to the specific Form 1 categories and have set out the amounts in a chart at Appendix “C” to this decision.
As noted in Lawson v. Lawson, 2006 CanLII 26573 (ON CA), “where an order is made without adequate reasons, unless the reasons are implicit or patent on the record, an appellate court has no access to the underlying reasons for the order and cannot afford it deference.”4 However, a close review of the decision shows that at various points in it the Arbitrator made findings that, explicitly or implicitly, mostly support the conclusions reached in her Appendix “C.” This includes in particular her finding that Ms. M.G. is only entitled to one hour of basic supervisory care a day, which is at the heart of Ms. M.G.’s appeal. Because the Arbitrator did not otherwise explain how she derived the amounts in Appendix “C,” we must start with the Appendix, correct it as agreed or as based on the evidence,5 and determine if its figures are supported by reasons.
The parties agree that the Arbitrator made a number of errors in her Appendix “C.”
First, in footnote 46, she suggested that “As the hourly rate for each level of attendant care on the Form 1 increases over the years,” the parties may wish to re-calculate the amounts. There is no indexing provision under the 1996 SABS for the ACB hourly rates.
Second, she used the rates for Level 1 and Level 3 care from the wrong Form 1. Subsection 39(19) of the 1996 SABS provides that “An assessment of attendant care needs under this section in respect of accidents occurring before March 1, 2006 shall be in Form 1, as it read on February 28, 2006 and available on the website for the Financial Services Commission of Ontario.” This version provided $10.53 per hour for Level 1 care and $16.86 for Level 3.
Third, there are mathematical errors in the Appendix. It indicates that 60 minutes of Level 1 assistance was to be allowed 5 times per week for extra laundering, but only 30 minutes per week instead of 300 were actually allotted.
Fourth, the Appendix does not clearly set out how the figures were derived. For instance, the Level 3 portion does not even indicate the hourly rate.
Accordingly, I will take each Level in turn, setting out the original version, the corrected one, and any findings in the Arbitrator’s decision supporting those figures.
Below is the original portion of Appendix “C” dealing with the Level 1 benefits. I have bolded the errors.
of Minutes
Times/wk.
Minutes/wk.
Hourly Rate
Weekly Amt.
Level 1
Assistance with dressing/ undressing a.m. and p.m.
30
7
210
$11.23
$137.94
Grooming
5
7
35
Feeding
60
7
420
Supervision using stairs at night
3
14
42
Extra laundering
60
5
30
The parties did not dispute that the correct hourly rate should be $10.53 and that the extra laundering in the last line should count for 300 minutes and not 30 minutes per week.
In recalculating the ACB, I will follow the procedure set out in Form 1: for each level, determine the total number of minutes per week, then perform a final calculation using those minutes to obtain the monthly benefit.
Accordingly, for Level 1, the total number of minutes per week is 1,007:
Level 1
Number of Minutes
Times per week =
Total minutes per week
Assistance with dressing/ undressing a.m. and p.m.
30
7
210
grooming
5
7
35
feeding
60
7
420
stairs
3
14
42
laundry
60
5
300
Total minutes per week
1,007
As for a rationale for these figures, I find that, with respect to most of these items, the Arbitrator had touched on them when rejecting the evidence of Ms. Duffus. The Arbitrator noted that Ms. Duffus “overlooked basic and obvious attendant care needs in her Form 1’s, needs that even Economical’s assessors recommended (dressing, bathing, grooming, extra laundering).” She also noted on p. 28 of her decision that Economical had acknowledged Ms. M.G. needs help with certain physical activities such as meal preparation, grooming and hygiene. Finally, on p. 34, she found that while Economical’s assessors, such as Ms. Sherry Krushed and Ms. Alison Wills, did include some of these care needs, it was not to an extent that reflected Ms. M.G.’s actual needs. The stairs assistance and the hour a day of assistance with feeding were set out in Ms. Duffus’ second Form 1, so the Arbitrator appears to have accepted that. Accordingly, I find that the figures are supported by the Arbitrator’s findings elsewhere in the decision. In any event, there was little controversy about this portion of Appendix “C,” as Ms. M.G.’s appeal focuses mostly on the denial of 9 or 24 hours a day of basic supervisory care under Level 2.
This is the original portion of Appendix “C” dealing with Level 2 care:
of Minutes
Times/wk.
Minutes/wk.
Hourly Rate
Weekly Amt.
Level 2
Hygiene
10
7
70
7.00
65.87
Clothing Care
30
2
60
7.00
Basic Supervisory Care
60
7
420
7.00
Coordination of A/C
60
1
60
There was no dispute about the hourly rate, but the hour for coordination of attendant care on the last line is missing from the weekly amount. The total number of minutes per week is 610:
Level 2
Number of Minutes
Times per week =
Total minutes per week
Hygiene
10
7
Clothing care
30
2
Basic supervisory care
60
7
Coordination of A/C
60
1
Total minutes per week
610
As already noted, the heart of Ms. M.G.’s appeal is the allotment of only one hour a day for basic supervisory care. However, the Arbitrator made a specific finding regarding that care in her discussion of the second Form 1. She noted that despite her overall concerns with that Form 1, she found “the one hour during the day recommended by Ms. Duffus, when I understand someone would be available periodically at the other end of a cellphone to monitor Ms. M.G. while she was at home or in the community, could be reasonable on the grounds of safety and/or cuing.” While she went on to reject the 24-hour-a-day care in Ms. Duffus’ third Form 1 dated January 7, 2011, she had already found this 1 hour useful and carried it forward into the Appendix. Therefore, the one hour was based on a specific finding made by the Arbitrator. I will return to the issue of whether more time should have been allotted below.
To finish with Appendix “C,” here is the portion dealing with Level 3 care:
of Minutes
Times/wk.
Minutes/wk.
Hourly Rate
Weekly Amt.
Level 3
Exercise
60
7
420
$1,462.70
Medication
5
7
35
TOTAL MONTHLY AMOUNT
$1,462.70
Instead of the weekly amount for the Level 3 care we see the total monthly amount, repeated on the last line. The total minutes at Level 3 is 455.
Level 3
Number of Minutes
Times per week =
Total minutes per week
Exercise
60
7
420
Medication
5
7
35
Total minutes per week
455
While I can find no reference to daily exercise in the decision, this was not under appeal. Assistance with medication was referred to in Ms. Duffus’ last report.
This leads to the final process of determining the monthly amount.
According to p. 7 of the correct Form 1, for each level you divide the total minutes per week by 60 to get the total weekly hours. You then multiply the total weekly hours by 4.3 to get the total monthly hours. That last figure multiplied by the appropriate hourly rate gives you the monthly care benefit for each level, and then you total those to get the final ACB. The following is based on that formula, using the corrected hourly rates (all calculations are rounded out to two decimal points):
Total Minutes per Week
Total Weekly Hours ÷60=hours/week
Total Monthly Hours X 4.3=hours/week
Hourly Rate X hourly rate
= Monthly Care Benefit
Level 1
1,007
16.78
72.15
$ 10.53
759.74
Level 2
610
10.17
43.73
7.00
306.11
Level 3
455
7.58
32.59
16.86
549.47
Total assessed monthly Attendant Care Benefit
1,615.32
The Arbitrator had only awarded $1,462.70 per month, when according to her findings (and adjusted for the correct hourly rate) it should have been $1,615.32. At the very least, the Arbitrator’s order must be amended to reflect the corrected amount.
I now turn to whether more time should have been allotted for the Level 2 basic supervisory care.
Level 2 Basic Supervisory Care
In large part, the Arbitrator’s conclusions are based on her findings of fact. The Arbitrator started by discussing information on the Form 1 itself, such as its statement on page 1 that Form 1 users should review other benefits available under the SABS for possible reimbursement of other losses and expenses including transportation and other med/rehab expenses. The Arbitrator found this statement is “designed to ensure the Form 1 is used in the context of the statutory accident benefits scheme as a whole, and that benefits are coordinated, maximized, and not duplicated.”
The Arbitrator then reviewed the care categories on Form 1, finding “it is designed for the most part to address care needs arising from physical, cognitive or behavioural impairments that require the physical presence of an attendant.” She noted that the daily 9 hours of care Ms. Duffus recommended in 2009 and the 24-hour care in 2011 were for Level 2 “Basic Supervisory Care” under the heading “applicant lacks ability to respond to an emergency or needs custodial care due to changes in behaviour.” The Arbitrator stated:
Based on the Form itself, I find that inability to respond to an emergency and the need for custodial care are the only two categories of the Form 1 where supervisory attendant care up to 24-hours a day can even be contemplated for someone in Ms. M.G.’s circumstances.
[Emphasis in the original.]
The Arbitrator noted that this was “the most contentious area of disagreement between the parties.” Ms. M.G. maintained that her physical, cognitive and mood impairments rendered her unable to respond to an emergency or to be safe at home or in the community, requiring the extensive care. However, the Arbitrator agreed with Economical that, while Ms. M.G. needed help with certain physical activities, her cognitive, emotional or behavioural impairments did not prevent her from responding to an emergency or require the presence of an attendant 24 hours per day.
The Arbitrator first reviewed the second Form 1 from Ms. Duffus, who recommended nine hours daily for basic supervisory care because Ms. M.G. “lack[ed] the ability . . . to be self-sufficient in an emergency.” In her addendum, Ms. Duffus indicated that included 8 hours at night “to continue assuring her in-home safety [in case of fire or flood] . . . and emotional well-being.”
Regarding the 8 hours of overnight care, the Arbitrator found that Ms. M.G. was self-sufficient in an emergency. This is where she relied on the OT assessment prepared by Ms. Alison Wills of Custom Rehab, who reported that Ms. M.G. was able to describe appropriate plans when posed emergency situational questions. She preferred that evidence over that of Ms. Duffus on these grounds:
I find it was apparent from her testimony and the tenor of her reports, that Ms. Duffus was overly emotionally involved in Ms. M.G.’s case to the extent that she compromised her impartiality and ability to objectively assess Ms. M.G.’s needs from an occupational therapy viewpoint. She burst into tears at one point when describing how Ms. M.G.’s psychological condition had deteriorated. She overlooked basic and obvious attendant care needs in her Form 1’s, needs that even Economical’s assessors recommended (dressing, bathing, grooming, extra laundering), attributing her errors to “clinical oversight” and inexperience. She openly challenged the recommendations of Ms. M.G.’s treating psychiatrist, Dr. Cruz, and treating psychologist, Dr. B. Mangos, that Ms. M.G. should be encouraged to overcome her fears and anxieties and become more independent by taking the bus by herself to an appointment, something a surveillance video showed Ms. M.G. was able to do on at least one occasion.6 I find Ms. Duffus’ concerns for Ms. M.G.’s financial worries, for which both women blamed Economical, also affected her impartiality.7
The Arbitrator found the same concerns applied to the third and final Form 1 from 2011. She noted that the concerns Ms. Duffus had about Ms. M.G.’s emotional state and suicidal thoughts played a predominant role in her recommendation for 24-hour care. However, the Arbitrator found that several measures were in place to ensure physical safety. With respect to Ms. M.G.’s depression, anxiety and suicidal thoughts, she found Ms. M.G.’s emotional state did not constitute the type of emergency that would require the 24-hour care contemplated under the category of Basic Supervisory Care on the Form 1. The Arbitrator noted that the March 18, 2011 report of Mr. Billy Mangos, Ms. M.G.’s treating psychologist, stated that Ms. M.G. was not suicidal and had no history of suicidal plans or intent, and the Arbitrator wrote that Mr. Mangos testified “he did not at any time feel Ms. M.G.’s situation was so serious that he would consider sending her to the emergency department or committal to a hospital, an opinion shared by Dr. Laura Cruz, Ms. M.G.’s treating psychiatrist.”
As for Ms. Sherry Krushed, Economical’s occupational therapist, who also conducted an in-home assessment and prepared a Form 1 on March 2, 2011, the Arbitrator noted that Ms. Krushed deferred any comments she had about Ms. M.G.’s emotional state to a psychologist, which the Arbitrator approved. Finally, regarding Dr. D. Kurzman, a clinical psychologist with an interest in neuropsychology who reviewed Ms. Duffus’ second Form 1 and endorsed her recommendations for overnight supervisory care, the Arbitrator found that he simply accepted Ms. Duffus’ recommendations at face value.
The Arbitrator thus set out in considerable detail the evidentiary basis on why she did not find either the 8-hour overnight care or the 24-hour care reasonable and necessary.
Economical submits that “In general, factual determinations by Arbitrators are not subject to review on appeal. In terms of the amounts of attendant care that Arbitrator Sapin found appropriate, these were factual determinations that should not be disturbed. Her decisions should not be second guessed as she was the trier of fact and was able to hear the 11 days of evidence on a face-to-face-person basis and assess the credibility of witnesses.” Economical refers to the principles set out in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003) where an error of fact can become an error of law, and submits:
None of the above principles apply in this case. Arbitrator Sapin found that Ms. [M.G.] was quite impaired and required some attendant care. Significantly, however, she found that Ms. [M.G.] did not require “24/7” attendant care. Any concerns about Ms. [M.G.’s] emotional state, difficulty concentrating or responding to emergencies or suicidal thoughts were not significant enough to warrant 24-hour a day care to ensure her safety. Arbitrator Sapin specifically found that it simply was not unsafe for Ms. [M.G.] to be home alone at various times in this regard. These are factual findings that should not be overturned.
By way of contrast, Ms. M.G. submits:
For the period of the second Form 1 (March 2009) the Arbitrator preferred the evidence of Ms. Wills over that of Ms. Duffus. Ms. Wills performed an in-home IE in respect of a treatment plan. She did not prepare a Form 1, nor was she assessing the Applicant’s attendant care needs. She did not give evidence at the arbitration hearing and was not cross-examined. The sole reference in her report that was relied on by the Arbitrator was the line: “Ms. [M.G.] was able to describe appropriate plans when posed emergency situational questions (i.e. fire, flood, someone breaking in).”
Ms. M.G. then sets out other evidence that suggested Ms. M.G. might need 24-hour supervision. However, it is not my role to weigh the evidence, and in any event, the Arbitrator set out in considerable detail why she did not accept the finding by Ms. Duffus that Ms. M.G. needed such extensive supervision.
The further submissions that Ms. M.G. makes about the Arbitrator’s findings and comments have to be seen in that light.
Ms. M.G. submits:
[T]he Arbitrator seemingly interpreted the Form 1 to say that attendant care is not warranted if the person could get an attendant under s.15 of the SABs. In this case, the Applicant never made application for an attendant under s. 15, nor did the insurer offer it… Even if the same benefit is available under two different sections there is no “duplication”, unless the insurer is attempting to have the same thing paid for under two different sections, which was not the case here.
I agree with Ms. M.G. that the Arbitrator’s reasoning on this point is weak. I am reminded of G. B. v. Pilot Insurance Company, 2008 CanLII 2602, where the Divisional Court was reviewing a Delegate’s decision that, since “nanny expenses” could be claimed under s. 13 of the 1996 SABS, they could not be claimed under s. 15. Of this view the Court stated: “There is no logic in this assumption.” However, the Arbitrator noted that Ms. M.G.’s treating psychiatrist, Dr. Cruz, and treating psychologist, Mr. B. Mangos, both felt that “Ms. M.G. should be encouraged to overcome her fears and anxieties and become more independent by taking the bus by herself to an appointment, something a surveillance video showed Ms. M.G. was able to do on at least one occasion.” [Footnote omitted.] More importantly, the Arbitrator was not persuaded by the evidence of Ms. Duffus in any event, so despite the merits of Ms. M.G.’s submission, it is not relevant in light of the Arbitrator’s findings.
The same applies to a couple of other submissions by Ms. M.G. For instance, Ms. M.G. refers to the decision by Arbitrator Feldman in S.M. and Intact Insurance Company, (FSCO A11-000666, November 8, 2013). ACBs were also at issue in that case. All parties agreed some basic supervision was needed but disagreed on the amount. The insurer relied on a paper review that concluded the insured could react appropriately in an emergency. The Arbitrator spent a couple of pages deconstructing and ultimately rejecting that assessment. However, this all goes to the weighing of evidence by an arbitrator. The Arbitrator in S.M. found the amount of attendant care recommended by the insurer’s assessor to be both arbitrary and insufficient. In this case, Arbitrator Sapin found the assessment by Ms. Duffus to be overly partial and not objective. This shows that the treatment of a paper review simply depends on the facts of the case.
Similarly, Ms. M.G. submits that Arbitrator Sapin erred in narrowly defining the meaning of “custodial care” when she stated that “While assuring a person’s emotional well-being and providing emotional support are helpful for rehabilitative purposes, I do not agree that they are appropriate uses of the type of attendant care services intended under the Basic Supervisory Care category in Form 1.” Ms. M.G. refers to Arbitrator Bayefsky’s T.N. decision, discussed below, where he stated that “the Form 1 reference to custodial care could well include the type of access to support and monitoring sought by the Applicant” and rejected the narrow meaning proposed by the insurer in that case. Of course, Arbitrator Sapin did award a certain amount of monitoring in the one hour a day she did grant, on the basis that having someone “available periodically at the other end of a cellphone to monitor Ms. M.G. while she was at home or in the community, could be reasonable on the grounds of safety and/or cuing.” But beyond that, Arbitrator Bayefsky in T.N. had already found the Applicant significantly impaired in day-to-day functioning and faced “significant danger in the event of an emergency, whether awake or asleep at the time.” His comments regarding what may be considered “custodial care” have to be considered in that context. Accordingly, I am not persuaded that the Arbitrator erred in this context.
I find that Ms. M.G. is only entitled to the increased ACBs due to the Appendix “C” corrections. I will now turn to Ms. M.G.’s entitlement to retroactive benefits.
Retroactivity of an ACB claim: Form 1
Ms. M.G. submits that the Arbitrator erred in her interpretation of s. 39(3) of the SABS, which provides: “An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with subsection (1) is submitted to the insurer.” The Arbitrator interpreted this section to mean that the insurer did not have to pay for attendant care for any period before there was a Form 1 in place.
I point out that the subsection refers to an assessment of attendant care needs, not the assessment of attendant care needs. When Ms. Duffus delivered the second Form 1, there was already an assessment of attendant care needs in place, so the insurer was already aware of the claim and had been paying it, which suggests that s. 39(3) does not apply in the circumstances of this case.
In any event, Ms. M.G. submits that the alternative interpretation is that the section simply means that the insurer can, but does not have to, pay for attendant care until it receives a Form 1. Hence, according to Ms. M.G., the subsection speaks merely to the timing of payment of a benefit and not entitlement. She submits that this interpretation was accepted by Arbitrator Bayefsky in T.N. and Personal Insurance Company of Canada.8 Regarding s. 39(3), Arbitrator Bayefsky wrote:
It states that an insurer is not required to pay attendant care benefits before a Form 1 is submitted. This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose.
I note that arbitral case law has been mixed on this issue. Arbitrator Rogers took the same viewpoint as Arbitrator Sapin in Subramaniam and Wawanesa Mutual Insurance Company, (FSCO A09-002594, July 13, 2012). After the insurer terminated ACBs in that case, the insured filed a new Form 1, claiming retroactive benefits at a higher rate, but Arbitrator Rogers found that, based on s. 39(3), the insurer could not be required to pay any higher retroactive benefits. The retroactivity issue also arose in Veley and Motor Vehicle Accident Claims Fund, (FSCO A13-002630, May 5, 2014), but Arbitrator Ahlfeld found that the retroactivity of the Form 1s in issue in that case was not a relevant factor. While Arbitrator Mervin did award retroactive ACBs of a couple of months in Chang and State Farm Mutual Automobile Insurance Company, (FSCO A11-001155, April 26, 2013), it appears that he was not referred to s. 39(3). Similarly, Arbitrator Feldman in S.M., discussed above, did not refer to s. 39(3) either, but did not award retroactive ACBs because “the Insurer cannot be faulted for paying attendant care in accordance with the last Form 1 it had received.”
Prior to the appeal hearing in this matter, I wrote to the parties as follows:
[I]n Iankilevitch and CGU Insurance Company of Canada, (FSCO P03-00013, August 31, 2004), the issue was the meaning of s. 33(2) of the SABS-1996, and whether it meant suspension or forfeiture for noncompliance with the requirement to provide information. Paragraph 33(1)1 required a claimant to provide, on request, “any information reasonably required to assist the insurer in determining the person’s entitlement to a benefit.” Subsection 33(2) stated: “The benefit is not payable for any period before the person complies with subsection (1).” Director’s Delegate Makepeace reversed Arbitrator Bayefsky’s determination that those words authorized forfeiture of benefits. She found the effect of s. 33(2) was to exempt an insurer from s. 35 (the insurer’s strict obligation to promptly determine a person’s entitlement to benefits and to promptly pay the person benefits) until the insured person provided the information requested under s. 33(1). She stated that “To my mind, the key word in s. 33(2) is ‘before.’ This section is concerned with the timing of payment, not entitlement.”
By way of contrast, where the law states that “an insurer is not required to pay for an assessment or examination … if the expense for the assessment or examination is incurred … before the insurer approves the expense,”9 arbitrators have held that the consequence of the lack of prior approval for the assessment is that the insurer is not required to pay for it (subject to statutory exceptions): Scott and Dominion of Canada General Insurance Company, (FSCO A08-002256, November 13, 2009).
To reiterate, s. 39(3) of the SABS provides that “An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with subsection (1) is submitted to the insurer.” I find that there is a world of difference between a claim for an ACB and a claim for an assessment or examination. I agree with Arbitrator Bayefsky that stronger language would be required to treat an ACB claim the same as a claim for an assessment or examination. I find that the subsection speaks more to the timing of payment rather than entitlement. Further, as noted above, since there already was an assessment of attendant care needs in place when the later Form 1s were served, I have my doubts that s. 39(3) applies in any event.
Therefore, I find that the Arbitrator erred in finding in this case that the second and third Form 1s could not be retroactive. Furthermore, she did retroactively increase the ACB as of the date Economical had terminated it. The increase in the ACB arose out of the second Form 1 that was supposed to be retroactive to the first Form 1. Accordingly, I find that, based on the findings of the Arbitrator, the ACB should be in the amount of $1,615.32 from June 3, 2007.
I will now turn to Economical’s appeal of the special award and award of expenses.
Special Award and Award of Expenses
The special award related to Economical’s termination of IRBs. The Arbitrator found that “Economical did not reinstate Ms. M.G.’s IRBs until just before the start of this hearing, two and a half years after stopping them. Economical did not provide any explanation for the delay. I find both the delay and the lack of any explanation to be completely unacceptable.” As Ms. M.G. notes in her submissions, “the Applicant agrees that the stoppage was from November 2009 to July 2010 and not as described in the Arbitrator’s reasons. The insurer paid the [outstanding] IRB benefit in February 2011, just before the hearing commenced.”
Economical stopped the IRBs under s. 55 of the SABS on November 1, 2009, based on the treatment recommendation made by Dr. K. Suddaby, one of Economical’s post-104 IRB assessors, in his August 2009 psychiatric assessment. As the Arbitrator notes, under s. 55 an insurer may notify an insured person that it will stop paying a weekly benefit such as an IRB if the person does not obtain treatment and participate in rehabilitation “that is reasonable, available and necessary to permit the person to engage in the employment” the person would be able and qualified to perform the essential tasks of. The Arbitrator noted “There is no question that Dr. Suddaby’s treatment recommendations were necessary and reasonable” and he “felt that a significant recovery could be possible with treatment.” He suggested anti-depressant medications followed by referrals to a psychiatrist and psychologist.
The Arbitrator noted that Ms. M.G. attended an appointment with Dr. Cruz, a psychologist, on December 11, 2009, who prescribed anti-anxiety and anti-depressant medications. A year later, she noted, Dr. Cruz referred Ms. M.G. to a number of cognitive behavioural programmes that Ms. M.G. attended. Based on these referrals, the Arbitrator found that “Ms. M.G. complied with the requirements of section 55 of the Schedule in a timely manner by seeking and participating in necessary and reasonable treatment very similar to that recommended by Dr. Suddaby. Consequently, I find Economical had no valid reason to purport to stop her IRBs under s. 55, or any other section of the Schedule.”
Economical submits that there were two stages to the recommendations of Dr. Suddaby: first, medication, and then second, cognitive behavioural therapy. It submits that the oral evidence of its representative, Mr. Bonaventure, was that while Economical did receive notice of the medication prescription in February 2010, it did not receive a report of a psychologist providing cognitive behavioural therapy until June 7, 2010. IRBs were reinstated July 23, 2010. The outstanding balance from November 1, 2009 to July 23, 2010 was paid just before the arbitration hearing.
However, even at its best, that leaves an unexplained gap of some six weeks before benefits were reinstated. So to that extent at least, the evidence supports the Arbitrator’s conclusion that benefits were unreasonably withheld for some period.
But the Arbitrator’s decision goes further than that because she did not see Ms. M.G.’s compliance as a two-stage process. Rather, she found that Ms. M.G. complied with s. 55 by initially seeking medication. That is why she found Economical had no good reason to stop the IRBs at all. The Arbitrator found that once Economical learned Ms. M.G. sought medication as of December 11, 2009, namely within a few weeks of its termination of IRBs, it should have reinstated the IRBs and not waited for confirmation that Ms. M.G. was also attending therapy. This was a finding of fact that was the Arbitrator’s to make, and I have no reason to intervene.
Instead, the fact that the Arbitrator erred in her finding of when IRBs were reinstated may go merely to mitigation, in that Economical can raise the issue when it comes to determining the amount of the special award. The Arbitrator may take into account the fact that nine months and not two and a half years of IRBs were unreasonably withheld in determining the amount of the special award.
Therefore, Economical’s appeal of the granting of a special award is denied, without prejudice to either party’s right to appeal the quantum, whenever that is determined.
As to the issue of expenses of arbitration, the Arbitrator stated “As Ms. M.G. has been entirely successful in this proceeding, she is entitled to her arbitration expenses.”
Economical takes issue with the Arbitrator stating that Ms. M.G. was “entirely successful.” It submits that “Arbitrator Sapin failed to observe this duty of procedural fairness because she did not hear from the parties in this regard,” “she did not direct her attention to any of the [expense] criteria at all, as far as one can tell from the decision, except to some extent to the first criterion” of success, and her conclusion “is inconsistent with her own decision.” Economical submits that Ms. M.G. cannot be said to be “entirely successful” when the ACBs she was awarded were considerably less than those she claimed.
Economical also draws a parallel to Qureshi and State Farm Mutual Automobile Insurance Company, (FSCO P09-00030A/C, October 14, 2009). However, in Qureshi, the Delegate found that the Arbitrator in that case failed to give reasons for his decision that each party should bear their own expenses of the arbitration proceeding. In this case, the Arbitrator has not even reached the stage of determining the quantum. What is more, Economical agrees that Ms. M.G. is likely entitled to her expenses, so I find this aspect of the appeal is premature. I am not persuaded that the Arbitrator has fettered her discretion regarding the amount of the expenses merely by stating that Ms. M.G. was “entirely successful.” The appeal regarding expenses is therefore also denied, without prejudice to either party appealing the ultimate quantum that is awarded.
In conclusion, the amount of the monthly ACBs set out in the Arbitrator’s decision is amended to $1,615.32 retroactive to June 3, 2007, but her decision is otherwise affirmed, and the appeal and cross-appeal are likewise otherwise dismissed.
IV. EXPENSES
If the parties are unable to agree on the legal expenses of this appeal, applying the procedure set out in Rule 79.2 of the Dispute Resolution Practice Code, an expense hearing shall be requested, within sixty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of legal expenses, as are in dispute.
July 21, 2014
David Evans Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Since Economical filed its appeal first, Ms. M.G.’s appeal is technically a cross-appeal.
- Pursuant to s. 16(4) of the SABS, “The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.”
- See also Delegate Blackman’s discussion of the duty to give reasons in Ponnampalam and State Farm Mutual Automobile Insurance Company, (FSCO P12-00031, December 11, 2013), currently under judicial review.
- The parties agreed to leave it to me to do the math after the corrections were made.
- Exhibit 8 [Footnote in the original.]
- As already noted, the Arbitrator did find reasonable the recommended one hour during the day.
- (FSCO A06-000399, July 26, 2012).
- I was referring to s. 24(1.1) of the 1996 SABS.