Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 176

FSCO A14-005186

BETWEEN:

CAROLE BOYD

Applicant

and

ST. PAUL FIRE & MARINE

INSURANCE COMPANY

Insurer

DECISION ON A MOTION

FOR INTERIM BENEFITS

Before: Susan Sapin

Heard: September 25, 2014, in London, Ontario

Appearances: Scott M. Merrifield for Mrs. Boyd

Maura A. Thompson and Hermina Nuric for St. Paul Fire & Marine Insurance Company

Issues:

The Applicant, Carole Boyd, suffered serious injuries to her left shoulder and arm on April 20, 2011, when the London Transit bus in which she was riding stopped suddenly, causing her to be thrown from her wheelchair. She applied for and received statutory accident benefits, including attendant care and housekeeping/home maintenance benefits, from St. Paul Fire & Marine Insurance Company (“St. Paul”), payable under the Schedule.¹ St. Paul terminated attendant care and housekeeping benefits after 104 weeks on the basis that Mrs. Boyd did not suffer a catastrophic impairment as a result of the accident, and so was not entitled to those benefits beyond 104 weeks.

However, at Mrs. Boyd’s request, St. Paul did agree to continue paying attendant care benefits for an extra three months up to August 31, 2013, on the understanding that Mrs. Boyd would submit an Application for Determination of Catastrophic Impairment (OCF-19) by that time.

St. Paul received Mrs. Boyd’s OCF-19 on June 13, 2013. Mrs. Boyd claims that her accident-related impairments qualify as catastrophic under s. 3(2)(b) of the Schedule, because they have resulted in the ‘total and permanent loss of use’ of her left arm. St. Paul conducted independent medical assessments (IEs) of its own which determined that she did not suffer a catastrophic impairment as a result of the accident as it is defined under s.3(2)(b), nor an impairment or combination of impairments that results in 50% or more impairment of the whole person. ²

On that basis, St. Paul confirmed its refusal to pay attendant care and housekeeping/home maintenance expenses beyond 104 weeks, and Mrs. Boyd applied for mediation and arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mrs. Boyd has brought this motion pursuant to Rule 67 of the Dispute Resolution Practice Code — Fourth Edition for interim attendant care and housekeeping/home maintenance expenses pending a decision by an arbitrator about whether she meets the test for catastrophic impairment under s. 3(2)(b).³

The issue on this motion is:

1. Is Mrs. Boyd entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act?

Mrs. Boyd also claims interest on any amounts owing and her expenses incurred on this motion.

Result:

1. Mrs. Boyd is entitled to interim benefits of $1,117.25 from September 25, 2014, until a final decision is rendered or the matter is otherwise resolved.

2. The issue of expenses is deferred to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Background: Introduction

Section 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter, as does Rule 67.1 of the Dispute Resolution Practice Code.

St. Paul submits that Mrs. Boyd is precluded from bringing this motion for interim attendant care benefits because s. 45(4) of the Schedule only requires an insurer to pay interim benefits pending its determination of catastrophic impairment if the insured person makes an application for the determination within 104 weeks of the accident. As Mrs. Boyd’s OCF-19 was made 109 weeks after the accident, she should not be entitled to an interim order for the payment of attendant care benefits, despite s. 279(4.1) of the Act.

St. Paul maintains that to allow such a motion would undermine the ongoing efforts of the legislature to amend the Schedule to provide - and restrict - interim attendant care benefits to only insured persons with the most serious injuries, such as traumatic brain injuries or major physical impairments, as per the recommendations of the Final Report of the Catastrophic Impairment Expert Panel to the Superintendent.⁴ Furthermore, such a motion, if allowed, would lead to an increase in the number of applications for interim benefits pending determination of catastrophic impairment.

I find these arguments to be without merit. A four-year old report whose recommendations have yet to be – and may never be – implemented in their 2011 form, is hardly persuasive. Furthermore, there is nothing in the language of s. 45(4) of the Schedule that derogates from an arbitrator’s powers to order interim relief under s. 279(4.1) of the Act or that precludes the ordering of interim attendant care in cases where catastrophic impairment is in issue. Despite the lack of any case directly on that particular point, there is ample, well-established jurisprudence dealing with the purpose of interim relief in general and the powers of arbitrators to order it in appropriate circumstances, reflecting a number of important principles to be considered when granting interlocutory relief in administrative proceedings.

Interim Benefits – General Principles

Subsection 279(4.1) of the Act is a discretionary provision. In Ionnaidis and Canadian General Insurance Group,⁵ Arbitrator Manji summarized the principles for the exercise of this discretion, established in a number of arbitration decisions that emphasize the exceptional nature of interim relief:

• Generally an insured person’s entitlement to benefits is to be determined after a full hearing of all of the evidence.

• Novel or difficult questions of law should be dealt with in a full hearing and not within an interlocutory proceeding.

• Interim benefits are not to be awarded on a routine basis, but only in certain unusual circumstances.

• An interim order, by its very nature, is intended to cover a short period of time between the making of the order and the final order.

• An application for an interim order must be heard in a summary fashion and the order made expeditiously. At the arbitration hearing, after a full hearing of all of the evidence, the arbitrator may well come to the conclusion that a substantially different order should be made.

• An interim order is subject to the final order and an arbitrator may order interim benefits be repaid.

• Subsection 279(4.1) of the Act does not change the onus of proof. The onus of proof remains the insured person’s.

Although there are differing views, I find it is generally accepted by adjudicators in interim benefits cases that the onus is on the applicant to establish a prima facie case for entitlement, on a balance of probabilities. A prima facie case has been defined as one where the applicant’s evidence, if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement. An applicant must also establish some need or urgency, which need not be financial in nature.⁶

Other potentially relevant factors to take into account would be the strength of the claim versus the strength of the defence; potential success; the legislative purpose of the Schedule, which include consumer protection and timely access to benefits at reasonable cost; and the insurer’s failure to respect any of its provisions — with no single element as a pre-condition to entitlement.⁷

I find the most helpful approach to the question of whether interim benefits should be awarded is to consider all of the above factors in the context of the case as a whole, as suggested by Arbitrator Wilson in Nguyen⁸ and again in R.J., bearing in mind the central issue in all cases for interim relief - assessing the relative risk of harm to the parties from granting or withholding interlocutory relief.⁹

In Mrs. Boyd’s case, the issue to be determined is whether the injuries to her left arm and shoulder in the accident have resulted in the total and permanent loss of use of that arm, which would meet the definition of a catastrophic impairment under s. 3(2)(b) of the Schedule, and which would entitle her to claim ongoing enhanced attendant care benefits of up to $6,000 per month, as well as housekeeping/home maintenance expenses, from 104 weeks after the accident.

Relevant Factors:

In determining that Mrs. Boyd is entitled to interim attendant care benefits, I have considered the following factors.

Prima facie Case:

I find Mrs. Boyd has presented sufficient evidence, on a balance of probabilities, that her case for catastrophic impairment has a reasonable chance of success at arbitration.

Facts:

The pertinent facts are contained in the affidavits of Mrs. Boyd and Kathryn Boyle, St. Paul’s adjuster.

Mrs. Boyd, now 71 years old, is a former psychiatric nurse who left work in 2003 due to a major myocardial infarction which required the use of a motorized wheelchair. Other pre-accident health issues include diabetes, hypertension, peripheral neuropathy and obesity. Mrs. Boyd is right-handed and uses her right hand to operate her wheelchair.

There is no dispute that Mrs. Boyd’s accident injuries and resulting impairment are serious and permanent. They include a left proximal and distal humerus comminuted fracture — i.e. her left upper arm bone was broken into fragments near the shoulder and near the elbow — and a fracture of the T5-6 vertebrae. These have left her with constant left upper arm pain, intermittent right shoulder pain, and left wrist weakness and pain.¹⁰ Due to her health issues, surgery was not possible, and the upper arm fractures did not heal properly. The medical experts on both sides agree that Mrs. Boyd’s prognosis is poor and that her condition will likely worsen due to arthritis.

Before the accident, Mrs. Boyd required help from her husband Larry, also in a wheelchair, with daily tasks of life. She received additional outside help with attendant care and housekeeping from Community Care Access Centre (CCAC) and a personal support worker.

Mrs. Boyd’s evidence is that she required significantly more assistance with attendant care and housekeeping after the accident because she has lost the functional use of her left hand. The medical evidence on both sides supports this. Mrs. Boyd’s husband provided much of the extra help she needed, but he passed away in March 2013. Since then, she has had to rely more on extra services provided by CCAC. Henrietta Visscher, the occupational therapist (OT) who conducted the functional portion of the insurer’s assessment of catastrophic impairment (“CAT IE”), in May 2013, identified that Mrs. Boyd required 16 extra hours of assistance a week with self-care due to her accident-related functional deficits, for dressing, meals, toileting, hygiene, bathing and mobility, in addition to extra help with housekeeping (meals, washing dishes, grocery shopping, light cleaning.) Ms. Visscher also noted Mrs. Boyd was unable to use her left hand to assist even with stabilizing papers for her scrapbooking hobby, due to pain.¹¹

Mrs. Boyd’s evidence is that whereas before the accident, she worked the controls of her wheelchair with her right hand and used her left hand to complete various self and home care tasks (sweeping, vacuuming, carrying, hygiene), she can no longer use her left hand for these tasks due to pain, weakness, reduced range of motion, and fatigue.

Medical Evidence:

Both sides presented evidence on the question of impairment. Impairment is defined in the Schedule as a "loss or abnormality of a psychological, physiological or anatomical structure or function."¹² S. 3(2)(b) further defines a catastrophic impairment as one that can result in the total and permanent loss of use of an arm. The Schedule mandates the use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“AMA Guides”) in evaluating impairments. The AMA Guides emphasize that a disability or handicap exists where "an impairment is associated with an obstacle to useful activity."¹³ Entitlement tests for benefits under the Schedule, whether they be for housekeeping, income replacement, caregiver, or attendant care, are all based on whether a person can complete certain tasks or activities — the degree to which, in other words, an impairment affects useful function in various everyday activities. Whether the loss of use of an arm equates to a total loss of useful function for purposes of entitlement to statutory accident benefits under the Schedule may be a legal question, but it is not an abstract or theoretical one, and it requires a practical answer. In other words, lay and medical evidence is required to determine what specific tasks a person can no longer do because of an impairment. As the issue is one of assessing function, the evidence of occupational therapists carries particular weight.

In this case, there appears to be little disagreement between St. Paul’s OT, Ms. Visscher, and Ms. Kathleen Gahagan, who assessed Mrs. Boyd in December 2013, about what Mrs. Boyd can actually do. Both OT’s reviewed the medical opinions on file and directly addressed, in detail, the loss of useful function of Mrs. Boyd’s left arm. Ms. Gahagan accepted the assessment of Mrs. Boyd’s limited range of motion outlined by Ms. Visscher. She further noted that Mrs. Boyd could not identify a single task that she could perform with the left hand alone, such as writing, turning a key, washing hair, donning a shirt, placing an object on a shelf overhead, carrying a bag, and removing something from a back pocket. Ms. Gahagan concluded Mrs. Boyd’s ability to use her left upper extremity in functional tasks “is currently extremely negligible, and certainly approaching a total loss of use.”

Ms. Visscher found that Mrs. Boyd could not use her left hand unilaterally for bathing, hygiene, or dressing; and could not use it bilaterally with the right hand – pouring coffee while holding the cup, for example, or holding down a piece of bread while buttering it.¹⁴ Nor, significantly, could she use her left hand to transfer safely out of her wheelchair, as she had before the accident, or to support herself for short walks with a walker. Ms. Visscher determined that, although Mrs. Boyd had normal grip strength in her left hand, ". . . the decreased range of motion in her left shoulder, elbow and forearm limit her ability to reach objects, limiting her ability to use her grip in that hand functionally." Due to an increase in pain on dexterity testing of the left wrist, Ms. Visscher determined that even a minimal amount of activity could not be tolerated, such that, for example, it would be unlikely that Mrs. Boyd could operate her wheelchair with her left hand. Although St. Paul specifically asked Ms. Visscher if Mrs. Boyd met the definition of catastrophic impairment, Ms. Visscher did not answer the question, deferring “further comment” to Dr. H. Platnick, the general practitioner who prepared the Catastrophic Executive Summary Report. However, in a previous assessment in which Ms. Visscher opined that Mrs. Boyd did not meet the complete inability test for non-earner benefits, she did observe that Mrs. Boyd did have “basically a non-functional left upper extremity.”¹⁵

St. Paul relies on the medical opinions of Dr. John Harrington, orthopaedic surgeon, and Dr. Andrew Kertesz, neurologist, who assessed Mrs. Boyd as part of a multidisciplinary CAT IE in October 2013, to determine if her impairments were catastrophic. From the perspective of their medical disciplines, these assessors concluded Mrs. Boyd did not meet the test for catastrophic impairment because she did not suffer a total loss of use of her left arm. Dr. Harrington's opinion was that Mrs. Boyd did not meet the "strict definition of catastrophic impairment . . .," problematic in itself but more so because there is little discussion in his report (and even less in Dr. Kertesz’) relating their objective findings about the limited active and passive mobility and weakness of Mrs. Boyd’s left arm and hand to actual useful function, i.e. to her ability to carry out specific tasks, consistently and repetitively, on a daily basis.

As noted, a prima facie case is one where the applicant’s evidence, if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement. Mrs. Boyd’s evidence, outlined above, is compelling because of the detailed evidence about specific tasks she claims she cannot perform. St. Paul’s case is relatively weaker on its face, because I find, in determining “total loss of use,” its assessors placed more emphasis on residual range of motion, strength and dexterity, and did not give adequate weight in their reports to loss of function as it relates to actual tasks of everyday living. For these reasons, I find the evidence from both sides outlined above, on its face, would seem to indicate that, on a prima facie basis, and without a full hearing of all of the evidence, Mrs. Boyd’s case is the stronger at this point.

Novel or Difficult Questions of Law:

I reject Mrs. Boyd’s argument that the question of whether she meets the definition of catastrophic impairment set out in s. 3(2)(b) can be determined on a preliminary basis without a full hearing.

Whether Mrs. Boyd’s accident-related impairments qualify as catastrophic under s. 3(2)(b) of the Schedule, on the grounds that they have resulted in the "total and permanent loss of use" of her left arm, is a novel issue, as there are no cases on point interpreting that particular provision. Mrs. Boyd referred to case law dealing with similar legal definitions of disability in the context of accidental death and dismemberment insurance which, I agree, would be helpful in interpreting s. 3(2)(b). However, although the question itself – what is a total and permanent loss of use – is a question of law, it cannot be answered in a vacuum, and requires applying the law to the facts in any particular case. That requires a full hearing.

I also take note that both FSCO and the courts tend to lean in favour of a broad and liberal interpretation of the Schedule, which is remedial consumer protection legislation intended to provide necessary benefits in a timely fashion.¹⁶

Need or Urgency Pending a Final Determination of Catastrophic Impairment:¹⁷

Under the Schedule, Mrs. Boyd is entitled to additional attendant care and housekeeping benefits more than 104 weeks after the accident only if she is found to be catastrophically impaired, and she can establish that the expenses are reasonably required as a result of the accident. She must also show that she has incurred the expenses. For purposes of this motion, she must establish, on a prima facie basis, that she will suffer financial hardship or some other harm if she does not receive assistance to pay for the care she needs pending a final determination of her entitlement at the arbitration hearing scheduled to begin July 7, 2015.

Attendant Care:

Before the accident, Mrs. Boyd received attendant care and housekeeping assistance from her husband, a paid housekeeper, and CCAC. There is no dispute her need for attendant care increased after the accident due to her accident impairments, or that some of the increased care was provided by CCAC and Mr. Boyd. After Mr. Boyd died in March 2013, just shy of the two-year mark, I understand CCAC stepped up its services to meet Mrs. Boyd’s need for care. It currently provides 110 hours per month of care, which Mrs. Boyd submits is not sufficient for her needs.

The onus is on Mrs. Boyd to establish, both on this motion and at the hearing, how much of the attendant care she now requires is due to the accident, and what it costs. For purposes of this interim benefits motion, a prima facie case based on the limited evidence before me is sufficient; at the hearing, however, Mrs. Boyd will need to prove entitlement and actual cost on a balance of probabilities. For an award of interim benefits, Mrs. Boyd must also demonstrate some need or urgency, financial or otherwise.

Amount of Attendant Care Required:

Based on the limited and untested evidence before me at this preliminary hearing, I have concluded, on a prima facie basis only, and until a clearer picture of the facts is presented in a full hearing of the merits, that Mrs. Boyd requires 109 hours of attendant care per month as a result of the accident, over and above the 90 hours CCAC is able to provide going forward, at a cost of $1,117.25. My reasoning is based on the following facts and assumptions.

A Future Care Cost Report prepared on Mrs. Boyd’s behalf by Shelley Cosma, R.N., in October 2012, before the March 2013 death of Mr. Boyd, noted that at that time, Mrs. Boyd’s attendant care needs due to the accident were identified as being 149.28 hours per month, at a cost of $1,876.90 per month or $22,521.63 per year.¹⁸

At that time, Mrs. Boyd was also receiving 43 hours per month from CCAC,¹⁹ but it is not clear if that was accident-related, if it was the same number of hours CCAC provided pre-accident, or some other number. In any event, in October 2012, Mrs. Boyd was receiving 192.28 hours per month, not counting the number of hours contributed by Mr. Boyd. Ms. Cosma noted that if Mr. Boyd was not available to provide his share of care, the 17 extra hours of care CCAC could provide (up to the 60 hours identified in the report as the maximum available from CCAC at that time) would not be sufficient to cover Mrs. Boyd’s attendant care and housekeeping needs.

On those numbers, at face value, Mrs. Boyd’s minimum care needs post-accident, as of October 2012, were estimated at more than 209.28 (149.28 + 43 + 17) hours per month. Ms. Cosma felt there was a real possibility Mrs. Boyd might require 24-hour care if her husband could no longer assist her, as she could not toilet herself independently.

St. Paul approved the amounts in Mrs. Boyd’s Form 1’s up to August 31, 2013. I find it reasonable to conclude from this that St. Paul accepted that the amount of attendant care required because of the accident was, up until that time, at least 149 hours per month.

Two more Form 1’s prepared for Mrs. Boyd by Ms. Kathleen Gahagan, OT, dated March 18, 2013, (before Mr. Boyd passed away) and December 3, 2013, identified Mrs. Boyd’s needs as 118 and 146.91 hours per month, respectively. Ms. Gahagan’s report is silent as to any care provided by CCAC or by Mr. Boyd. The only difference between the two Form 1’s is that in the December form, Ms. Gahagan added 37.6 more hours to assist Mrs. Boyd with transfers in and out of her wheelchair. As this corresponds to Mrs. Boyd’s evidence that she has had difficulty with this after her husband died, I find the December Form 1 is likely more accurate, at 146.91 hours. This number is also consistent with Ms. Bowie’s.

St. Paul eventually conducted its own assessment of attendant care needs on May 2, 2013, more than two years after the accident. St. Paul’s OT, Ms. H. Visscher, determined Mrs. Boyd required 66 hours per month of attendant care, at a cost of $978.31. Unlike Ms. Bowie and Ms. Gahagan, Ms. Visscher stated in her accompanying report that 66 hours represented only the level of attendant care required because of the accident.²⁰ At p. 21 of her report, she identified about 30‑31 hours of pre-accident assistance Mrs. Boyd received from CCAC and a housekeeper, for tasks that appear to include both housekeeping and attendant care. Mr. Boyd’s pre- or post-accident contribution does not appear to be quantified.

Ms. Visscher does not appear to take into account the 43 hours CCAC was providing by October 2012, as per Ms. Cosma’s report, when Mr. Boyd was still alive. Ms. Cosma’s report would seem to indicate CCAC provided 13 more hours after the accident than before. Applying this figure to Ms. Visscher’s analysis, Mrs. Boyd required accident-related care of at least 79 (66 + 13) hours per month, not 66.

The September 24, 2014, letter from CCAC indicates that it has provided 110 hours of care since Mr. Boyd’s death in March 2013 – an increase of 67 hours from the 43 hours in place in October 2012, 13 of which were already likely accident-related. I find it reasonable to assume, on a prima facie basis and in the absence of any evidence to the contrary, that the extra 67 + 13 hours replaces some or all of the accident-related care provided by Mr. Boyd after the accident.²¹ Adding that number to Ms. Visscher’s 79 hours brings Mrs. Boyd’s accident-related attendant care to a total of 159 hours per month. This makes the assessments of Ms. Bowie and Ms. Gahagan, at 146 hours per month, more likely than not, at this point, to be more accurate than Ms. Visscher’s numbers.

If Mrs. Boyd needs 159 hours of attendant care per month because of the accident, and CCAC’s current portion of that care is 70 of the 110 hours it currently provides, St. Paul’s share would be 89 hours per month. If CCAC reduces the care it provides to Mrs. Boyd by 20 hours per month, which I find to be a reasonable prospect based on the CCAC correspondence, then St. Paul’s share would be 109 hours per month.

As to cost, applying the same reasoning St. Paul suggested in its October 21, 2014, written submissions results in a range of between $1,117.25 (Level 1 care at $10.25 per hour) and $2,109.15 (Level 3 care at $19.35 per hour). As the biggest difference between the Form 1’s of Ms. Gahagan and Ms. Visscher relate to Level 1 care, I find that rate to be the most reasonable, on an interim basis.²²

Hardship

St. Paul submits that Mrs. Boyd has not established urgency, hardship, or financial need to justify an award of interim benefits, for several reasons.

Firstly, of the $53,329.38 St. Paul agreed to fund for twenty-seven and a half months after the accident (May 16, 2011, to August 31, 2013, at an average of $1,939 per month), Mrs. Boyd only claimed $31,573.38, leaving $21,756.17 unclaimed. This argument is not persuasive. Mrs. Boyd likely did not incur these amounts because the care was provided by her husband and CCAC, at no actual cost to her. She now needs to replace the care previously provided by her husband, and 20 hours CCAC cannot continue to provide.

Secondly, Mrs. Boyd can afford to pay for any extra care she needs because, according to her affidavit, her monthly income of $2,950.52 exceeds her current living expenses of $1,931.78, leaving just over $1,000 available to pay for any extra care she requires. St. Paul submits that a service cut by CCAC of 20 hours at Form 1 rates²³ represents an added cost to Mrs. Boyd of between $205 and $387. I find this to be incorrect in that it assumes the 110 hours currently provided by CCAC represents the full amount of care Mrs. Boyd needs, which I have found is likely not the case.

I find that if Mrs. Boyd were required to pay for the full amount of care she requires because of the accident, at a conservative estimate of $1,117.25, she would be left with virtually no disposable income.

I understand from Mrs. Boyd’s affidavit and from the CCAC correspondence, that without the additional care she needs, Mrs. Boyd faces the very real possibility of an irreversible move to a long term care assisted living facility, a prospect which is very unappealing to her, as she values her independence, and one she would not be considering if funding was available for the extra help she requires.²⁴ A second alternative for in-home care proposed by CCAC through a third agency would require Mrs. Boyd to give up her current exercise programmes in the community, also an undesirable option.

Mrs. Boyd faces a unique set of circumstances. Her living situation at the moment is precarious; her options very restricted. The risk of harm to her of an irreversible change in living conditions, not to mention the hardship in the form of stress and uncertainty associated with her immediate future, which could be avoided by the provision of in-home attendant care pending a final determination of entitlement, outweighs the risk of harm faced by St. Paul in having to pay for attendant care on an interim basis. As for St. Paul’s concern regarding repayment should Mrs. Boyd not be found to be catastrophically impaired after all, I accept Mrs. Boyd’s submission, that she has a companion tort action, as sufficient answer to that concern.

St. Paul shall pay to Mrs. Boyd attendant care benefits of $1,117.25 from September 25, 2014, until a final decision is rendered or the matter otherwise resolved.

Housekeeping

Regarding housekeeping, based on Mrs. Boyd’s admission in her affidavit that her housekeeper is able, for the moment, to take on any extra housekeeping tasks in the same time and for the same remuneration as before the accident, I find interim housekeeping expenses are not required at this time.

Insurer’s Disregard of the Schedule:

In her OCF-19 prepared by her treating orthopaedic surgeon, Dr. Sanders, Mrs. Boyd claimed only that she was catastrophically impaired under s. 3(2)(b), on the basis that she suffered an impairment which resulted in the total and permanent loss of use of her left arm. However, at St. Paul’s request, Mrs. Boyd agreed to undergo s. 44 IEs to also determine whether she sustained a catastrophic impairment resulting in 55% impairment of the whole person under s. 3(2) e of the Schedule.

St. Paul’s CAT IEs determined Mrs. Boyd did not meet either definition of catastrophic impairment. St. Paul sent Mrs. Boyd its expert reports, and sent an Explanation of Benefits (OCF-9) informing her that it had determined that she did not meet the 55% WPI test, on August 30, 2013. The OCF-9 did not mention s. 3(2)b, the criteria under which Mrs. Boyd had originally applied. St. Paul submits this omission was merely an oversight and is of no consequence.

Mrs. Boyd submits it is a factor I should consider in deciding whether she should be entitled to interim benefits, as the OCF-9 is deficient. This is unnecessary as I find she is entitled to interim attendant care benefits on other grounds. Were this a case about time limits, a defective OCF-9 would matter. However, in the context of this particular motion for interim benefits, I do not find St. Paul’s failure to comply with the Schedule to be significant or to entail any consequences.

EXPENSES:

The question of expenses for this motion is deferred to the hearing arbitrator.

November 13, 2014

Susan Sapin

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 176

FSCO A14-005186

BETWEEN:

CAROLE BOYD

Applicant

and

ST. PAUL FIRE & MARINE

INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mrs. Boyd is entitled to interim attendant care benefits of $1,117.25 per month from September 25, 2014, until a final decision is rendered or the matter otherwise is resolved.

2. The issue of expenses is deferred to the hearing arbitrator.

November 13, 2014

Susan Sapin

Arbitrator

Date

APPENDIX

Documents submitted at the preliminary issue hearing:

• Motion Record of the Applicant

• Medical Brief of Carol Boyd

• Applicant’s Factum

• Applicant’s Book of Authorities

• Applicant’s Supplementary Book of Authorities

• Factum and Book of Authorities of the Respondent

• Affidavit of Kathryn Boyle

• Transcript of cross-examination of Kathryn Boyle

• Exhibit 1 – E-mail from Scott Merrifield to Kathryn Boyle dated March 13, 2014

• Exhibit 2 – Letter from Scott Merrifield to Kathryn Boyle dated April 8, 2014

• Exhibit 3 ?

• Exhibit 4 – E-mail from Kathryn Boyle to Kim Moore dated August 20, 2013

Documents submitted post-hearing:

• Letter from CCAC to Mr. Merrifield dated September 25, 2014, submitted with Mr. Merrifield’s submissions dated October 14, 2014

• Submissions from Ms. Maura Thompson dated October 21, 2014

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2St. Paul's assessors concluded that Mrs. Boyd suffered a 32% whole person impairment (WPI). Mrs. Boyd did not apply for a determination of catastrophic impairment on that basis, and that issue is not in dispute.
3. 3The materials filed in support of this motion are listed in “Appendix A” to this decision.
4. 4Dated April 8, 2011 — Tab 5 of the Factum and Book of Authorities of the Respondent.
5. 5(OIC A97-001551, December 15, 1997)
6. 6Huynh v. TD Home and Auto Insurance Co. (FSCO A05-002369, July 27, 2006); Malabanan and Canadian General Insurance Company (OIC A96-000084, July 26, 1996) pp. 11, 12; Ioannidis pp. 6,7
7. 7R.J. and Dominion of Canada General Insurance Company (FSCO A12-001233, September 17, 2013) at p. 4
8. 8Nguyen and State Farm Mutual Automobile Insurance Company (FSCO A05-000305, December 22, 2005)
9. 9Nguyen at p. 11, quoting Justice Sharpe in Injunctions and Specific Performance, (2nd ed.: 1992, Canada Law Book)
10. 10Motion Record and Affidavit of the Applicant
11. 11Occupational Therapy Assessment IE of Henrietta Visscher, Affidavit of Kathryn Boyle, Tab P at p. 4 of 32.
12. 12S.2(1).
13. 13AMA Guides, Chapter 1, Page 2
14. 14Ibid., at p. 3
15. 15Occupational Therapy In-home IE report dated May 22, 2013.
16. 16Security National Insurance Company/Monnex Insurance Management Inc. and Hodges (FSCO P12-00029, February 22, 2013) Appeal, Monks and ING Insurance Company of Canada 2008 ONCA 269, [2008] O.J. No. 1371, Nguyen and State Farm, supra at p. 5.
17. 17This analysis contains factual information contained in a letter from CCAC to Mr. Merrifield dated September 25, 2014, as well as written submissions, unsolicited but submitted by the parties on consent on October 14 and 21, 2014, after the motion was heard.
18. 18This amount appears to be based on a Form 1 (Tab 2) Applicant’s Medical Brief, prepared on behalf of Mrs. Boyd by C. Bowie, OT, dated November 30, 2011. A second Form 1, dated May 1, 2012, and based on an assessment conducted in March 2012 by Ms. Bowie also identified 149 hours of attendant care.
19. 19Medical Brief, Tab 5, report of Shelley Cosma, October 30, 2012; Form 1 Assessment of Attendant Care Needs, C. Bowie, March 30, 2012.
20. 20Occupational Therapy In-Home Report, May 22, 2013, at p.4, Medical Brief of Carol Boyd, Tab 7.
21. 21It is not possible on the evidence before me to determine how much as no one appears to have turned their minds to quantifying Mr. Boyd’s pre-and post-accident contributions. It may in fact not be possible to quantify them.
22. 22The biggest difference relates to amounts allotted for Level 1 care, which include dressing, undressing, grooming and mobility (assisting Mrs. Boyd in and out of her wheelchair.) Ms. Visscher allotted 41.64 hours per month to this category, with zero assistance for mobility; and Ms. Gahagan 108.21 hours, for more or less the same activities, but including 37.63 hours per month for mobility.
23. 23At hourly rates of $10.25 for Level 2 care, $13.19 for Level 1 care, and $19.35 for Level 3 care).
24. 24Motion Record and Affidavit of the Applicant.