Neutral Citation: 2015 ONFSCDRS 7 FSCO A12-005316

BETWEEN:

E.B. Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Insurer

*Minor errors on pgs. 1 and 2 corrected on February 4, 2015, in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Stuart Mutch Heard: July 7, 8, 9, 10 and 18, 2014 at the Financial Services Commission, Toronto, Ontario Appearances: Mr. Alexei Antonov, Gary Mazin and Ms. Supriya Sharma for E.B. Mr. Alfred W.F. Cheng for Security National Insurance Company

The Applicant, E.B., alleges that she was injured as the result of a motor vehicle accident that took place on December 9, 2010. She applied for caregiving benefits, attendant care and housekeeping benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security National"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues

Is the Applicant entitled to receive Attendant Care Benefits in the amount of $816.46 per month from December 9, 2010 to September 25, 2011 and $615.80 per month from September 26, 2011 to December 9, 2012?
Is the Applicant entitled to Housekeeping and Home Maintenance expenses in the amount of $100.00 per week from December 10, 2010 to December 9, 2012?
Is the Applicant entitled to a Caregiver Benefit in the amount of $250 per week, from December 10, 2010 to date and ongoing?
Is either party entitled to its expenses?
Is the Applicant entitled a Special Award?

Result

The Applicant is not entitled to Attendant Care Benefits.
The Applicant is entitled to Housekeeping and Home Maintenance expenses in the amount of $77 per week from June 27, 2011 to February 9, 2012 and $44 per week from February 10, 2012 to July 22, 2012.
The Applicant is not entitled to a Caregiver Benefit.
If the parties cannot agree on expenses, they may make submissions.
The parties may make submissions regarding a Special Award.

The Use of Initials

The Applicant requested that initials be used in place of family names in this decision. The request is based on the needs of her adolescent daughter who does not want her learning disability be made public. After the hearing, Security National requested that only the daughter be identified by her initials. As I stated in a letter to counsel, this would not achieve the objective of anonymizing the decision, and the naming of other family members would provide a link to the daughter.

I find the Applicant's request is a reasonable one and accordingly I will use initials only when referring to the Applicant and her family members.

Background

The Applicant was 47 years old at the time of the accident. She is the mother of three children, ages 25, 22, and 15. She was divorced in 2006. The younger daughter, N.T., born August 16, 1998 resides with her. At the time of the accident the Applicant was a supply teacher for a Montessori school. Approximately three months before the accident the Applicant and her daughter moved in with her parents. She was having renovations done to her home which she subsequently listed for sale. Her plan was to reside with her parents until the home sold. By the time of the accident, the house had not sold and the Applicant had decided to return to the home around December 17th 2010, when her daughter's school break began.

The Applicant had a history of fibromyalgia dating back to 1996. She testified that this condition improved dramatically with her last pregnancy in 1998 and that this condition was well under control at the time of the accident. She was involved in two prior motor vehicle accidents in 2008 and 2009. Both were rear-end collisions. She stated that she had recovered from the 2008 accident and she was on her way to complete recovery from her 2009 accident at the time of the subject accident. She indicated that she did not miss any time from work following those accidents. She testified that prior to those two accidents she bicycled, camped, canoed and skied and that she was intent on resuming those activities when the subject accident occurred. She served on committees of charitable organizations and co-chaired a fund-raising event. She hosted family dinners and took her daughters on excursions to Wonderland and Winterlude in Ottawa.

At the time of the collision the Applicant had stopped at a red light. She was struck from behind by a vehicle going at what she estimated to be 60 to 80 kilometres per hour. The force of the collision was such that her airbag deployed and her seat broke. Her car was pushed into the vehicle ahead, which in turn collided with the vehicle in front of it. The Applicant was uncertain if she lost consciousness. She was taken to North York General Hospital by ambulance. She stated that she had "excruciating pain" in her upper shoulders, lower back, and shins. Her legs and chest were x-rayed and an ultrasound was done of her internal organs. No fractures or internal bleeding was noted, however there were multiple bruises. She was given a prescription for Percocet and discharged the same day.

Applicant's evidence as to her degree of impairment

The Applicant testified that she was able to do very little immediately after the accident. She found breathing painful. Her chiropractor, Dr. Behar, treated her at her parents' residence. She testified that she had to be treated sitting up in a chair. Later her father or her sister would drive her to appointments. She needed assistance with almost all of her personal care. Her parents, sister and occasionally cleaning personnel hired by her parents assisted with her personal care, including bathing and showering, brushing her teeth, dressing and putting on ice packs.

Over time she began to slowly improve. She stated she could dress her upper body, with pain, about three to four months after the accident and she was independent in dressing within one year of the accident. By September or October 2011 she could bathe herself and by December shower. The Applicant indicated that by December 2011 she would brush her teeth and hair and dress herself independently and she could do light housekeeping.

At one point in her testimony she indicated that she resumed driving on a limited basis about three months after the accident. At another point she indicated that it was six or seven months before she would resume driving.

Presently she still requires help with jewellery or hair, if going out, and with foot care. At the two year mark she still needed help with meals and cleaning, including such tasks as changing bed linens. She was definite she has not resumed all of her housekeeping tasks. She can make meals occasionally but cannot make dinner seven days a week.

The meaning of "incurred"

Caregiving, attendant care and housekeeping provisions of the Schedule require that expenses be incurred by or on behalf of the insured person before the insured person can claim a right to those benefits. Under the 1996 Schedule,² "incurred" was not defined. The 2010 Schedule, which came into effect on September 1, 2010, and was in effect at the time of the Applicant's accident, stipulates that an expense is not deemed to be incurred unless the following criteria are met:

The insured person received the goods and services to which the expenses relates;
The insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and
the person who provided the goods or services,
- did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged but for the accident, or
- sustained an economic loss as a result or providing the goods and services to the insured person.³

Security National takes the position that the Applicant's claim for accident benefits is subject to the incurred expense requirement and that the Applicant has not provided adequate proof that she paid, has promised to pay or is otherwise legally obligated to pay the expense. As well, Security National argues that, with the exception of the cleaning personnel engaged by Mr. and Mrs. B., none of the people who provided the goods and services did so in the course of their employment, occupation or profession and that none of those individuals, specifically, her parents, Mr. and Mrs. B., or her sister, Ms. M.B., sustained an economic loss as a result of providing those services.

The Applicant's counsel argues that because the Applicant's policy at the time of the accident was a transitional policy (one that was in place on September 1, 2010, the date the Schedule came into force and that had not expired by the time the accident occurred), the above provision does not apply to her accident. Counsel cited several cases as authority for the proposition that the Applicant's rights under her policy of insurance crystallized at the time she entered into that contract and that those rights cannot be retroactively altered or removed by subsequent legislation. In particular the Applicant's counsel cited the Supreme Court of Canada judgment in Dikranian v. Quebec (Attorney General)⁴ and the FSCO case of R.J. and Dominion of Canada Life Insurance Company.⁵

The Insurance Act provides as follows:

268(1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. 1993, c. 10, s. 26 (1).

In GAN Canada Insurance Company and David Lehman⁶, Director's Delegate Draper states:

This provision clearly contemplates amendments to the SABS that will affect the coverage provided in existing policies. In other words, the terms of an automobile insurance policy are not fixed for its entire duration.

This would suggest that the terms of an existing policy can be changed "mid-stream" by an amendment to the Schedule.

On the other hand, it is a generally accepted principle that legislation should not have a retrospective effect on substantive rights. In R. v. Dineley⁷ the majority of the Supreme Court of Canada stated the following:

Courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where new legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. The key task in determining the temporal application of new legislative provisions lies not in labelling the provisions "procedural" or "substantive" but in discerning whether they affect substantive rights.

I am prepared to accept that the "incurred" definition found in the 2010 Schedule would affect substantive rights. It places an evidentiary burden upon the insured that could have a determinative impact on the insured's right to receive or not receive benefits under the Schedule.

In Dikranian, the issue was whether subsequent legislation could unilaterally alter the terms of an existing contract between the appellant and a financial institution for repayment of student loans. The Supreme Court found that it could not, reversing two lower court rulings. The Court observed that the principle against interference with vested rights has long been accepted in Canadian law. It then adopted Professor Cote's view that an individual must meet two criteria in order to claim a vested right: (1) the individual's legal (juridical) situation must be tangible and concrete rather than general and abstract; and (2) this legal situation must have been sufficiently constituted at the time of the new statute's commencement.

The Court then asked the question, when does the right become sufficiently concrete? It noted that the rights and obligations resulting from a contract are usually created at the time of the contract itself.

Black's Law Dictionary defines "vested" as "Accrued; fixed; settled; absolute; having the character or giving the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent."

A motor vehicle accident is, by its very nature, uncertain and unplanned. In R.J. and Dominion of Canada General Insurance Company,⁸ Arbitrator Wilson stated:

However, as Lord Mansfield observed in Carter v. Boehm: "Insurance is a contract based upon speculation." All potential benefits under a policy of insurance are speculative at the time the contract is formed; that is until the happening of the incident which crystallizes those rights to indemnity.

In my view, the right to benefits as set out in any of the Schedules, and incorporated into a policy of insurance, are contingent rights. That is, they are contingent upon the involvement of an insured person in a motor vehicle accident. They do not meet the test set out in Dikranian, that of a "sufficiently constituted" legal situation. There is no right to benefits in the absence of involvement in a motor vehicle accident. The motor vehicle accident can be said to be a condition precedent to the right to benefits.

By that reasoning, in the circumstances of this arbitration, the rights of the Applicant crystallized on December 9, 2010, the date of the accident, three months after the new Schedule came into force.

The new Schedule specifically recognizes motor vehicle policies that are in effect on September 1, 2010. Section 68 provides that the benefits in section 28, (which are essentially the same benefits as provided in the 1996 Schedule) and sections 27(1), 28 and 29 of the "Old Regulation" are deemed to be included in the motor vehicle liability policy until its expiry of termination.

If it was the legislature's intention to exclude the definition of "incurred" from applying to transitional policies, it could have done so within the transitional provisions set out in section 68. It did not do so.

I find that the Applicant's rights under the policy vested on the date of the accident. The definition of incurred found in section 3(7)(e) of the Schedule applies to her claim for accident benefits. Unless those providing caregiving, attendant care and/or housekeeping services were doing so in the course of employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, they must demonstrate that they have sustained an economic loss as a result of providing goods or services to the person before Security National can be obliged to pay a benefit.

The Applicant testified that the following people provided caregiving, attendant care and housekeeping services:

Her mother, Mrs. B.
Her father, Mr. B.
Her sister, Ms. B.
Housecleaners hired by her parents provided housecleaning and some attendant care

ATTENDANT CARE

Under the Schedule attendant care benefits are payable for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.

The Applicant submitted three Assessment of Attendant Care Needs Forms (Form 1)⁹ to Security National, outlining recommended attendant care. They are as follows:

December 22, 2010 - Kathleen Dougall of Vista Disability Management Inc. assessed the Applicant's attendant care benefit at $422.88 per month;
June 7, 2011 - Jessie Lin of Century Diagnostics and Assessment Centre assessed the Applicant's attendant care benefit at $816.46 per month;
September 6, 2011 - Jessie Lin assessed the Applicant's attendant care benefit at $615.80 per month

Both the Applicant and Mr. B. testified that Mr. B. and Mrs. B. provided both housekeeping and attendant care services to the Applicant after the accident. The Applicant testified that, in the period immediately following the accident her sister, Ms. M.B., came to the house almost every day after work to assist her parents in the Applicant's care. She brought the Applicant ice packs and meals and assisted in other ways, detailed below. The Applicant admitted that she didn't really keep track of how frequently the sister came by to help.

Included in the documentary evidence are invoices from Mr. and Mrs. B. indicating they provided attendant care services to the Applicant for the period of December 12, 2010 to August 9, 2012 in the amount of $422.88 per month.¹⁰

As I have found above, the "incurred" requirements of the 2010 Schedule require that the service providers demonstrate an "economic loss" in order for an applicant to claim attendant care and housekeeping expenses. In Henry¹¹ the Court of Appeal declined to define "economic loss." However the Court indicated that economic loss was a threshold one had to pass through in order to make a claim for attendant care benefits. It described the economic loss requirement as a "rough check" on attendant care costs.

Mr. B.

Mr. B. is 87 years of age. He testified that he continues to work as an appliance salesman. Most of his work is done by telephone, from his home office. He sells appliances to apartment buildings for a commission. He also testified that he "used to be" in real estate and that "people still call me".

Mr. B. testified that after the accident he helped the Applicant walk to the bathroom, put on socks and shoes and outerwear. He drove the Applicant to medical appointments and drove the Applicant's daughter to school. He testified that prior to the accident he and his wife hired outside cleaning assistance every two or three weeks for seven or eight hours at a time. After the accident they "doubled" the amount of hired cleaning help to once or twice per week for seven or eight hours at a time.

Mr. B. indicated that helping the Applicant interfered with business activities. He indicated that he couldn't answer calls promptly and he would lose sales. He couldn't attend to real estate sales because he couldn't make inspections. When asked to quantify the expenses he incurred on behalf of the Applicant Mr. B. replied that he couldn't estimate these, and then gave the figure of $100,000. He couldn't estimate his business losses.

Included in the documentary evidence are copies of Mr. B.'s income tax returns for the years 2009, 2010, 2011 and 2012.¹²

Mr. B.'s returns show a constant pension income, from various sources, of approximately $24,000 per year. An exception occurred in 2009 when he received an apparently one-time pension of $70,000. In his testimony Mr. B. alluded to receiving a pension as a result of being a Holocaust survivor. I am uncertain if he was referring to that one-time payment.

Mr. B.'s employment and commission income, as shown on his income tax returns, is as follows:

Year	Employment Income	Commission Income
2009	$14,046.68	$11,782.65
2010	$21,322.78	$19,599.53
2011	$24,117.49	$21,569.69
2012	$19,669.35	$18,551.70

Given Mr. B.'s testimony, one would expect a drop in his income in 2011, given that that is when the Applicant's needs were the greatest. However, his income tax return shows a considerable increase over the amounts reported for 2009 and an increase over the 2010 figures.

I accept Mr. B.'s evidence that he drove the Applicant to medical appointments, and that he would have incurred fuel expenses in doing so. However there is no substantiation of his estimated losses of $100,000 which I find to be grossly over-estimated. To my mind, an economic loss must be quantified, and supported by credible evidence in order to be found to have been incurred.

The burden is on Mr. B. to demonstrate he has suffered an economic loss in providing attendant care services to the Applicant. He has not done so.

Mrs. B.

Mrs. B. did not testify at the hearing. According to the Applicant her mother began to feel unwell in the summer of 2012. Although nothing wrong was found medically she progressively declined. She alluded to her mother possibly having Alzheimers "or something". She indicated that her mother no longer drove and "was not the same". The Applicant testified that her mother helped her with grooming, including showering, bathing and changing her clothing. Immediately after the accident, when the Applicant was most acutely impaired, her parents would assist her out of the chair and place ice packs on her.

Mr. B. testified that his wife was working in real estate. Her income tax returns¹³ show the following:

Tax Year	Total Income	Pension, Investment, Rental Income	Income from Self-Employment
2009	$44,824.67	$46,221.42	-$1,396.75
2010	No Information	No Information	No Information
2011	$20,303.11	$23,110.38	-$2,807.27
2012	$19,999.98	$21,503.73	-$1,503.75

No information as to Mrs. B.'s income for the year 2010 was provided. The accident occurred less than 3 weeks before the end of 2010. One would expect Mrs. B.'s income to have declined in 2011, due to her attending to her daughter and indeed her income did decline when compared to her 2009 income. However, on closer inspection, the reason for the decline in her income was due to a dramatic reduction in an "elected split pension" declared and a decline in rental income received. While it is true she suffered a greater business loss in 2011 than she did in 2009, examination of the Statement of Business and Professional Activities attached to her return shows the increased loss was due to the declaration of a capital cost allowance in that year and a slight increase in other expenses. Business revenue for each year reported was "nil". It therefore cannot be said that any of the economic loss incurred by Mrs. B. was due to a decline in business revenue as the result of providing the goods or services to the Applicant. The economic loss was due to a reduced elected split pension amount and an increase in declared business expenses. It was not "as a result of providing goods and services" as required by the Schedule.

The Applicant's sister, M.B.

M.B. works full-time. She testified that, immediately after the accident, she attended at her parents' home almost everyday, did some clean-up after meals and occasional laundry. She also chauffeured the Applicant's daughter and helped her with her homework "maybe a couple of times a week". In her written statement, she said that she spent 10 hours per week at her parents' address.¹⁴

M.B. testified that she took some time off from her employment to assist the Applicant. She described it as "comp time", or overtime that she had banked. When asked if she incurred any expenses, she referred to the cost of gas in driving the Applicant's daughter. I was provided with M.B.'s credit card statements covering the period December 2010 to December 2012.¹⁵ They show gas purchases in varying amounts. When asked if these represented the gas bills in chauffeuring the Applicant's daughter, she replied "could be". However, there is no differentiation between what portion of this bill would relate to transporting the Applicant's daughter and what portion relates to trips made for other purposes. M.B. admitted on cross-examination that she could not parse out what was spent on driving the Applicant's daughter.

I was also provided with the Absence Balance Reports of M.B.'s employer for the years 2009, 2010 and 2011.¹⁶ No "comp" time was taken after the date of the accident in 2010. Approximately 33 hours of "comp" time was taken by M.B. in 2011. Even if I were to assume that all this time was taken to assist the Applicant, this does not represent an economic loss to M.B. It is simply time off given to her in lieu of extra hours worked by her. The loss would simply be the loss of an activity M.B. might have pursued had she not been attending to the Applicant. This cannot be said to be an economic loss.

As is the case with the Applicant's parents, M.B. has not demonstrated a quantifiable economic loss in assisting the Applicant or her daughter.

I find the attendant care benefits claimed by the Applicant for services provided by her parents and her sister were not incurred by the Applicant in that her parents and sister did not demonstrate a quantifiable economic loss in doing so.

Cleaning staff hired by the applicant's parents

The Applicant testified that cleaners hired by her parents would occasionally assist her with showering and washing her hair. However there was no evidence provided as to the length of time spent on this activity or how frequently it occurred. There was no reference to attendant care activities in the invoices provided by outside cleaners, as detailed below. As stated above, I cannot find an economic loss occurred where the loss has not been quantified.

Housekeeping Benefits

Section 23 of the Schedule provides that the insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of the insured person for housekeeping and home maintenance services if as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

There is no evidence that the Applicant is catastrophically impaired. However, as stated earlier, at the time of the accident the Applicant was covered by a transitional policy. Section 68 of the Schedule specifically provides for the continuation of some benefits in a transitional policy including those described in Subsection 28(1)2 which provides for a housekeeping and home maintenance benefit payable in the circumstances described in section 23 even if the impairment sustained by the insured person is not a catastrophic impairment, but not for expenses incurred more than 104 weeks after the onset of the disability.

At the time of the accident the Applicant was living in her parents' home with her daughter. They were occupying two bedrooms and sharing a bathroom. She testified that she was cleaning the areas that she and her daughter occupied in her parents' home, doing laundry, making meals for her daughter and herself, sometimes making meals for the entire family and occasionally assisting her parents with household chores and accompanying them to medical appointments.

As stated earlier, both the Applicant and her father testified that prior to the accident the Applicant's parents had a cleaning person who came to the home for approximately seven hours every two or three weeks. The Applicant indicated that the cleaning person did the vacuuming before the accident. Both testified that after the accident the Applicant's parents increased the frequency of visits by the hired cleaners to once or twice per week.

Kathleen Dougall of Vista Disability Management performed an in-home assessment of the Applicant's housekeeping and attendant care needs on December 22, 2010. In the Form 1 completed by her, she estimated the Applicant required 10 hours of housekeeping assistance per week.¹⁷

Invoices for housekeeping

Included in the documentary evidence are invoices for housekeeping services.¹⁸ There are invoices from Mr. and Mrs. B. for 10 hours of housekeeping per week from December 12, 2010 to March 6, 2011 and 14 hours of housekeeping per week from March 7, 2011 to June 26, 2011. After that, the invoices indicate that an individual named Asli Taskin performed 14 hours of housekeeping services per week at the rate of $11 per hour until July 22, 2012 with the exception of the period May 1 to 27, 2012 when Adelia Maria performed these services. All of the invoices show $440 claimed for a four week period which does not accord with 14 hours per week at the rate of $11 per hour.

None of the outside service providers testified.

As noted above, the "incurred" provisions of the Schedule apply and "non-professional" cleaners, such as Mr. and Mrs. B., would have to demonstrate an economic loss in order for the Applicant to receive benefits for their services. They have not demonstrated that they suffered an economic loss and therefore their services are not compensable.

However, expenses are deemed to be incurred when the person who provided the goods or services does so in the course of his or her regular occupation or profession. While I have no direct evidence that the cleaners hired by the Applicant's parents were cleaners by profession, I think it is safe to assume that they were. The question then becomes whether and for how long the Applicant was substantially unable to perform housekeeping and home maintenance tasks she normally did prior to the accident and to what degree the services provided by the professional cleaners were reasonable and necessary. As well, I must bear in mind that the section speaks of "additional" services, those above and beyond what was in place before the accident.

I accept the Applicant's evidence that immediately after the accident she was in severe pain and was very limited in her functionality and required assistance with the most basic aspects of self-care. Her treating chiropractor, Dr. Behar, testified that he treated her at her parents' home immediately after the accident and that she could not get out of a chair or off the couch without assistance.

However, I have no documentary evidence substantiating the hiring of professional or outside housecleaners prior to June 27, 2011 or beyond July 22, 2012. Therefore I can only consider the period between those two dates as being compensable.

There is little documentary medical evidence before December 2011.

In her testimony, the Applicant indicated that by December 2011 she was able to do light housekeeping. It was at that time that she was assessed by Dr. Oshidari, a physiatrist.¹⁹ In his opinion, the Applicant had experienced soft tissue injury with contusion that had exacerbated her pre-existing medical condition. He found no active tendonitis or bursitis around the shoulders or pelvic girdle area. He found no cervical thoracolumbar radiculopathy or cervical thoraco myelopathy. In his opinion she did not suffer a substantial inability to perform caregiving or housekeeping and home maintenance activities. That is in fact a legal question and not within Dr. Oshidari's purview. On cross-examination Dr. Oshidari discounted the opinions of other specialists, including those who later found the Applicant to be suffering from chronic pain.

Ms. Lee Birbrager, Occupational Therapist assessed the Applicant on February 9, 2012.²⁰ Ms. Birbrager found the Applicant to be not substantially disabled in performing her caregiving, housekeeping and personal care tasks. In her report however, Ms. Birbrager noted that the Applicant reported varying hip, neck, shoulder, upper back and mid back pain, depending on the type of task she was demonstrating.

The Applicant told both Dr. Oshidari and Dr. Rubenstein, a psychologist, that her physical condition had improved about 30% since the accident. In her testimony the Applicant indicated that by December 2012 she could pick up clothes but she couldn't change bed linens. She stated that she couldn't hang or sort clothes.

I have little other medical evidence contemporaneous with the period in question, being June 2011 to July 2012.

The Applicant saw several specialists in 2013. Dr. Bhalerao, a psychiatrist at St. Michael's Hospital, in his report of September 10, 2013, diagnosed the Applicant with a mild to moderate neurocognitive disorder. He testified that this could have an impact on the Applicant's functional status including her ability to function in the areas of caregiving, personal care and housekeeping. When asked for specifics he stated that forgetfulness would interfere with the Applicant's ability to function and would make it difficult for her to multi-task. Dr. Bhalerao did not produce a curriculum vitae and was not qualified as an expert at this hearing.

The Applicant consulted Dr. Margittai, a psychiatrist, in April 2013. Dr. Margittai testified that she suspects that the Applicant sustained a closed head injury in the accident and that the Applicant's complaints of problems with focussing, finding words and memory are the result of the accident.

Dr. Margittai recommended that the Applicant undergo full neuropsychiatric testing. A neuropsychology assessment done on November 5 and 8, 2013, at Toronto Rehab, indicates that the Applicant has no brain-based impairment.²¹

Included in the documentary evidence is a report by Dr. Slegr, neurologist, dated March 14, 2013.²² Dr. Slegr administered the Montreal Cognitive Assessment Test of the Applicant. The Applicant scored well within the normal range. It was Dr. Slegr's opinion that the Applicant's cognitive complaints were the result of stress and depression which Dr. Slegr attributed to the accident, within the context of a history of fibromyalgia and a vulnerability to depression. She felt that there was nothing to be gained by "neuroimaging" which I take to mean a CAT scan.

I find the Applicant to have been substantially disabled from her housekeeping and home maintenance tasks until the date of Ms. Birbrager's assessment being February 9, 2012. After that it is more questionable whether the Applicant is actually substantially disabled. It was Ms. Birbrager's opinion that the Applicant could perform her housekeeping duties, albeit with the aid of assistive devices and with pain. It should be noted however that the Applicant suffered from so much pain that the initial assessment that took place in December 2011 had to be discontinued.

On the other hand, at the time of the accident, the Applicant was not engaged in extensive household duties. As stated earlier, her cleaning tasks were mostly confined to the two bedrooms and bathroom she and her daughter occupied with some assistance given to her parents in the common areas of the home. Vacuuming was done by cleaning personnel. There is no evidence that the Applicant was responsible for any home maintenance tasks.

I do not accept Dr. Margattai's evidence that the Applicant suffered a brain injury as a result of the accident. She described her finding as a "suspicion". I cannot make a finding on the basis of a suspicion. Dr. Margattai recommended a neuropsychology test. The result of that test was that the Applicant suffered no brain-based impairment. Likewise Dr. Slegr found no evidence of any significant cognitive difficulties beyond the Applicant's complaints. Even if I am wrong and the Applicant suffers from neurocognitive difficulties, I have difficulty believing that they would substantially interfere with her ability to do housekeeping tasks. They might result in the Applicant having to pace herself but I cannot see how they would impair her to a substantial degree.

The invoices submitted provide for 14 hours per week of housekeeping including vacuuming, garbage removal, dusting, laundry, mopping, dishwashing and cleaning bathrooms. There is no distinction drawn between what was done for the Applicant and what was done for her parents. The Schedule speaks of "reasonable and necessary expenses incurred by or on behalf of an insured person" and that the insured person has sustained an impairment that "results in a substantial inability to perform the housekeeping and home maintenance services he or she normally performed before the accident". Both the Applicant and her father testified that hired housekeeping assistance increased by at the least a factor of four after the accident. I cannot accept that the increase was solely to replace the relatively modest amount of housekeeping previously done by the Applicant. I find that a portion of the increased housekeeping was due to increased housekeeping needs of the parents, who were now more occupied with providing attendant care for the Applicant and caregiving to their grandchild. I am prepared to find that 50% of the invoiced housekeeping hours were devoted to the replacement of tasks previously performed by the Applicant. I therefore allot $77 for housekeeping per week (seven hours at the rate of $11 per hour) for the period June 27, 2011 to February 9, 2012. I am prepared to give Ms. Birbrager's report some weight as evidence that the Applicant had some capacity for housekeeping tasks, as of February 9, 2012, certainly more than she did immediately following the accident. At the same time I accept that she was still limited by pain and that some tasks, such as changing bed linens, or strenuous or heavy activity was still off limits for her. I therefore find that housekeeping assistance in the amount of four hours or $44 per week for the period February 10, 2012 to July 22, 2012 was reasonable and necessary.

CAREGIVER BENEFITS

Section 13 of the Schedule provides that the insurer shall pay a caregiver benefit to or for an insured person who sustains a catastrophic impairment as a result of an accident if, as a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she was engaged at the time of the accident and that at the time of the accident, the insured person was residing with a person in need of care and was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities. The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care, but shall not exceed $250 per week for the first person in need of care.

As with Housekeeping Benefits described above, section 68 of the Schedule provides for the continuation of certain benefits under a transitional policy, and section 28(1)(2)(i) removes the requirement that an insured be catastrophically impaired.

At the time of the accident the Applicant's daughter, N.B, was 12 years of age, was residing with the Applicant and the Applicant was her primary caregiver.

Prior to the accident the Applicant testified that she cooked and cleaned for her daughter, drove her to and from school and other activities. She testified that she read to her daughter at night and brushed her hair. She testified her daughter has a learning disability and that she learned of this in 2003, when her daughter would have been five years old. Later she stated she learned of her daughter's learning disability when she was in Grade 3. She stated that it was not specifically labelled dyslexia but she described it as difficulty in reading, decoding and spelling. Before the accident she would work with her daughter on spelling and quiz her in preparation for tests. She would check her homework for errors. She estimated she would help her daughter two times per week for an hour or two at a time.

The Applicant testified that after the accident she couldn't focus and that she "didn't have the head space" to figure out her daughter's school work and assist her with it. The Applicant testified that she became dizzy and nauseous when she tried to read to her in bed or watch television with her. She stated that her daughter "kind of moved away". In an undated letter to Dr. Naiman,²³ her family doctor, apparently written approximately two years after the accident, (as the daughter is described as having recently turned 14), the Applicant describes her daughter's hostility and alienation from her which she attributes to the accident and her subsequent inability to work.

The Applicant testified that after the accident her daughter developed anxiety issues. The Applicant testified that her daughter presently has some accommodation with regard to school assignments and taking examinations.

Included in the documentary evidence are invoices from Mr. and Mrs. B. indicating they provided caregiving services to the Applicant for the period April 4, 2011 to July 22, 2012, five to seven hours per day at the rate of $11 per hour.²⁴

The Applicant testified that her sister, M.B., came to the house almost every day in the period immediately following the accident and later, once or twice per week. She assisted the Applicant's daughter with her homework and chauffeured her on weekends. The Applicant admitted that she didn't really keep track of how frequently the sister came by to help.

I accept the Applicant's evidence that, for an indeterminate period after the accident, she was substantially unable to care for her daughter, and that her parents and her sister assisted her in this regard. However, as with the claims for attendant care and housekeeping, caregiving expenses must meet the definition of "incurred" as set out in the Schedule. If the service providers are not professionals, they must demonstrate that they have suffered an economic loss in order for an insured to claim the benefit. As found earlier in this decision, neither the Applicant's parents, nor her sister have demonstrated that they have suffered a quantifiable economic loss as a result of providing services to the Applicant. The Applicant's claim for caregiving benefits is therefore denied.

Interest

The Applicant claims interest on overdue payments. Security National takes the position that any interest payable shall be paid in accordance with section 51 of the 2010 Schedule.

Consistent with my reasoning with regard to the application of the "incurred" definition, I find that the interest rate of 1% per month, as provided in the 2010 Schedule is payable on the benefits that I have found to be due and owing.

Expenses

When assessing expenses, arbitrators at FSCO determine entitlement and quantum by applying criteria dictated by the legislation.²⁵

The parties did not make submissions as to expenses. If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding either party may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.

Special Award

Counsel did not make submissions with regard to a Special Award. If the Applicant's counsel wishes to make submissions regarding a Special Award, she may contact the Case Administrator to arrange for a date for oral argument, or to set deadlines for written submissions in this regard.

January 16, 2015

Stuart J. Mutch Arbitrator

ARBITRATION ORDER

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

The Applicant is not entitled to Attendant Care Benefits.
The Applicant is entitled to Housekeeping and Home Maintenance expenses in the amount of $77 per week from June 27, 2011 to February 9, 2012 and $44 per week from February 10, 2012 to July 22, 2012.
The Applicant is not entitled to a Caregiver Benefit.
If the parties cannot agree on expenses, they may make submissions.
The parties may make submissions regarding a Special Award.