minicounsel

Footnotes

Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “new Schedule”) came into force. The transition rules in the new Schedule provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “old Schedule”) shall be paid under the new Schedule, but in amounts determined under the old Schedule.
Filed as Document D.
Exhibit 21.
Exhibit 20.
Available at General Documents Brief, Vol. 1, Tab C, Section 22.
Exhibit 8.
Exhibit 14.
Exhibit 14 notes, September 4 and 9, 2014.
Exhibit 19.
I have specifically used the language found at page 13 of Exhibit 18 which was part of the cross-examination of Ms. Panzalovic.
Paragraph 19.
SOR/2001-227, now repealed.
Canada v Allard, 2014 FCA 298 and subsequent decisions.
Coombe v. Constitution Insurance Co. (1980), 1980 CanLII 1715 (ON CA), 29 O.R. (2d) 729 (Ont. CA); Wawanesa v. Smith (1998), 1998 CanLII 18861 (ON CTGD), 42 O.R. (3d) 441 (Div. Ct.); Monks v. ING (2008), 2008 ONCA 269, 90 O.R. (3d) 689 (Ont. CA).
Belair Insurance Company v. McMichael (2007), 2007 CanLII 17630 (ON SCDC), 86 O.R. (3d) 68; Personal Insurance Company v. Hoang, 2014 ONSC 81 (Div. Ct.); Kennelly and Wawanesa, FSCO A99-000139, Arb. Baltman (21 January 2000).
Whyte and State Farm Mutual Automobile Insurance Company, FSCO A12-005721, Arb. Mills (24 July 2015).
Decision No 2335/06R, 2008 ONWSIAT 1890; Decision No. 2007/07, 2007 ONWSIAT 2580; Decision No. 2007/07R, 2010 ONWSIAT 1745.

Neutral Citation: 2016 ONFSCDRS 229

FSCO A15-002442

BETWEEN:

TINNA DOYON

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Arbitrator Marcel D. Mongeon

Heard: In person at Windsor, Ontario on July 5, 6, 7 and 8, 2016

Appearances:

Ms. Tinna Doyon participated

Ms. Colleen Caza participated for Ms. Tinna Doyon

Ms. Mary Renaud participated for Allstate Insurance Company of Canada

Issues:

The Applicant, Ms. Tinna Doyon, was injured in a motor vehicle accident on February 9, 2009 and sought accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Ms. Doyon, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is the Applicant entitled to Attendant Care Benefits from January 2012 to the present, less amounts received? If so, in what amount?
Is the Applicant entitled to Housekeeping and Home Maintenance Benefits from February 9, 2011 to July 8, 2014 and, if so, in what amount?
Is the Applicant entitled to payment for either marijuana growing equipment in the amount of $3,443.65 or medical marijuana for the period of June 14, 2012 to November 30, 2014 in the amount of $12,600.00, or both?
Is the Applicant entitled to interest on any payments ordered?
Is either party entitled to its expenses of the Hearing?

Result:

The Applicant is entitled to Attendant Care Benefits from September 2014 (one month before the submission of the initial Form 1) to the present in the amount of $864.00 per month. Accordingly, two additional months of Attendant Care are payable.
The Applicant is entitled to Housekeeping and Home Maintenance Benefits from February 9, 2011 to July 8, 2014 in the amount of $17,800.00.
The Applicant is entitled to payment for medical marijuana for the period of June 14, 2012 to November 30, 2014 in the amount of $12,600.00.
Interest is allowed at the rate of 2% per month, compounded monthly, on the following amounts. The Applicant is entitled to interest on the medical marijuana benefit from the date the claim was submitted to the Insurer, and on the Housekeeping and Home Maintenance Benefits from July 11, 2014. The Applicant is entitled to interest on the additional two months of Attendant Care Benefits from September 30, 2014 for one payment and October 31, 2014 for the other payment.
The Applicant is entitled to her expenses of the Hearing fixed at $6,725.00 plus applicable HST.

EVIDENCE AND ANALYSIS:

Facts

I have determined the following facts from the parties’ Agreed Statement of Facts,² the referenced documents and the live testimony provided:

General

The Applicant was born in 1970 and was 45 years old at the time of this Hearing. At the time of the motor vehicle accident, the Applicant was employed at the Windsor Casino as a valet. The Applicant was also employed as a property manager in the townhouse complex in which she lived.

After the motor vehicle accident, the Applicant returned to work at the Casino on modified duties. Eventually, the Applicant stopped working at the Casino in September 2009. The Applicant continued working as a Property Manager until December 2011.

After the accident, during 2011, the Applicant also sold jewelry at home-based jewelry parties. She ceased doing this later in 2011.

Catastrophic Impairment Determination

An OCF-19, dated November 14, 2013, was signed by psychiatrist Dr. Guscott, on behalf of the Applicant.³ The form sought a determination of catastrophic impairment on the basis of a class 4 marked impairment or a class 5 impairment due to mental or behavioural disorder (criterion 8 on the form).

By an Explanation of Benefits Form dated April 25, 2014,⁴ the Insurer determined that the Applicant “sustained a catastrophic impairment as a result of the accident.”

The nature of the Applicant’s impairment is psychological. She suffers clinical depression. The live testimony of the Applicant’s expert, Dr. Richard Guscott, and her family physician, Dr. Dale Ziter, clearly supported that the Applicant suffers from chronic pain and depression as a result of the accident.

The Applicant testified. There was also surveillance evidence presented showing the Applicant engaged in some activities that would be expected of normal or usual daily living.

Based on the evidence, as a fact, I find that the Applicant suffers from chronic pain and depression. The chronic pain and depression are sufficient that the Insurer has designated her impairments catastrophic.

Despite the catastrophic impairment designation, the Applicant is ambulatory and can function at a reduced level in daily activities. The medical evidence is clear that she is unlikely to ever be able to be employed in the future.

Below, I make further findings of fact on the Applicant’s housekeeping and home maintenance, attendant care and medical needs for marijuana under appropriately named sections.

Housekeeping and Home Maintenance

The Applicant was paid Housekeeping and Home Maintenance Benefits post-accident until January 2011. No claim was made for such benefits until a claim for Housekeeping and Home Maintenance Benefits was made by OCF-6, dated July 11, 2014, seeking $100.00 per week for housekeeping and home maintenance services from February 9, 2011 to July 8, 2014 (178 weeks), in the total amount of $17,800.00.⁵ No disability certificate was submitted with this claim.

The Insurer responded by an Explanation of Benefits, dated August 13, 2014, requesting particulars of the service provider, assistance provided, proof of payment and reason for the delay in claiming Housekeeping and Home Maintenance Benefits for the past three years.

The evidence indicated that although the Applicant had lived with her son in the past – and for a time, the son’s girlfriend as well – she currently lives alone. She has two large dogs that, in the opinion of her family physician, are useful to get her “up and moving.” This is useful as a therapy for her depression. She also has a cat.

The Applicant and the occupational therapists for both the Applicant and the Insurer gave evidence regarding the state of the Applicant’s home. As a fact, I find that the Applicant has, as a result of her chronic pain and her depression, been unable to attend to her normal housekeeping and home maintenance needs to what would be an expected level. There was general acknowledgment by both occupational therapists that the Applicant needed assistance with her housekeeping and home maintenance needs.

The Applicant submitted some receipts⁶ for actual housekeeping and home maintenance expenses. They were, in part, for payments to her son and girlfriend when they lived with her. In other cases, they were to friends for helping out.

As a fact, I find that the Applicant is substantially unable to perform her own housekeeping and home maintenance. I also find it is reasonable for the Applicant to have housekeeping and home maintenance expenses of at least the $100.00 per week maximum amount allowed by the Schedule for such expenses if those services are being provided.

Attendant Care

The Applicant did not apply for and was not paid Attendant Care Benefits within the first 104 weeks following the accident.

The Applicant applied for Attendant Care Benefits in October 2014 by a Form 1 completed by Occupational Therapist, Dijana Panzalovic. The Form 1 calculated an amount of $6,529.99/ month.⁷ The assessment was conducted by two personal visits at the beginning of September 2014.⁸

The Insurer had the Applicant’s attendant care needs assessed by its own Occupational Therapist, Serene Abraham. This assessment found the Applicant required monthly attendant care in the amount of $864.00.⁹

The Applicant has received Attendant Care Benefits in the amount of $864.00/month from November 24, 2014 to present.

The significant difference between the Applicant’s and the Insurer’s assessments deals with the possibility that the Applicant’s attendant care needs require 24 hour, 7 day per week attention.

I find the facts relevant to this issue to be the following:

The Applicant’s family physician, Dr. Dale Ziter, testified. He has attended to the Applicant since 1986. I found his testimony to be forthright and not overly advocating for his patient’s position. Dr. Ziter testified at length about the notion of whether or not the Applicant might do harm to herself.

Dr. Ziter made it clear that he has people lie to him about this type of issue. However, he had no concerns about the Applicant’s safety in her home. He also noted that he had no concerns about the Applicant continuing to have an unrestricted driver’s licence.

I also have the testimony of the Applicant’s expert, Dr. Guscott. He recalls an incident of thought of “self-immolation.” However, he had no specific details of this incident.

I note that Dr. Guscott only saw the Applicant for one appointment, and the nature of his examination was not focused on whether or not the Applicant would be a danger to herself. I also note that by his own admission, Dr. Guscott testified that if he thought that the Applicant required 24/7 care, he would have written this in his report. For the purposes of my factual determination, I have discounted Dr. Guscott’s recollection of the Applicant’s “self-immolation” on the basis that there is no other evidence to support that the Applicant ever took positive action to engage in the activity.

Serene Abraham testified as the Insurer’s occupational therapist. Although she recognized that the Applicant required some attendant care services, she did not believe that the Applicant was in any position of danger if she did not have 24 hour, 7 day per week care.

Ms. Abraham specifically reported on an incident that occurred during her in-home interview with the Applicant. In this incident, a loud noise was heard from the second floor when Ms. Abraham and the Applicant were meeting on the ground floor. Ms. Abraham noted that the Applicant quickly climbed the stairs to find the source of the noise, and returned quickly to report that it was one of the dogs which had knocked something over. On this practical evidence, Ms. Abraham sustained her opinion that the Applicant did not appear to be someone that required 24/7 care.

Dijana Panzalovic testified as the Applicant’s occupational therapist. She recalled seeing the Applicant’s home smoke detectors in the kitchen without batteries. She was concerned that if the Applicant was having a bad enough day, if there was a fire, she might just lie there. Ms. Panzalovic recognized that no other physician had formed an opinion that the Applicant required 24/7 care, but stood by her written report that it was required on her actual survey of the Applicant’s home and her lengthy interview in the context of that home.

I also have surveillance evidence of the Applicant. She is seen over a number of days engaging in what I label as “running errands” or visiting friends. In one case, the Applicant is the sole guardian of a mildly autistic girl who the Applicant takes out for ice cream.

Finally, I have the Applicant’s own evidence. I accept her evidence that she likely treats her dogs better than herself. I also accept that in the past she has had passive thoughts of not taking care of herself in a fire.

In coming to my conclusion about the facts relating to the Applicant’s need for assistance in an emergency situation, I have to rely on all of the evidence. When I consider all of this evidence, and especially the testimony of her family physician I find, as a fact, that the Applicant does not require 24/7 care.

I specifically note that I do not believe that the Applicant is unable to be physically, cognitively, behaviourally and/or emotionally self-sufficient in an emergency situation.¹⁰ On this point, I specifically prefer the expert opinion of the Insurer’s occupational therapist rather than the Applicant’s occupational therapist.

Medical Marijuana

The Applicant held a valid Authorization to Possess, issued June 14, 2012, by Health Canada. This licence expired June 14, 2013. The Applicant held a valid Personal-Use Production Licence, issued June 14, 2012, by Heath Canada. This licence also expired on June 14, 2013.

The Applicant obtained a valid Authorization to Possess and a valid Personal-Use Production Licence, both issued on August 1, 2013.

The parties included the following statement in the Agreed Statement of Facts:¹¹

The Applicant is permitted, under the terms of her license, to either grow her own marijuana or purchase the marijuana from licensed suppliers but is not permitted to do both. (my emphasis)

I note that s. 26(1)(a) of the applicable Marihuana Medical Access Regulations (“MMAR”) ¹² under which the Personal-Use Production Licence was issued, makes it clear that the Authorization to Possess goes together with the Personal-Use Production Licence. I have not determined any legal requirement that says when one is allowed to produce, one is no longer entitled to acquire from others.

The Insurer has agreed to pay for medical marijuana and/or related growing equipment that complies with the terms of the licences and the law, and has requested that the Applicant provide particulars confirming that the amounts claimed have been from licensed suppliers and in accordance with her licence.

The Applicant has obtained some of the marijuana and related equipment outside of the confines of her licences. Specifically, marijuana has been obtained from illegitimate and “grey area” suppliers. The grey area suppliers include “compassionate societies” that she purchased marijuana from in London and Toronto. I understand that the organizations exist to supply medical marijuana users, and exist in a current grey zone of regulation that has arisen as a result of the Allard¹³ decision. This decision of the Federal Court of Appeal continued the rights of people like the Applicant under their licences that had been obtained under the MMAR, until such time as the federal government brings a new system into force to make medical marijuana more easily available. I take notice that the new system is not yet in place.

The Applicant’s medical marijuana prescription was provided to her by her chronic pain specialist who did not testify. Her prescription has been recently increased.

The family physician’s testimony was that he would not provide such a prescription because marijuana is not acknowledged as being effective in any meaningful manner that he accepts. However, he did admit that, as a result of the Applicant’s usage of medical marijuana, she did not require other dependency-forming medical pharmaceuticals. He thought this was a “good sign” if the marijuana was able to let the Applicant control her pain.

As a fact, I find that the Applicant has used 4 grams of marijuana per day since her prescription. The only evidence I have as to the price of marijuana is a Health Canada invoice found in Exhibit 8, which shows $5.00 per gram for 90 grams. The Applicant’s evidence was to the effect that the Health Canada marijuana was not very potent and that she preferred the marijuana she obtained from the compassionate societies. No documentary or oral evidence was provided on the price of such supplies.

I accept as a fact the Applicant incurred expenses of $3,443.65 in obtaining her medical marijuana growing equipment.

There are 899 days between June 14, 2012 and November 30, 2014. If the Applicant used 4 grams of marijuana for each of those days at the Health Canada $5.00 per gram, that would be a total of $17,980.00. As the Applicant is only claiming $12,600.00 to November 30, 2014, I find that the amount claimed is reasonable. I accept as a fact that this is the amount that the Applicant incurred.

Assuming 30 days per month, 4 grams per day and $5.00 per gram, the Applicant would reasonably incur costs for marijuana after November 30, 2014 of $600.00 per month.

I accept as a fact that the Applicant has actually used marijuana since June 14, 2012 in the quantities prescribed and indicated.

Analysis

Incurred: Deemed or Actual; Nature of Catastrophic Impairment Determination

A challenge in dealing with the Applicant’s claims is that, with respect to Housekeeping and Home Maintenance, Attendant Care and, to some extent, medical marijuana, little or no proof was made of actual expenses incurred. The reason for this can be found in the timing of the Applicant being determined to be catastrophically impaired.

The accident was in September 2009. However, the Insurer only made a determination of catastrophic impairment almost five years later in April 2014. The determination means that, as of the date of the accident, the Applicant is entitled to benefits on the basis of catastrophic impairment. I accept the Applicant’s submissions that the Schedule is consumer protection legislation which should be given a remedial interpretation.¹⁴

For greater certainty, I find that the determination of catastrophic impairment has retroactive effect to the date of the accident. I am further supported in this decision by section 45(6) of the new Schedule which states:

If an insured person is determined to have sustained a catastrophic impairment as a result of an accident, the insured person is entitled to payment of all expenses incurred before the date of the determination and to which the insured person would otherwise be entitled to payment under this Regulation by virtue of having sustained a catastrophic impairment.

With respect to ‘after the fact’ expenses such as housekeeping and home maintenance and attendant care expenses after the time the Applicant has been determined to be catastrophically impaired, I also accept that the Insurer should not be able to benefit from the Applicant not having been paid those expenses prior to the catastrophic determination. If I were to deny such expenses, it might encourage Insurers to postpone such determinations as long as possible.

In this case, it is clear that I should be able to award “after the fact” payments even without proof that the expenses were actually incurred.¹⁵

Determination of Housekeeping and Home Maintenance Expenses

This case involves the “old Schedule” that was in effect prior to September 1, 2010. The relevant provision on housekeeping and home maintenance benefits reads:

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

(2) The amount payable under this section shall not exceed $100 per week.

(3) No payment is required under this section for expenses incurred more than 104 weeks after the onset of the disability.

(4) Subsection (3) does not apply if the insured person sustained a catastrophic impairment as a result of the accident.

As I have established in the facts, I am satisfied that the Applicant’s housekeeping and home maintenance needs are at least $100.00 per week.

I have also established in the previous section of my analysis that even though the Applicant has not established actually incurring these expenses, this was likely in part due to the delay in recognizing the Applicant as catastrophically impaired.

I also note that the Insurer had disputed that there was no Disability Certificate filed. Although this might technically be the case, as I established under the facts, it was clear that as a fact, the Applicant required assistance with the housekeeping and home maintenance. I find that this requirement was of a level where the Applicant had a substantial inability to perform the housekeeping and home maintenance tasks. This must also be deemed to go back to the time of the accident, absent any evidence to the contrary.

Based on this analysis, the Applicant is entitled to housekeeping and home maintenance expenses in the amount sought of $17,800.00 to July 8, 2014. I have not been asked to make a determination of such expenses after that date.

Determination of Attendant Care Expenses

There was a significant difference in approach between the Insurer and Applicant’s occupational therapists in preparing their Form 1s. The difference is most apparent in the summaries of Parts 1, 2 and 3. I note, in passing, that on Form 1, Parts 1, 2 and 3 delineate different pay scales. The first of these is at a rate of $11.23 per hour; the 2nd at $8.75, and the 3rd at $17.08.

The three different pay scales relate to the difficulty of the task to be accomplished: Level 1 is for some ‘light’ hands-on assistance; Level 2 is for hands-off tasks such as making meals or reminding the charge of tasks, and Level 3 is for ‘heavy’ hands-on assistance such as lifting from bed to chair and the like.

The Insurer’s therapist recommended 30.10 monthly hours in Level 1; 80.2 hours in Level 2; and no Level 3 work. The Applicant’s therapist recommended 58.14 hours in Level 1; 657.77 in Level 2; and 6.54 in Level 3.

During submissions, I asked the parties how I should choose between the different approaches. Am I entitled to pick and choose line-by-line between the Form 1s, or should I choose one Form 1 over the other? After argument, I have decided to follow the decision of Whyte and State Farm:¹⁶ it is not the Arbitrator’s task to reconstruct the Form 1. Accordingly, I will choose the approach of preferring one Form 1 over the other.

As I have shown in the facts section, I am not satisfied that the Applicant requires 24/7 Level 2 care. In addition, I am not satisfied that the Applicant requires any Level 3 care, which implies actually lifting or transferring from beds to wheelchairs or the like. I have found that the Applicant is ambulatory and functional and, within these constraints, I believe that the Insurer’s Form 1 is the more accurate statement of attendant care needs.

The appropriate Attendant Care Benefit is $864.00 per month.

On the issue of the commencement of benefits, I note that in the previously mentioned Whyte case, retroactive Attendant Care Benefits were awarded; they were warranted because there was evidence that there was attendant care as early as the Applicant had been discharged from hospital.

This case is distinguishable. Here, the Applicant is ambulatory and functional. A need for attendant care is not obvious from the evidence for the period between the accident and the completion of the first Form 1. Although I believe that the appropriate time to institute the Attendant Care Benefit is two months earlier than what was actually paid by the Insurer (the time that the Applicant made it clear she was seeking such benefits and underwent assessments in early September 2014), I have no evidence that any earlier date was warranted.

Determination of Medical Marijuana Expenses

I take notice of the fact that medical marijuana users are in a difficult position with regards to the sourcing of their supply due to the lack of a new system for marijuana. I take further notice that the current system leaves users in a regulatory hole with many suppliers operating in a “grey zone”.

I can easily deal with whether or not the Applicant should be entitled to BOTH the expenses related to growing marijuana and the expenses related to acquiring marijuana. The simple answer to this question is ‘no’. Only one expense or the other should be allowed. Common sense tells us that to pay for both is a duplication: a user needs only one or the other. Once the basic source of supply of marijuana is assured (by either growing or purchasing), an Applicant’s decision to engage in the alternate mode becomes a personal choice rather than a necessity. It is not reasonable and necessary that the Applicant should have both modes available to her.

I then need to consider whether the Applicant’s inability to produce receipts for all of the marijuana she has used operates to disallow her from collecting these amounts from the Insurer.

Although on one hand, I accept the Insurer’s need for properly incurred expenses, I also accept that there is a guide value from Health Canada as well as a prescription for a specific level of consumption by the Applicant.

I note that the Workplace Safety and Insurance Appeals Tribunal has, in a number of decisions, accepted that the Health Canada price can be used together with evidence of a specific level of consumption to order to set entitlement to a monetary benefit.¹⁷ I will adopt the same common sense approach to the issue.

In this case, I am satisfied that from June 14, 2012 to November 30, 2014, the Applicant should receive a Medical Benefit in the amount of $12,600.00, and thereafter at the rate of $600.00 per month. If at some point in the future the Applicant is able to provide the Insurer with receipts of her actual expenses, she should be able to obtain reimbursement of these expenses on that basis. In similar fashion, if the Applicant’s prescription changes, appropriate changes should be made to her benefit.

In order to satisfy the Insurer’s requirements for proof, no less frequently than once per year, the Applicant should be able to justify the medical marijuana expense to the Insurer by a simple written confirmation by her of the amounts of medical marijuana that she is consuming.

Determination of Interest

I note that the relevant interest rate under the old Schedule is 2% per month, compounding monthly.

In this case, there should be interest on the medical marijuana back to the submission of the claim to the Insurer. There will also be interest on the housekeeping and home maintenance expenses to July 11, 2014. Interest is also payable on the attendant care expenses for the months of September and October 2014 from September 30, 2014 for the first payment and October 31, 2014 on the second payment.

EXPENSES:

At the conclusion of the Hearing, the parties agreed that I should make a determination of the expenses of the Hearing without further submissions.

Section F of the Dispute Resolution Practice Code, section 282(11) of the Insurance Act and the schedule to the Automobile Insurance Regulation, R.R.O. 1990, Reg. 664, provide the criteria for the award of expenses. The first of these is a party’s “degree of success” in the outcome. In this case, other than the attendant care issue, the Applicant has had a significant degree of success.

I have also considered the other applicable criteria but find that in this case, no other criteria are applicable. Therefore, I fix the expenses in favour of the Applicant.

Given the attendant care issue which I have decided in the Insurer’s favour, I have further determined that the Applicant’s expenses will not be the full amount that would otherwise be awarded.

The Hearing lasted 4 days and I determine that there would have been at least 2 additional preparation days for the Applicant’s lawyer. I find that 10 hours per day is reasonable. The Applicant’s lawyer has advised that her Legal Aid Rate is $105.00 per hour. 60 hours at $105.00 comes to $6,300. Of this, I find that 75% should be awarded to the Applicant: $4,725.00.

The Applicant also had three expert witnesses: Dr. Guscott, Dr. Ziter and Ms. Panzalovic. Because Ms. Panzalovic’s evidence has effectively been disregarded, I am only awarding attendance fees for Drs. Guscott and Ziter. These are allowed at 5 hours each at $200.00 per hour for a total of $2,000.00.

No other expenses or disbursements of the Applicant were brought to my attention. Therefore, the total to be awarded to the Applicant for expenses will be $6,725.00, plus applicable HST.

August 31, 2016

Marcel D. Mongeon Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario