Arbitrator "Troubled" With Amounts Spent for Video Surveillance by Insurer

August 15, 2008, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator:  Judith Killoran

Decision Date:  July 18, 2008

Cynthia and Cyril Johnson were injured in motor vehicle accidents on October 24, 2004 and January 13, 2005.  They applied for and received statutory accident benefits from Allstate Insurance Company of Canada.  In both accidents their vehicle was rear-ended and they suffered injuries.

In the first accident a car hit the back of their van.  Mrs. Johnson experienced pain in her neck, back and shoulders and had a headache.  Mr. Johnson felt "torn up inside."  He had pain across his neck, shoulder and lower back.  He could only stand for short periods of time.

The Johnsons had not fully recovered from the October accident when the second accident occurred in January.  They suffered from neck, back and shoulder injuries resulting from the January accident.

Cynthia and Cyril Johnson were sixty-five and sixty-eight years old respectively, at the time of the accidents.  Mr. Johnson was retired as a security guard as was Mrs. Johnson from her previous occupation as a personal support worker.  However, both of them fostered approximately eighty children in a 4-5 year period beginning in 2002.  They fostered children for varying lengths of time ranging from one night to a number of years.

Mr. Johnson had some health problems, including diabetes and a heart condition, prior to the accidents.  Mrs. Johnson had some health problems also, mostly involving a frozen shoulder, in the year prior to the accidents.

The important issue of this case was whether the Johnsons were entitled to reimbursement for child care costs as a rehabilitation expense, and housekeeping costs associated with their responsibilities to their foster children.

Mrs. Johnson received no help with child care, housekeeping or personal care prior to the accidents.  She took care of the foster children, doing everything from bathing them, doing their laundry, and taking them to school.  She also washed dishes, dusted furniture, made beds and did the laundry.  Mr. and Mrs. Johnson were not permitted to hire any homecare or child care provider.  The arbitrator felt that $12 an hour was an appropriate amount to pay for child care and housekeeping, not $7 an hour which was the rate approved by Allstate.

Mrs. Johnson attended therapy which started a week after the first accident.  She found she could do very little not even give herself a bath.  She enlisted the help of Sonia Fletcher, Mrs. Campbell and Annemarie Johnson.  One of Mr. and Mrs. Johnson´s daughters took the children to her house until the CAS (Children´s Aid Society) could find another foster parent.  Subsequently, the CAS removed the children from the Johnson household for 2 weeks.

During the first 3 or 4 weeks after the first accident, Mrs. Johnson could not go downstairs to do the laundry, could not make the beds and relied on Mrs. Campbell to do the housework, cook for the household, make meals for the children, do laundry and lay out the children´s clothes.  After the initial 3 or 4 weeks, Mrs. Campbell came to help for gradually decreasing amounts of time as Mr. and Mrs. Johnson´s health improved slowly.  However, she continued to assist with housekeeping and child care for approximately 3 hours a day for several months.

In the second accident, on January 13, 2005, the Johnson´s van was struck in the rear.  Mrs. Johnson testified that she could not move and started crying after the collision.  Mrs. Johnson did not recover fully after the first accident and felt worse after the second accident.

Mrs. Campbell began coming to their house again for full days during a 2 to 3 week period.  Mrs. Johnson´s daughter Annemarie Johnson was also helping with the children and the household chores, primarily every weekend.  She also assisted her mother with her personal care, such as bathing and washing her hair.  The Johnsons paid Mrs. Campbell from their own funds.  They continued to receive assistance for child care after April/May of 2005 as they were still attending treatment sessions for physiotherapy, chiropractic and massage.

Mrs. Johnson testified that she needed no help with her housekeeping or child care before the first accident.  She only used Mrs. Campbell´s services when she needed to go somewhere not because of any medical difficulties.  Although Mrs. Johnson conceded she had a frozen shoulder prior to the first accident, she testified that she was fully functional before the accidents.  Although her family doctor´s clinical notes described an aching on the left side of her neck, an aching left shoulder and left wrist complaints before the accident, the arbitrator accepted Mrs. Johnson´s testimony that she was fully functional before the accidents and these were minor complaints.

The arbitrator found little merit in Allstate´s argument that because the Johnsons continued to take foster children after each accident; this confirms that they did not suffer impairments.   Rather, the arbitrator accepted the testimony of Mr. and Mrs. Johnson that they had obligations to the CAS as foster parents which included accepting up to 4 children at any given time. They managed to fulfill those pre-existing obligations by continuing to attend therapy while employing relief child care and housekeeping providers.

Mrs. Johnson´s family physician itemized her neck, back and shoulder injuries and stated that she could not look after her foster children without assistance due to her headaches, neck and back pains which were constant. He also described her limitations with housework.  It was the family physician´s opinion that the two car accidents made her neck and back condition into a chronic pain syndrome.

An orthopaedic surgeon provided to Allstate an undated report based on an assessment of Mrs. Johnson on February 4, 2005.  The surgeon concluded that she sustained an impairment as a result of the two accidents resulting in a substantial inability to provide full care to her foster children and to perform her housekeeping duties.

An occupational therapist provided to Allstate a report dated October 24, 2005.

It was the therapist´s opinion that Mrs. Johnson appeared capable of resuming her pre-accident household tasks with pacing.

All of the medical documentation supported Mrs. Johnson´s claims for housekeeping and child care assistance. To the extent the occupational therapist´s conclusions varied with Mrs. Johnson´s testimony that she required assistance past October 2005, the arbitrator preferred Mrs. Johnson´s testimony and her family physician´s report.

Mr. Johnson drove the children to school, to supervised visits with their parents, to doctors, did the grocery shopping and paid bills at the bank.  Before the first accident he cooked and drove the children.

Mr. Johnson began therapy within a week after the first accident due to his difficulties walking.  His family doctor´s records described his complaints of lower back pain on the left side prior to the accidents.  He insisted that he needed no extra help prior to the accidents. The arbitrator found that the various medical problems described in the family doctor´s clinical notes and records prior to the accidents were, as with Mrs. Johnson, nothing more than minor complaints.  In any case, they did not prevent Mr. and Mrs. Johnson from participating fully in their societal roles as foster parents in an inclusive family which included their sons and daughters, their extended families and various young children in need of foster care.

None of the surveillance undermines Mr. Johnson´s credibility or the veracity of his account concerning his level of functioning.  The arbitrator found it troubling that Allstate was prepared to expend relatively large amounts of money for surveillance of Mr. and Mrs. Johnson.  They were an elderly couple who were entirely blameless with respect to two unfortunate accidents.  They were performing important societal roles as foster parents with at risk children who depended on them and would suffer from any disruptions in their already troubled lives.

Both Mr. and Mrs. Johnson were impressive witnesses.  They were forthright and compelling when they testified. The arbitrator attached great weight to their testimony.  The arbitrator found that the services applied for by the Johnsons were reasonable and necessary to rehabilitate a family at risk. These expenses were not simply to fund child care but were for the rehabilitation of the Johnsons.  The relief child care was necessary to allow the Johnsons to both attend rehabilitation programs and integrate back into their societal roles as foster parents.

Mrs. Johnson spoke to an adjuster on October 26, 2004 and advised that she would take care of housekeeping with the assistance of her children and a friend.  Allstate forwarded, on May 6, 2005, a cheque for $1,344 for housekeeping for both Mr. and Mrs. Johnson.  The arbitrator referred back to her earlier finding that $7 an hour was not realistic as Mr. and Mrs. Johnson were limited in their choice of housekeeping providers.  Mrs. Campbell was screened and approved by the CAS.  Allstate did not pay any more housekeeping based on the occupational therapist´s report where it was advised that Mrs. Johnson was back to her full-time housekeeping.

Mr. Johnson testified that he had responsibilities in the house for cooking, washing dishes, vacuuming, cutting the lawn, and taking out the garbage.  Mrs. Johnson testified that Mr. Johnson did vacuuming, cooking, washing dishes, gardening and mowing the lawn and taking out the garbage.  He could not do any of these chores after either accident.

Mr. Johnson testified that he could perform few of his usual responsibilities after the accidents.  He tried to cut the lawn but could not do it.  He paid someone to do his regular jobs.  After the second accident, he said he began to deteriorate.  He had been getting back to normal, almost recovering but after the second accident, he felt as though he was back to "square one."

Allstate relied on an undated orthopaedic report.  The report stated that Mr. Johnson was not impaired and nothing prevented him from engaging in his housekeeping and care giving tasks.  This orthopaedic report was used by Allstate to justify benefits not paid in October 2004.   The report disclosed that Mr. Johnson had neck pain radiating on the left side to the left shoulder which was worse with turning, sleeping and driving.  It also noted lower back pain complaints localized to the lower lumbar area which were worse with sitting, standing, cleaning, getting up to an upright position, walking, or any activity.

The arbitrator found the orthopaedic report´s conclusions that Mr. Johnson did not suffer a substantial inability to perform his pre-accident care giving and housekeeping duties is not consistent with the physical findings, particularly in light of the occupational therapist.

The occupational therapist retained by Allstate, assessed Mr. Johnson´s housekeeping needs in the reports dated July 21, 2005 and September 6, 2005. The reports confirmed he needed ongoing assistance with indoor and outdoor housekeeping tasks.  However, the only payment to Mr. Johnson from Allstate was $120 for lawn cutting and snow removal.

It did not appear that Allstate communicated to the Johnsons the difficulty it had separating housekeeping from child care and its reluctance to treat child care as a rehabilitation expense.  Allstate knew prior to January 17, 2005 that the Johnsons needed help with housekeeping.  By the end of November 2004, Mrs. Johnson called and was requesting funds to pay Mrs. Campbell.  Allstate was still assuming that no housekeeping needed to be paid based on a conversation 48 hours after the first accident.

Allstate did not appear to have ever forwarded a response to Mr. Johnson´s housekeeping claims. It was conceded that better communication was needed as Mr. Johnson had no way of knowing that his housekeeping expenses had been combined with his wife´s claim.

The arbitrator found that Mr. and Mrs. Johnson had established on the balance of probabilities that the housekeeping expenses which they claimed were reasonable and necessary as a result of impairments sustained in the accidents which resulted in a substantial inability to perform the housekeeping and home maintenance services which they normally performed before the accident.

The arbitrator found that Allstate had unreasonably withheld or delayed payments for the benefits claimed by Mr. and Mrs. Johnson.  There were serious communication problems which were never addressed by the Insurer.  The arbitrator found that Allstate was harsh and high handed in its treatment of Mr. and Mrs. Johnson who were seeking a limited amount of assistance. Their claims had fit within the statutory framework.  The arbitrator considered the totality of the evidence and found that Allstate did not offer sufficient explanation or assistance to the Johnsons to fulfill its responsibilities as their first party insurer, particularly in light of their advanced years.

It was troubling that Allstate expended relatively large sums of money conducting surveillance of Mr. and Mrs. Johnson while not conducting even the most cursory investigation of their claims.  It chose to rely on inadequate medical reports and ignore those that were favourable.  It neglected to take into account the particular and unique characteristics of its insured and offered little assistance to an elderly couple who were seeking to regain their health and resume their responsibilities as foster parents.  Mr. and Mrs. Johnson filed modest claims for benefits and were met with resistance and suspicion by Allstate at a time in their lives when they were injured and vulnerable.

There was some merit to the Insurer´s argument that one of the categories, that is, the claim for child care as a rehabilitation expense, was a novel claim and the law on the question was somewhat unsettled.  However, it was certainly not the case that when the judicial review decision in G.B., restoring Arbitrator Blackman´s order, was released on January 21, 2008, Allstate paid Mr. and Mrs. Johnson for their child care expenses.

Allstate was obligated to treat with seriousness and utmost good faith the Johnsons´ claims for child care as rehabilitation expenses, together with their housekeeping claims.  This was not done.  Allstate did not communicate adequately with Mr. and Mrs. Johnson.  It ignored their very detailed descriptions of the housekeeping and child care which they required and was provided.  At no time did Allstate respond to Mr. Johnson´s claims separately from those of his wife.  Mr. Johnson summed up his anger and frustration in his testimony when he exclaimed: "Why did they put us through all of this?"

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Drunk Driving Accidents, Pain and Suffering, Physical Therapy, Treatment

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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