June 28, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: David Muir
Decision date: July 21, 2006
Jessica Keyes was injured in a serious pedestrian motor vehicle collision on August 21, 2003. She suffered significant head injuries including a moderate brain injury, and was found to be catastrophically impaired. She applied for and received statutory accident benefits from Personal Insurance. Personal Insurance terminated her attendant care benefits on or about May 16, 2006. Ms. Keyes brought a motion to receive interim attendant care benefits to be paid to her pending the resolution of her dispute with Personal Insurance.
The awarding of interim benefits is an exceptional remedy and is not always appropriate. It is generally accepted that to be successful the onus rests with the applicant to show, based on a summary review of the available evidence, that there is a prima facie (at first appearance; at first view, before investigation) case supporting entitlement to the benefit in question, and some urgency in the request.
Ms. Keyes relied upon the affidavit evidence of her mother; Dr. Elaine McKinnon, Pediatric Neuro-Psychologist; Ms. Ann Fitzhenry Bedard, Occupational Therapist; and Dr. Gordon Cheung, Neuro-Radiologist. Only her mother was cross-examined on her affidavit. In addition, the parties relied upon parts of the significant medical documentation created over the course of adjusting Ms. Keyes´ claims, in particular a number of reports of physicians and other treating or assessing medical professionals, as well as the reports of two attendant care DAC assessments.
Ms. Keyes was 14 at the time of the accident. She had a prior history of ADHD (attention deficit disorder accompanied by hyperactivity), and other behavioural issues but was otherwise a physically healthy child. As a result of her ADHD, Ms. Keyes struggled with her school work and was participating in an individual education plan having been identified as an exceptional pupil in need of accommodations to succeed in school. Other diagnoses were proposed and queried, including Oppositional Defiant Disorder and Asperger´s Syndrome. At the end of the academic year 2002-03, Ms. Jessica Keyes graduated with her class and would have begun high school in September.
Ms. Keyes´ mother insisted that attendant care was necessary for her daughter. She stated that her daughter required an attendant up to 24 hours per day, 7 days per week, largely because she could not be safely left alone as a consequence of the brain injuries sustained in the accident. Her brain injuries impaired her ability to self direct in many of her activities of daily living and, more importantly, to exercise proper judgment and keep herself safe in her home and community. The focus of concern was the supervision needed to keep Jessica Keyes safe in her home and community.
The clear amount of evidence, including opinions relied upon by Personal Insurance, supported the view that Ms. Keyes was potentially at risk of harm if unsupervised. It was the arbitrator´s opinion that if the numerous experts who supported her claim to attendant care as well as her mother were correct in their view of the extent and nature of Ms. Keyes´ impairments then she was at risk of harm to herself. The arbitrator found that whatever analysis was applied to the notion of urgency, a credible risk of physical or emotional/psychological harm to an applicant seeking a benefit would meet the standard. The arbitrator also found, that the loss of this benefit would impose a significant burden on the Keyes family, especially when her mother returned to work in September.
The more difficult issue in this matter was the strength of the claim that Ms. Keyes had suffered impairments as a result of the accident that merited attendant care at all. Personal Insurance suggested that there was evidence that Ms. Keyes was no more impaired after the accident than she was prior to it and therefore there was no greater need for attendant care. But the evidence offered by Ms. Keyes on the question of entitlement to attendant care was considered to be compelling. Both Ms. Fitzhenry Bedard and Dr. McKinnon concluded that Jessica Keyes needed continual supervision because of the brain injuries which she sustained in the car accident. For Ms. Fitzhenry Bedard, a treating occupational therapist, the pre-existing concerns had been exacerbated by the brain injuries sustained by Jessica Keyes to the point that she could not be safely left alone for even short periods of time.
Dr. McKinnon, a treating neuro-psychologist, was of the opinion that in an unstructured environment, the demands placed on Jessica Keyes´ limited cognitive abilities would overwhelm her and cause her to be unsafe. As she had gotten older, these demands increased and her ability to respond to emergency situations encountered in her day to day life had been compromised such that her safety was at risk. Accordingly, in Dr. McKinnon´s view, although Jessica Keyes made considerable progress in her level of functioning, most notably in her intellectual achievement, she remained at considerable risk because of her lack of insight, disinhibition and impulsiveness, all of which were traced back to the brain injuries sustained in the accident.
Her mother´s evidence was that Jessica Keyes needed constant prompting to attend to her personal needs, such as brushing her teeth, changing clothes, use of cosmetics, deodorant, etc. Her daughter also required cueing in social situations and correction in respect of the use of socially inappropriate language. Also, Ms. Keyes´ younger sister had to begin to look out for her older sister.
Prior to the accident, according to Ms. Mary Ellen Keyes, her daughter was socially mature and responsible. She could and did tidy up after herself, clean her room, baby-sit her sister, take public transit on her own and take some responsibility for meal preparation in the home. Following the car accident, Ms. Keyes was unable to do any of these things safely.
These views on Ms. Keyes´ impairments were shared by others, including a treating psychiatrist associated with the Bloorview McMillan Centre, a psychiatrist, as well as an attendant care DAC conducted in August 2004. The DAC report contained significant errors. Despite well documented concerns about Ms. Keyes´ difficulties functioning in an unstructured environment, the DAC conducted no testing of Ms. Keyes in such an environment or any environment other than her home. It might have been more accurate to describe the portion of the report that was initially released as a partial draft. It was manifestly not the same report as was issued later (an erratum report). The DAC report relied on the opinions of medical professionals that could not identify evidence that prior to the accident Ms. Keyes posed a risk to herself or others as a result of her acknowledged disabilities. Although she needed support to attend efficiently to her school work, there was no suggestion in any of the considerable medical documentation related to her that she was in need of support to function safely in her home and community.
There was very little doubt that Ms. Keyes had required significant supervision since the car accident. The reporting of her treating professionals indicated that Ms. Keyes was making progress, however there remained some concerns. The arbitrator felt that there was no reason, based on all of the material, to question in any significant way the evidence that Ms. Keyes required more supervision than was required prior to the accident. It may have been a difference of degree but that ultimately was enough to support entitlement to extensive attendant care.
The arbitrator also found that the DAC report expressly declined to consider whether or not Ms. Jessica Keyes´ noted vulnerabilities pre-accident had been exacerbated by the injuries sustained in the accident. The arbitrator considered this to be the key issue of the dispute and an issue that should have been addressed by the DAC. The arbitrator considered it "remarkable in the circumstances" that the issue was left to the courts or an arbitrator to determine. The DAC also failed to ensure that it had access to the appropriate assessment team in the circumstances. The DAC relied, to its detriment, too much on the report of Ms. Keyes and downplayed the input of her mother. In some instances, this caused them to get it entirely wrong. Lastly, the arbitrator found the tone of the DAC to be markedly partisan.
The arbitrator concluded that Ms. Keyes had made out at least a prima facie case for entitlement to attendant care benefits in some amount and for some period of time. Accordingly, an Order for interim benefits was appropriate in the circumstances.