December 07, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Richard Feldman
Date of Decision: November 8, 2013
SM was a troubled young woman who had been sexually abused at 14, stalked by her abuser, and subsequently used marihuana. She had ADD, struggled in school and had diagnosed psychological and emotional difficulties. In 2007 at the age of 18, SM moved out of her parent’s home and began receiving ODSP income support. On October 9, 2007 SM was involved in a motor vehicle accident. She was a front seat passenger in her boyfriend’s car. She was not wearing her seat belt. Their vehicle was struck head-on and SM struck her head on the windshield. After that accident, she quit school and became more reclusive. She also suffered from a depressive episode that required psychiatric treatment, including anti-depressant medication.
On June 7, 2008 she was injured seriously in a horrific, high-speed head on motor vehicle accident at the age of 19. In addition to other injuries, she suffered a fractured skull and severe traumatic brain injury. It is this second accident that the Arbitration concerns.
It is currently undisputed that SM has suffered a catastrophic impairment as a result of this 2008 accident and that she has also suffered a complete inability to carry on a normal life.
Since the accident Intact has paid for extensive treatment, rehabilitation, attendant care, housekeeping and home maintenance benefits. The insurer, Intact, now disputes SM’s continuing entitlement to attendant care and housekeeping benefits and, if she proves entitlement, the amount of those benefits that she should have received in the past and to which she is currently entitled.
Is SM entitled to attendant care benefits at the rate of $6,000.00 per month from June 7, 2008 onwards?
Is the SM entitled to weekly housekeeping and home maintenance benefits in the amount of $100.00 per week from June 7, 2008 onwards?
Is SM entitled to interest for the overdue payment of benefits?
Intact paid SM the maximum benefits of $6000 per month to SM up to April 13, 2009. SM proved on the balance of probabilities that she required 24 a day care as she cannot respond to emergencies or regulate her behavior. Her needs have not changed since the first claims were filed. She had had numerous assessments for attendant care,
The Arbitrator considered the evidence and the law SM’s need for attendant care was the result of the June 7, 2008 accident. Intact never raised the question of causation, nor explicitly reduced or denied benefits. The Arbitrator accepted the following facts:
The dispute entering mediation was one of quantum of benefits.
As of the conclusion of the hearing Intact continued to pay attendant care benefits.
As of the conclusion of the hearing Intact continued to pay non-earner benefits given that as a result of the June 7, 2008 accident, SM has suffered a complete inability to carry on a normal life.
Intact paid and continues to pay extensive medical and rehabilitation benefits for impairments sustained as a result of the June 7, 2008 accident.
All of the experts (including those retained by the Insurer) agree SM has required attendant care since the June 7, 2008 accident.
There is no evidence that she suffered a brain injury in the October 9, 2007 accident.
All witnesses who saw her both before and after this accident in 2008 note a marked negative change in her behaviour and in her ability to function. Before June 7, 2008, she was independent in most of her activities of daily living and she did not require supervision or other attendant care. Since June 7, 2008 it is undisputed that she required (and continues to require) significant attendant care, including basic supervisory care because she lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.
The only expert to give an opinion on causation, Dr. M stated SM’s pre-accident psychological problems only made her that much more vulnerable to the effects of the severe traumatic brain injury she sustained on June 7, 2008. In his opinion, the June 7, 2008 accident was the direct cause of SM’s need for attendant care.
After considering SM’s testimony and her boyfriend’s, her father’s, and Dr. M’s and numerous other treating and assessing medical practitioners and considering their reports and the other material filed the Arbitrator found that, but for the accident of June 7, 2008, SM would not require attendant care. Therefore, on a balance of probabilities, SM has proven that her need for attendant care is the result of the June 7, 2008 accident.
Intact made payments to SM which were managed in a joint account by her father who had power of attorney. The money was not paid as salary to himself and SM’s boyfriends, but was disbursed to cover the cost of living and providing a vehicle. Any surplus funds were given to SM.
Intact made it clear it required more detailed housekeeping information, but with respect to attendant care it did not advise SM of this. Ms. Q, Intact adjuster since May 2009 confirmed that, prior to this hearing, Intact had not questioned whether the attendant care expenses being claimed had been incurred nor has it asked for more information in this regard.
At the time of this accident “incurred” was considered to include situations where there was no actual payment or even promise of payment in order to prevent what the Ontario Court of Appeal has termed the absurd and unfair result that only those persons who can pay for services in advance will be allowed to recover for those services. This broad interpretation is required to prevent insurers from avoiding paying for needed services simply because an applicant is fortunate enough to have a friend or relative who is prepared to provide services whether or not there is any likelihood of compensation.
The Arbitrator was satisfied that SM has been provided with round-the-clock attendant care since the time of the accident and was therefore satisfied that these expenses have been incurred.
This dispute is over the amount of basic supervisory care reasonably required by SM. All of the experts who have assessed SM including the one retained by Intact agree that she requires basic supervisory care. The disagreement amongst the assessors is the number of hours per day that such supervision is required.
Three occupational therapists have assessed her need for attendant care. The Arbitrator preferred the conclusions of two primary therapists who concluded SM requires round-the-clock supervision due to her inability to respond to emergency situations.
The Arbitrator also observed SM and heard testimony from her father, her boyfriend and numerous health professionals who have been treating SM since the accident and found that the she cannot reliably and appropriately respond in an emergency. The Arbitrator concluded that it is reasonable SM requires 24 hour a day attendant care, and ordered Intact to pay $6000 per month.
The Arbitrator dismissed SM’s claim for weekly housekeeping and home maintenance as she refused to provide Intact with information about the services being provided to her, and details of the housekeeping and home maintenance she performed prior to the accident.