December 13, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Fred Sampliner
Date of Decision: November 16, 2012
J.K. and Wawanesa Mutual Insurance Company agree that he sustained catastrophic injuries in a serious motor vehicle accident on August 13, 2008. The parties’ dispute about the amount of J.K.’s attendant care benefits under section 16 of the Schedule was not resolved through mediation, and the evidence was presented at an arbitration hearing at the Financial Services Commission of Ontario under the Insurance Act.
The issues in this hearing are:
What is the monthly amount of J.K.’s attendant care benefit?
Is J.K. entitled to interest on any overdue benefits?
Is either party entitled to their expenses of the arbitration?
J.K. is entitled to $6,000 per month in attendant care benefits from April 1, 2009 to March 31, 2011, less Wawanesa’s payments, and entitled to $2,132 per month in attendant care benefits ongoing thereafter.
J.K. is entitled to interest on overdue amounts under the Schedule.
The issue of the parties’ claims for their expenses of the arbitration is deferred.
EVIDENCE AND ANALYSIS:
J.K. was 24 years old, living at his father and stepmother’s residence in the town of Pefferlaw, Ontario at the time of the August 13, 2008 accident. He had been working various physical labour jobs since dropping out of high school. His last work was as a gas technician until his layoff in January 2008. There is no dispute that J.K. was physically healthy, enjoyed outdoor life, socializing with friends, took care of all his personal needs and helped his father with household projects before the accident.
On August 13, 2008, J.K.’s vehicle was struck on the passenger side by a pickup truck travelling at high speed. He was knocked unconscious, sustained a severe head injury and remained in a coma for many days after the accident. J.K. measured 8 on the Glasgow Coma Scale.
J.K. was almost immediately evacuated by air ambulance to St. Michael’s Hospital in Toronto, where he underwent surgery. Medical records indicate he had significant periods of pre-accident and post-accident amnesia. In September 2008, J.K. was sent to St. John’s Rehabilitation Hospital still wearing the halo guard that restricted his neck/shoulder and facial movements. This was removed in November 2008 and replaced with a neck collar for three months. His nose and facial scars were later repaired with plastic surgery. In early December 2008, J.K. was transferred to the neuro-rehabilitation program at Toronto Rehabilitation Institute (“TRI”), where he remained until released to his parents just before Christmas 2008.
Wawanesa does not dispute the severity of J.K.’s physical injuries from the accident. He suffered spinal fractures, facial fractures, fractured shoulder blade, separated shoulder joint and broken ribs that punctured his lungs. There is also no dispute that J.K.’s traumatic brain injury from the accident left him periodically depressed, moody, easily frustrated, with decreased attention and some ongoing memory problems.
Wawanesa agrees J.K. meets the Schedule’s criteria for a catastrophic impairment resulting from the accident, increasing his available coverage for the services of an attendant from $3,000 to $6,000 per month. The crux of the parties’ dispute concerns the means and extent of J.K.’s supervision needs during the last four years since the accident.
Wawanesa’s payments for J.K.’s attendant care reflect its view of his progressive independence from 24/7 supervisory care. Initially, the Company paid J.K. the maximum $6,000 per month from September 2008 through March 2009. Payments for his attendant care were reduced to $3,000 per month from April 2009 through July 2009, and have thereafter been continuously paid at $2,132 per month based on the opinions of Wawanesa’s occupational therapists.
J.K. claims he requires 24/7 supervision since the accident and is entitled to $6,000 per month based on his health care evidence. In order to qualify for this amount, he must establish his entitlement based on a balance of probabilities. The evidence consists of reports and testimony from the occupational therapists, J.K.’s health care records, the testimony of J.K., Melissa (his girlfriend), J.K.’s father and J.K.’s social worker.
Wawanesa argues that J.K.’s attendant care needs were precipitated by traffic charges that were filed against him as a result of the accident and/or by his pre-accident drug use. J.K. does not deny he smoked marijuana, occasionally used cocaine and drank alcohol while partying with male friends on weekends before the accident. Post-accident, he admits abusing prescription pain narcotics beginning November 2008, smoking an ounce of pot a week and becoming a more frequent cocaine user. J.K. testified that his drug abuse became more serious after he was charged with dangerous driving causing serious bodily harm from the accident during the 2009/2010 winter.
Wawanesa maintains that the traffic charges intervened as a major precipitating factor in J.K.’s serious narcotics abuse and increased his need for attendant care, unconnected to the accident itself. However, this argument is seriously undermined by J.K.’s evidence that he began abusing prescription oxycodone and smoking marijuana more frequently to deal with his accident-related pain, anxiety and depression in November 2008, well before the traffic charges were laid against him.
J.K.’s testimony is that his casual weekend drug habits before the accident did not interfere with his work, family or recreation. His and his family’s testimony clearly distinguish his pre-accident functionality from his addictive and destructive drug use beginning in November 2008. This evidence is not contradicted by other facts or expert opinion.
The Arbitrator did not accept Wawanesa’s contention that J.K.’s situation is different from the McMichael and Belair Insurance Company Inc. case. In McMichael, the no-fault insurer was found responsible to pay benefits for a man who was a fully functional drug abuser before the accident because he significantly changed to a disfunctional crack cocaine addict after the accident.
Based on the established facts, the Arbitrator rejected Wawanesa’s contention that the traffic charges precipitated or significantly contributed to J.K.’s drug abuse and increased attendant care needs. The Arbitrator found that J.K. used alcohol and drugs recreationally on weekends before the accident and that his serious and regular narcotic abuse began in November 2008 as a result of the accident.
J.K. said the one month residential drug rehabilitation program in 2010 changed his serious drug habits. He has had about four relapses with cocaine since the rehabilitation program ended, but his evidence, corroborated by other family members, is that he stopped regularly abusing narcotics since the drug rehabilitation program. He admits he continues to smoke marijuana.
A personal support worker cared for J.K. at his family’s home from his December 2008 hospital release until March 2009. J.K.’s step-mom, a working registered nurse, came home after 5 pm to cook meals and care for him along with his father. J.K. had physical therapy, speech therapy, computer instruction, counseling and an exercise program.
In his evidence, J.K. created a picture of his life after he returned home from hospital. He could maintain focus on a task for about 15 minutes in 2009. He watched TV most of the day. J.K. said he would not eat, dress or wash unless someone cued or assisted him, but testified he could make tea on his own. The family sometimes left him alone for up to two hours, but someone always took him to appointments. J.K. admits he was depressed, angry, irritable and self-pitying.
J.K.’s testimony is supported by the health care evidence that he initially suffered reduced motivation, memory, concentration, information processing and ability to cope. J.K.’s parents did not know he was abusing cocaine and oxycodone early on, but the family was nonetheless concerned about his safety in 2009, especially after he once left the kitchen with the stove on. Neighbours and relatives stopped by the family home to monitor J.K.’s condition once his dad resumed his regular outdoor work in the spring of 2009. The evidence from J.K.’s early period at home indicates he was unkempt, did not eat proper meals, slept poorly and sometimes wandered aimlessly at night.
In September 2009, J.K. began what has turned out to be a long-term relationship with Melissa. Melissa moved into J.K.’s bedroom at the family residence in March/April 2010. J.K. testified that visits from neighbours and relatives virtually ceased, and that Melissa took care of him full-time after she moved into his home.
J.K. described Melissa’s key supportive role in his life since her 2010 move-in. He maintains that Melissa’s personal care, telephone/text messages and conversation with others in his support circle maintain his mood control and enable him to perform routine activities.
J.K. stated he functions better since receiving a Blackberry device in 2009, and that the reminders and supportive telephone/text contact with Melissa, his social worker and parents encourage him to dress, perform hygiene, eat regular meals, keep appointments and calm his moodiness. J.K. admits the cueing system and support by smart phone has worked for him.
Melissa’s evidence provides additional detail about the history of J.K.’s moodiness and frustration. She testified he has been unable to initiate activities since they met, but she could leave J.K. occasionally with another family member or alone for short periods in 2010. Melissa describes J.K. as assisting with some meal preparation, but no other housework. They lead a quiet social routine, characterized by family visits, walks, shopping and home movies. Melissa is of the view that J.K.’s anger and assistance needs have not changed overall since her 2010 move‑in.
The evidence of J.K.’s father similarly confirms that his son’s problems required almost constant supervision in 2009. He frequently clashed with his son, and the family did not leave him alone for long. J.K.’s father emphasized that Melissa’s presence calmed and motivated his son, particularly after she moved into the home in early 2010. He began to help Melissa prepare meals/cleanup and was able to eat on his own. J.K.’s father agrees with Melissa that his son’s anger and memory problems remained about the same in 2010.
The evidence of Ms. Noha George, J.K.’s social worker, is consistent with these three witnesses. She describes J.K. as quite volatile when she first assessed him in August 2009, agreeing he was more responsive to anger/frustration management once Melissa entered his life. Ms. George’s opinion is that J.K.’s support needs are unpredictable without Melissa’s constant social support, but that it consumes a great deal of her time.
J.K. spent April 2010 in residence at the Neurologic Rehabilitation Institute of Ontario (“NRIO”) with the aim to improve his living skills. His moodiness was unchanged, but he could perform some daily activities with coaching. The instances detailing J.K.’s emotional outbursts, cueing needs for his personal hygiene/cleanliness and his reliance on quickly prepared snack foods highlights his lack of independence. The 2010 NRIO report independently confirms J.K.’s problems with executive function in motivation, initiation, planning, follow through, judgment and insight.
J.K.’s experience after NRIO reveals he had a serious confrontation with Melissa. Hospital records report J.K. heard voices telling him to kill her. The crisis team report mentions his drug abuse during this hallucinatory episode. J.K.’s month-long residential drug rehabilitation program early that summer confirms the seriousness of his continuing drug abuse in 2010. The evidence is that J.K.’s drug habits have been relatively well controlled since mid-2010 through his regular attendance at Narcotics Anonymous, although with occasional brief relapses.
In June 2010, Melissa began weekend employment at a group home for girls, and J.K. was no longer complaining of significant physical pain in the latter half of 2010. The fall of 2010 saw J.K. commence courses to complete his high school education, and he graduated in early 2011.
Melissa and J.K. were having serious disagreements in 2011, and she moved to her parents’ home in March. The following month Melissa started a new job in Barrie as a part-time child care worker.
However, the couple resumed living together in September 2011 when Melissa’s job offered her full-time employment. J.K. started courses at Georgian College towards certification as a gas technician, and the school provides accommodation for J.K.’s learning disability.
J.K. maintains weekly appointments with an occupational therapist, speech pathologist, chiropractor, massage therapist and every two or three weeks he meets with his social worker. The couple’s living situation remained relatively stable through the latter half of 2011.
Since September 2011, Melissa has worked full-time weekdays, while J.K. stays at home alone in their apartment or attends appointments. He uses his Blackberry to communicate frequently to his support circle during Melissa’s absence. Melissa takes him to college classes three nights a week, (including Saturdays), and drives him to several Narcotics Anonymous meetings during weekday evenings.
Melissa testified she has not been personally present for J.K.’s care during her employment, 15 to 18 hours/day on weekends from June to October 2010 or during her full-time weekday job since September 2011, leaving at 8:15 am and arriving home around 4 pm. Melissa estimates that the total telephone/text time to remind J.K. to wake-up, have meals/medication, attend appointments, and to deal with his mood swings at two hours per week. He can do his college homework alone, but he gets frustrated easily. Melissa states she regularly comforts J.K.’s nightmares for one hour, 3 or 4 times a week. Her time to console J.K. increases when he has a drug relapse, depressive episode or an outburst.
J.K.’s father states they keep in close touch to deal with his son’s frustration since his move to Barrie in September 2011, agreeing that the drug rehabilitation program and narcotics support group meetings have proven effective.
Melissa’s admission that J.K. can be left alone for 8 hours during weekdays and can accomplish his homework are significant indicators of his independence in the latter portion of 2011. While Ms. George is concerned that Melissa’s telephone support consumes too much work time and attention, she agrees that the current cueing support system works reasonably well while they are separated.
The Attendant Care Assessments:
Two occupational therapists evaluated J.K.’s attendant care needs for Wawanesa. Ms. SS was the first to evaluate J.K.’s personal care needs in September 2008, but she failed to observe that J.K. had cognitive deficits. Her recommendation for 24 hour supervisory care was based on J.K.’s reduced physical balance, mobility problems in his early recovery period. On Ms. Ms. SS’s second home visit in January 2009, she recommended minimal hygiene assistance.
In her evidence, Ms. Ms. SS agreed she had access to the TRI discharge report that identified his difficulty with information processing, attention deficit and reduced insight. Ms. Ms. SS’s failure to consider TRI’s unchallenged opinion that J.K. was at personal risk due to these problems together with her admission she saw he was moody and angry greatly undermines the value of her opinion. I give little weight to Ms. Ms. SS’s evidence.
Wawanesa’s second occupational therapist did not dismiss J.K.’s supervisory needs in April 2009. Ms. LZ concluded that J.K. needed 7 hours daily general supervision for night time care, in addition to meal preparation and modest hygiene/grooming assistance. Ms. LZ re-evaluated J.K.’s situation in February 2010, slightly reducing his cues for grooming and personal care, remaining with her previous recommendation for 7 hours general supervision. Wawanesa did not implement Ms. LZ’s second opinion, and continued to pay in accordance with her initial $2,132/month recommendation.
Ms. LZ testified J.K. demonstrated no cognitive deficits or unpredictable behaviour requiring around the clock care. She points to the August 2009 report from St. Michael’s Hospital head injury clinic recommending restoration of J.K.’s driving licence to indicate he had recovered his cognitive function. She found that J.K. appropriately responded to her questions, and his psychological records showed no psychological disorder that presented a safety risk. J.K. showed reasonable precaution by not swimming alone, obeying his family’s instruction to refrain from using the stove after the near fire incident and calling his support group to reach for help.
Ms. LZ admits she did not know about J.K.’s drug abuse, his failure at the NRIO program or his wandering because these problems were either not reported to her or had not occurred. She agrees the wandering and drug abuse are unpredictable risks worth considering in assessing supervision needs.
Ms. LZ’s admission that J.K.’s unpredictable behaviour should be considered in determining supervisory care is important concerning her reference to the Ontario Society of Occupational Therapists publication:
2) For those clients with cognitive limitations, consideration of the need for attendant care services to provide ongoing cueing and prompts in order to complete the task is important. If appropriate, the time allotted for such support should be included in each area of the Assessment of Attendant Care Needs (Form I). However, it is important to note when assessing:
If a single cue is required to initiate an activity, then the time allotted should only reflect the time to provide the cue.
If multiple cues as required throughout the entire activity, then the time allotted should reflect the times required to complete the entire activity.
If cueing can be scheduled, it may be helpful to look at the day in thirds (day/evening/night) to assist in determining the amount of times required for intermittent cueing throughout the day.
If cueing needs cannot be scheduled (ie. unpredictable) increased supervisory care may be required.
The Association’s further caution against assuming an electronic device reduces or replaces attendant care needs without evidence that the person can use it to resolve real life situations is relevant to J.K.’s situation.
The strikingly uniform evidence from J.K.’s family and social worker is that he could not operate independently and needed relatively constant supervision in 2010. Their version of J.K.’s fragile condition is corroborated by the two residential programs during the first half of 2010. The real life evidence of J.K.’s drug abuse and his lack of independence at NRIO are compelling.
Ms. LZ does not explain how J.K.’s safety could be handled through scheduled prompts through the first half of 2010, and I do not accept her opinion while J.K.’s behaviour remained unpredictable. The Arbitrator gave weight to her view that J.K.’s supervision can be handled through scheduled prompts once the risk of his drug abuse subsided based on her even-handed reflection of J.K.’s situation.
Ms. HB is an occupational therapist retained by J.K. to make treatment recommendations after she visited his home during June 2009. Although she did not formally assess attendant care, Ms. HB’s comments that J.K. needed extensive oversight to stay focused and respond to frequent upsets are consistent with the family’s evidence for this time period and the NRIO report.
Ms. HB recommended a rehabilitation coach, and Mr. HW worked with J.K. on increasing his tolerance and focus using computers and communication devices in early 2010. This led to their joint recommendation that J.K. attend the NRIO program. Ms. HB’s view that J.K. requires 24 hour supervision is partly based on his 2010 NRIO experience that he needed constant guidance and de-escalation of his impulsive outbursts.
Ms. HB testified that J.K. progressed over the ten months from her initial 2009 involvement, as he worked safely with power tools alongside his coach, his memory improved and she agreed he had not had any hazardous incidents during this period. Her refusal to speculate about J.K.’s further progress is not unreasonable based on her lack of involvement with J.K.’s treatment and condition after the NRIO program. The Arbitrator gave modest weight to her opinion he needed relatively constant prompting through the first half of 2010 based on her finding about his impulsiveness at that time.
Ms. LM is an occupational therapist who took carriage of J.K.’s treatment from July 2010. She helped J.K. complete his high school requirements and entry to Georgian College. Ms. LM testified that despite J.K.’s initial frustration, his management skills improved. Her October 2011 reports document J.K.’s continued forgetfulness, sloppiness, continual need for prompts with grooming and hygiene. Her recommendation for 24-hour supervisory care is predicated on J.K.’s emotional outbursts, inability to handle emergency situations and consequential need for emotional support.
The fundamental problem with Ms. LM’s opinion about J.K.’s supervisory care is her failure to point out a risky incident, an emergency or uncontrolled emotional outburst that was not ably handled through his current telephone access system. Her disagreement with the idea that J.K.’s current supervisory needs can be met through intermittent Blackberry use is contradicted by her agreement that “hands-on” emotional support is not necessary and his current system works well. Based on this fundamental contradiction, the Arbitrator was of the view that Ms. LM’s opinion is over-reaching and rejected it.
In Ryan and ING Insurance Company of Canada the arbitrator rejected 24/7 care based on the claimant’s earning a high school and a college diploma, her independent life from her parents and her ability to work as demonstrating she had no risk. Conversely, the arbitrator in T.N. and Personal Insurance Company of Canada accepted that the claimant’s drug and alcohol abuse and sexual escapades were risky enough to justify constant supervision, despite her resumption of household duties and part-time work. The evidence in Mr. S. and Economical Mutual Insurance Company about the claimant’s diminished physical and psychological condition after a pedestrian knock-down did not convince the Arbitrator that he was at risk without a companion because surveillance showed him independent in public.
These FSCO precedents have centered primarily on the claimant’s personal risk in determining whether 24/7 supervisory care is justified. A corollary principle is the tension of scheduling a number of supervised activities close enough that the continuum of events interferes with the supervisor’s normal life.
It was the Arbitrator’s view that the assessment of the need for supervisory care should exclude attendant care services that can be quantified under other categories and then:
Evaluate the applicant’s current safety risk using a historical perspective;
Compare the reasonably effective methods to contain and/or reduce safety risks;
Determine the frequency and time estimates for supervisory services in conjunction with other attendant care;
Relate the estimates to the need for continuity of supervision
The evidence is uncontradicted that J.K.’s parents, other family and his neighbours initially remained with him for most of the time while he was convalescing at home after his hospital release. The evidence of serious risk to J.K. thereafter is supported by Melissa’s testimony that she needed to closely supervise J.K. from the time she moved into the family home, the clear evidence of his drug abuse into the early half of 2010, the 2010 NRIO report highlighting his anger and despondency, his lack of insight and inability to initiate or follow through with activities on his own, the residential drug treatment program and his hallucinatory episode where he threatened violence against Melissa in the spring of 2010.
The evidence that J.K. could be left alone for short periods up to 2 hours with his support circle in close communication with him does not outweigh the evidence that he suffered significant risk from emotional outbursts, drug abuse, his lack of initiative and poor decisions. The Arbitrator relied on Ms. HB’s opinion that J.K. required 24-hour supervision through his completion of the residential drug treatment program in June 2010.
The evidence that J.K. began regular NA attendance after the June 2010 treatment program establishes his reduced risk from drug abuse, although he had three or four short relapses. His subsequent completion of high school requirements in early 2011 and lengthy separation from Melissa until September 2011 substantiates both his improved executive function and reduced safety risk if left unsupervised for long periods. The Arbitrator relied on Ms. HB’s opinion through winter 2010/2011 on the basis that J.K. required supervision to focus on high school and remain off drugs.
There is no evidence that J.K. experienced any unsafe incidents while Melissa and he were separated from March to September 2011. The evidence that his father worked at his landscaping business during the day in spring and summer and that his mother worked as a nurse full-time weekdays establishes on balance that J.K. was alone during the daytime from April to August 2011 before he moved with Melissa to Barrie. On these facts, the Arbitrator found that J.K. has not established that he suffered serious risk while alone after April 1, 2011.
The Arbitrator found that J.K. is entitled to $6,000 per month for attendant care benefits from April 1, 2009 up through March 31, 2011, less amounts Wawanesa paid. Based on Ms. LZ’s initial attendant care recommendation, the Arbitrator found that J.K. is entitled to $2,132 per month ongoing from April 1, 2011, less amounts Wawanesa paid. The Arbitrator found that J.K. is entitled to interest on all overdue amounts in accordance with the Schedule.
The Arbitrator felt compelled to comment that it is a great credit to J.K., Melissa and his family that he was able to pull himself out of the abyss. He should be proud of his achievements, and the Arbitrator encouraged J.K. to persevere in continuing his recent success at school and in his personal life. In that respect, and the Arbitrator urged the parties to cooperatively re-examine J.K.’s needs periodically while he makes further progress.