May 20, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Maggie Murray
Decision date: May 9, 2007
Markus Haimov was injured in a motor vehicle accident on February 22, 2005. He was 67 years old at the time of the car accident. It was accepted that he sustained a catastrophic impairment as a result of a pedestrian/motor vehicle accident. He applied for and received accident benefits. However, ING did not pay any attendant care benefits. ING believed that Mr. Haimov´s attendant care needs were met by the various hospitals and the rehabilitation facility where he resided. Mr. Haimov brought a motion for the payment of attendant care benefits pending resolution of his attendant care dispute with ING.
The Statutory Accident Benefits schedule provides that the insurer is obliged to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person for services provided by an aide or attendant or services provided by a long-term care facility or chronic care hospital. In order to obtain interim benefits the Applicant (Mr. Haimov) must show that there is, upon initial review of the evidence by the arbitrator, a case supporting his entitlement to benefits and some need, necessity, urgency or irreparable harm in the request.
Evidence on behalf of Mr. Haimov was provided by his wife, daughter, an Occupational Therapist and Dr. Gillett, a neurologist. Evidence on behalf of ING was provided by an Occupational Therapist.
The evidence from Mr. Haimov´s wife and daughter was that in addition to parttime work and working in a family business, they, along with Mr. Haimov´s son, spent 24 hours a day, taking shifts on a rotating basis caring for Mr. Haimov during the night and speaking Russian to him to encourage brain activity while at Sunnybrook. The nurses taught them how to care for Mr. Haimov including suctioning and assisting with skin integrity.
Mr. Haimov was transferred to Toronto Rehabilitation Institute (TRI), a chronic care facility, from Sunnybrook Hospital. At TRI, the family was only entitled to attend between 11:00am and 9:00pm. They provided him with care throughout the time they could visit. Mr. Haimov was then transferred to Baycrest Centre for Geriatric Care, a long term care facility where he continues to reside. His family provides care between 11:00am and 9:00pm. Baycrest is supportive of family members augmenting care that staff provide. Baycrest permits 24 hour a day attendant care by family members or private nurses. However, Mr. Haimov´s family was completely exhausted in terms of ability to provide additional attendant care and financially unable to pay for private attendant care.
The attendant care provided by family members was extensive including changing his feeding bags, putting splints on his hands, washing his hands, face and mouth, monitoring oxygen levels, suctioning his tracheotomy, range of motion exercises and massaging his arms, legs and back. An Occupational Therapist report noted Mr. Haimov was more responsive when attendant care services were provided by family members who spoke Russian to him.
Of interesting note was that at Baycrest Mr. Haimov´s vital signs were not monitored electronically. Patients are provided with a device to call for assistance but Mr. Haimov was unable to operate the device due to his injuries. Mr. Haimov did in fact suffer a severe and prolonged seizure on one occasion at Baycrest and he was transported to Sunnybrook for emergency services. His family notified the nursing staff and ensured that he received prompt emergency assistance.
Several Form 1 reports were completed assessing the amount of attendant care required for Mr. Haimov. The last Form 1 assessment noted his attendant care needs at $6,337.00. The Occupational Therapist for Mr. Haimov determined that he required 24 hour per day, 7 days per week basic supervisory care assistance to ensure that he is treated immediately if he suffers another focal seizure. Dr. Gillett´s report indicated that Mr. Haimov required 24 hours a day attendant care in addition to the care provided by Baycrest. Dr. Gillett felt that the supervisory care that family members provided is crucial because it is "likely" that Mr. Haimov will suffer another seizure.
The Occupational Therapist retained by ING assessed Mr. Haimov´s attendant care needs at $154.63 per month which consisted of exercise. The OT determined that given Mr. Haimov is in a specialized unit, and under the direct care and supervision of a nurse, no additional attendant care was required for activities which fall under the responsibilities of nursing.
In providing her decision, the arbitrator noted a number of deficiencies in the Attendant Care assessment completed by ING´s Occupational Therapist. Among a number of items, there was no time allotted for a number of activities performed by Mr. Haimov´s family including washing, putting on splints, massaging hands and monitoring feeding tubes. There was also nothing alloted with respect to Mr. Haimov´s inability to respond to emergency.
The arbitrator concluded that there is a "substantial likelihood" of danger to Mr. Haimov´s life and health caused by inadequate attendant care because someone is not with him 24 hours a day. The attendant care that Mr. Haimov was receiving from his family helped ensure his safety and maintain his health by ensuring his ongoing comfort and quality of life. The evidence established a need, necessity and urgency for 24 hour a day attendant care. In addition, because it was "likely" that Mr. Haimov would suffer another seizure, there is a realistic potential that if 24 hour a day attendant care is not provided then Mr. Haimov will suffer irreparable harm. The arbitrator decided that attendant care benefits would be paid at the maximum rate.
The arbitrator accepted the evidence of Dr. Gillett, neurologist, who assessed Mr. Haimov. Dr. Gillett specialized in the treatment of persons with acquired brain injury and reviewed Mr. Haimov´s medical records, both before and after the accident and opined that Mr. Haimov was at risk of another seizure. The arbitrator also found the witnesses, including the family members, to be credible witnesses whose testimony did not display exaggeration and was not shaken upon cross-examination.
It was noted that attendant care is not a service provided by a nurse and is not an insured service under the Health Insurance Act, through the hospital or through OHIP.
The insurer took a position that any co-payments to the chronic care facilities were deductible from any attendant care benefits. However, it was noted that according to the Ministry of Health for Long Term Care a co-payment is the patient´s contribution towards accommodations and meals. The arbitrator noted that a Form 1 does not provide for assessment of any "accommodation and meal" expense as an attendant care expense. Therefore it was determined that a co-payment falls under medical benefit rather than an attendant care benefit.