September 03, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Before: Eban Bayefsky
Date of Decision: July 26, 2012
TN was catastrophically injured in a motor vehicle accident on October 29, 2000, when she was 21 years old. She applied for and received certain statutory accident benefits from Personal Insurance Company of Canada, payable under the Schedule. Personal denied TN's claim for various other benefits. The parties were unable to resolve their disputes through mediation, and TN applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
TN requested that her identity be anonymized in this decision. The Insurer consented to this request. Given the highly sensitive nature of the personal, family and medical information in this case, the Arbitrator found TN's request to be reasonable.
The issues in this hearing are:
Is TN precluded from receiving income replacement benefits on the basis that she failed to apply for mediation and arbitration within two years of Personal's refusal to pay those benefits, pursuant to section 51(1) of the Schedule?
Was TN employed or self-employed at the time of the accident?
If TN was self-employed, is the rent of the family-owned barn to be added as losses from self-employment, pursuant to sections 6(5) and 6(6) of the Schedule?
Did TN fail to submit an application for attendant care benefits to Personal within 30 days after receiving the application forms, contrary to section 32(3) of the Schedule, and, if so, what are the consequences of that failure?
Did TN fail to submit an application for housekeeping benefits to Personal within 30 days after receiving the application forms, contrary to section 32(3) of the Schedule, and, if so, what are the consequences of that failure?
If the answer to Issue 4 is "no", is TN entitled to attendant care benefits, from the date of the accident and ongoing, at the rate of $5,904.76 per month, pursuant to section 16(2) of the Schedule?
If the answer to Issue 5 is "no", is TN entitled to housekeeping benefits from October 29, 2000 and ongoing, at a rate of $100 per week, pursuant to section 22(1) of the Schedule?
Is TN entitled to nutritional counselling services, in the amount of $720, pursuant to sections 14(2)(h) and/or 15(5)(l) of the Schedule?
Is TN entitled to medical and/or rehabilitation benefits for the purchase of medical marijuana, from December 14, 2005 and ongoing, at the rate of $1,200 per month, pursuant to sections 14(2)(h) and/or 15(5)(l) of the Schedule?
Is Personal liable to pay TN a special award on the basis that it unreasonably withheld or delayed payments, pursuant to section 282(10) of the Insurance Act?
Is TN entitled to interest on overdue benefits, pursuant to section 46 of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?
TN is not precluded from receiving income replacement benefits.
TN was employed at the time of the accident.
Given that TN was employed at the time of the accident, it is unnecessary to determine Issue 3.
TN did not fail to submit an application for attendant care benefits as required, and is entitled to arbitrate her entitlement to those benefits.
TN did not fail to submit an application for housekeeping benefits as required, and is entitled to arbitrate her entitlement to those benefits.
TN is entitled to attendant care benefits from October 29, 2000 and ongoing, at the rate of $5,056.80 per month, less any amounts already paid by the Insurer.
TN is entitled to two hours of housekeeping services per week, from May 1, 2008 and ongoing.
TN is entitled to nutritional counselling services, in the amount of $720.
TN is entitled to medical benefits for the purchase of medical marijuana, from March 27, 2007 and ongoing, at the rate of $567.60 per month.
At the request of the parties, the issue of a special award will be addressed at a resumption of the hearing, if required.
At the request of the parties, the issue of interest will be addressed at a resumption of the hearing, if required.
The issue of expenses will be addressed at a resumption of the hearing, if required.
EVIDENCE AND ANALYSIS:
TN claimed income replacement benefits ("IRBs") from May 2, 2003, the date of the Insurer's most recent denial of IRBs. In the course of the hearing, the Insurer conceded TN's substantive entitlement to these benefits. However, the Insurer maintained that TN was precluded from receiving the claimed benefits on the basis that she had failed to apply for mediation or arbitration within two years of the Insurer's refusal to pay the benefits. Pursuant to sections 281.1 of the Insurance Act and 51(1) of the Schedule an insured person must commence a mediation or arbitration "within two years after the insurer's refusal to pay the benefit claimed." The Insurer denied IRBs on three separate occasions. The Insurer submits that TN had until May 2, 2005 (two years from its most recent denial of IRBs) to apply for mediation or arbitration. TN applied for mediation on November 4, 2005 and for arbitration on February 20, 2006.
TN made several arguments in respect of the limitation period:
the limitation period never began to run because the Insurer had never clearly accepted TN's entitlement to IRBs;
the limitation period never began to run because TN had not been advised of her ability to make a claim for certain IRBs, and therefore she had not "discovered" her loss to make such a claim;
the Insurer failed to issue a clear and unequivocal refusal of benefits;
the Insurer failed to set out the reasons for the denial, contrary to section 45 of the Schedule;
the Insurer failed to properly advise her of her rights to dispute the denial, contrary to the Supreme Court of Canada's decision in Smith v. Co-Operators General Insurance Company  2 S.C.R. 129
TN lacked the capacity to dispute the Insurer's refusal of IRBs in a timely manner;
the Insurer's termination of IRBs was unconscionable, and therefore null and void, since the Insurer knew the medical and personal difficulties TN was experiencing at the relevant times
The Arbitrator found that he need only consider the question of whether the Insurer issued a clear and unequivocal refusal of benefits in accordance with Smith v. Co-operators in order to determine whether TN was entitled to proceed to mediation and arbitration on her claim for IRBs. The Arbitrator found that the Insurer failed to issue a proper termination of benefits, that the limitation period never began to run and that TN was, therefore, not barred from proceeding to mediation and arbitration on her entitlement to IRBs.
The two-year limitation period begins to run from the date TN receives a clear and unequivocal refusal of benefits, for example, Zeppieri and Royal Insurance Company of Canada (FSCO A-005237, February 17, 1994), Adami and Wawanesa Mutual Insurance Company (FSCO A08-000172, October 8, 2008) and Monks and Dominion of Canada General Insurance Company (FSCO A08-001237, May 1, 2009), appeal dismissed (FSCO Appeal P09-00018, December 10, 2009). Further, section 49 of the Schedule states that if an insurer refuses to pay a benefit, it shall provide the insured person with a written notice concerning the person's right to dispute the refusal. In Smith v. Co-Operators, Gonthier, J., for the Court, stated:
In my opinion, the insurer is required under s. 71 [the predecessor to s. 49] to inform the person of the dispute resolution process contained in ss. 279 to 283 of the Insurance Act in straightforward and clear language, directed towards an unsophisticated person. At a minimum, this should include a description of the most important points of the process, such as the right to seek mediation, the right to arbitrate or litigate if mediation fails, the mediation must be attempted before resorting to arbitration or litigation and the relevant time limits that govern the entire process. Without this basic information, it cannot be said that a valid refusal has been given.
As noted, the Insurer denied TN IRBs on three separate occasions. The first was on April 10, 2001 in an OCF-9 (an Explanation of Benefits Payable by Insurance Company form) issued to TN, in which the Insurer noted the IRBs payable as "0.00" and stated:
Based on Section 30(2)(b) you are excluded from receiving Income Replacement Benefits under this policy as you are not a named insured according to Section (3). We are therefore denying payment of Income replacement benefits…
The OCF-9 leaves the "Eligible" and "Ineligible" boxes in the Weekly Benefits section blank. Neither the OCF-9 nor a letter of the same date sent to TN's lawyer at the time, Mr. Allan Dick, and copied to TN, set out the process by which TN could dispute the Insurer's denial of benefits. The issue of the exclusion was subsequently resolved and the Insurer began to pay TN IRBs. However, the Insurer then had TN medically assessed and determined that she was no longer entitled to these benefits. The Insurer, therefore, issued its second denial in an OCF-9, dated November 15, 2002, in which the "Not Eligible" box in the IRB section was checked off, and the following stated:
Based on the Neuropsychological, Orthopaedic and Functional Abilities Examination reports as well as all other medical documentation on file, you are no longer eligible for this benefit as you do not suffer a substantial inability to perform the essential tasks of your employment or a complete inability to perform any employment for which you are suited by education, experience and training. Please see attached correspondence dated November 15, 2002 for further documentation.
The accompanying letter set out the process by which TN could dispute the denial of IRBs, as follows:
You have the right to dispute our decision pursuant to the dispute resolution provisions of Sections 279 to 283 of the Insurance Act. The dispute resolution process includes the following:
The first step is for you to apply for mediation at the Financial Services Commission of Ontario (FSCO) within two years of our refusal to pay the amount claimed
If mediation fails to resolve the dispute, you have the right to arbitrate the dispute at FSCO or initiate legal proceedings in court against us
Before the claim proceeds to arbitration or litigation it must proceed through the mediation process at FSCO
Any arbitration or court action must be commenced within two years of our refusal to pay the benefit claimed
The release of the mediator's report will extend the limitation period by 90 days, if the mediation was commenced in time
TN subsequently accepted the Insurer's offer to be assessed by a Designated Assessment Centre (a "DAC") and, once the DAC had delivered its report, the Insurer issued its final denial. In an OCF-9 dated May 2, 2003, the "Not Eligible" box in the IRB section was checked off and the Insurer stated as follows:
Based on the Post-104 Disability DAC, you do not suffer a complete inability to engage in any employment for which you are reasonably suited by education, training or experience. You are no longer eligible for the Income Replacement Benefit. We have received your self employment documentation submitted by Goodman Carr and are currently having it reviewed by an accountant. We shall contact you should further information be required.
A copy of the Disability DAC has been forwarded to Allan Dick of Goodman Carr.
The OCF-9 also set out TN's right to dispute the denial, as follows:
You have the right to dispute our decision pursuant to the dispute resolution provisions of Sections 279 to 283 of the Insurance Act. The dispute resolution process includes the following:
The first step is for you to apply for mediation at the Financial Services Commission of Ontario (FSCO) within two years of our refusal to pay the amount claimed.
You cannot commence a mediation proceeding unless:
you have notified us of the circumstances giving rise to a claim for an accident benefit and submitted an application within the prescribed times,
you have made yourself reasonably available for any insurer examination required by the insurer, and
you have made yourself available for any designated assessment centre assessment and you have cooperated with the centre and submitted to any examinations requested by it.
Any arbitration or court action must be commenced within two years of our refusal to pay the benefit claimed
The release of the mediator's report will extend the limitation period by 90 days, if the mediation was commenced in time
The Arbitrator did not consider the adequacy of the first denial given that the Insurer subsequently began to pay TN IRBs and, therefore, negated any refusal that had previously been issued Rudnicki and Certas Direct Insurance Company (FSCO A00-000930, April 19, 2001), appeal dismissed (FSCO P01-00024, December 12, 2001). The Arbitrator found that the second denial was clear and unequivocal and contained the elements set out by the Supreme Court in Smith v. Co-operators. However, TN subsequently underwent a DAC assessment and, consequently, the Insurer continued to pay TN IRBs. Once the DAC delivered its report, the Insurer issued its third denial. While the second denial appeared to be a valid refusal, the limitation period was not triggered until the Insurer notified TN that it was relying on the DAC report to stop paying benefits. The Insurer's third denial was problematic in two respects. First, it did not contain a clear and unequivocal refusal of IRBs, in that it stated both that TN was no longer eligible for such benefits, and that the Insurer had received TN's self-employment information and was having it reviewed by an accountant. The Insurer also raised the possibility of obtaining further information from TN. The Arbitrator found that, at the same time it was attempting to deny benefits, the Insurer was also signalling to TN that it was considering information relevant to the payment of IRBs and, therefore, that the payment of IRBs was still a possibility.
Secondly, the third denial contained a much more convoluted statement than the second denial of TN's rights to engage the dispute resolution process. In her submissions, TN noted that a denial in language identical to that contained in the third denial was recently found to be inadequate to trigger the limitation period Yifru v. Certas Direct Insurance Company, . The Insurer submitted that Yifru was wrongly decided because it overextended the meaning and scope of Smith v. Co-operators, that it was distinguishable since, unlike the present case, it dealt with a situation in which the only communication of the insured's rights was the noted language in the OCF-9, and that, in any event, the second and third denials were valid refusals (taken either separately or together).
In Smith v. Co-operators, the Supreme Court stated that an insurer must inform the insured person of the dispute resolution process in "straightforward and clear language, directed towards an unsophisticated person." As already noted, the second OCF-9 was overtaken by the subsequent payment of benefits pursuant to the DAC process. However, even if the second OCF-9 were still relevant to the running of the limitation period, it cannot be viewed in isolation from the third OCF-9. In the Arbitrator’s view, in order for the dispute resolution process to be described in a clear and straightforward manner, it must be done clearly and consistently.
In this case, the description provided in the second denial was significantly obfuscated by the explanation provided in the third denial. The third denial omits two of the key elements contained in the second denial (and required by Smith v. Co-operators), namely, the right to arbitrate or litigate if mediation fails and the need to seek mediation before resorting to arbitration or litigation. The third denial substitutes a sizeable list of what TN must do prior to commencing a mediation, and then returns to basic statements as to the time lines for arbitration and litigation. The Arbitrator found (as was found in Yifru) that the third denial failed to set out the sequence of steps in the dispute resolution process in a clear and straightforward manner, and in a way that would make sense to an unsophisticated person. The Arbitrator found that the alterations and deficiencies in the third notice were fatal in themselves and rendered the overall denial process confused and ineffective.
The Insurer attempted to suggest that TN understood her rights under the Schedule and that her delay in pursuing IRBs was done on the advice of counsel. While TN testified that she understood the place of the DAC in the process of claiming IRBs, the Arbitrator did not see any evidence to the effect that TN understood the various steps in the dispute resolution process (as articulated in Smith v. Co-operators). In any event, in order to assert the limitation period, the Insurer bears the onus of establishing that it has issued a clear and unequivocal refusal of benefits, which sets out TN's right to engage the dispute resolution process in a clear and straightforward manner. This is an objective test to be applied without regard to what an insured might or might not have known following a termination of benefits Turner and State Farm Mutual Automobile Insurance Company (FSCO P00-00046, February 1, 2002). The Arbitrator found that the Insurer has failed to meet the onus of establishing, on an objective basis, that it issued a clear and unequivocal refusal of benefits in accordance with the decision in Smith v. Co-operators. It is, in part, on this basis that The Arbitrator found it unnecessary to consider the issue of whether TN lacked the capacity to dispute the Insurer's refusal of IRBs in a timely manner and whether the Insurer's termination of IRBs was unconscionable, and therefore null and void.
Therefore the manner in which the Insurer terminated IRBs was inadequate to trigger the limitation period and that TN was not precluded from mediating or arbitrating the issue of income replacement benefits.
Employment Status and IRB Calculation
The parties disagree as to whether TN was employed or self-employed at the time of the accident for the purposes of calculating the quantum of IRBs. The Insurer maintained that TN was a manager-employee of her parents' business, whereas TN maintained that she ran her own business. If TN was self-employed, the issue is whether the rent of the family-owned barn should be treated as a loss from self-employment within the meaning of section 6(5) of the Schedule.
At the time of the accident, TN lived with her family on a farm where, in April 2000, she started a facility for the boarding and training of horses. Her mother testified that they had built stables for the horses, that TN set up the stalls for the horses, and that at the time of the accident, the business was good, with 18-20 boarders, and 7-8 students. Her mother stated that TN would be at the barn from 7:00 a.m. to 7:00 p.m., seven days a week, taking care of the horses and giving lessons. She also did marketing for the training programme and to get boarders for the business. Her mother stated that this enterprise was set up because TN's father wanted to give her a business and an opportunity. Her mother said that TN did not get a salary for taking care of the barn, that the lessons TN taught were separate from the business account and that she was allowed to keep the money she generated from the lessons. Only TN's father and mother had signing authority for the business. TN's mother stated that she and her husband provided all of the capital for the business and that TN's father bought the equipment for the business. She said that TN was not going to pay rent for the leasing of the barn for her teaching during the first year of the business and that she was not paid wages out of the business's account. The mother stated that TN was self-employed in the teaching lessons, and that she was deemed to be a barn manager/coach.
TN's younger brother testified that TN was in charge of the whole operation at the barn.
TN testified that the enterprise was one business and that her mother was the bookkeeper. She said that her parents bought the equipment for the business and that she would not be responsible for paying rent for the first year of the business. On November 27, 2002, TN filed a Declaration of Post-Accident Income and Benefits, in which she stated that she had received income from self-employment at the business from May 2000 to the present, and that her job title was "manager-trainer."
TN's father owned the property on which the barn was situated, as well as the barn itself. The business was legally registered in June 2000, and TN's father was identified as the sole proprietor of that business. TN's father stated that he wanted his daughter to start a business and that he expected to receive rent from her as soon as the business began to make money. He also stated that if the business did not make money, he would either not charge his daughter any rent or he would close down the business.
TN received free room and board, and lived in an apartment above the barn where the horses were kept. TN did not file income tax returns for the business.
Section 2(5) of the Schedule states that, for the purposes of the Regulation, a person is employed if "for salary, wages, other remuneration or profit, the person is engaged in employment, including self-employment, or is the holder of an office…." The Schedule does not define "self-employment." The Commissioner's Guideline 4/96, entitled Guideline for Identifying Self-employed Individuals, sets out some of the criteria for determining self-employment under the Schedule. Pursuant to section 268.3 of the Insurance Act, such a guideline "shall be considered" in any determination involving the interpretation of the Schedule. The Guideline states, in part, as follows:
For the purposes of the SABS, an individual is considered self-employed if the business he or she derives his or her remuneration from is not incorporated under any law. For example, sole proprietorships and partnerships are considered to be self-employment situations. If the individual derives his or her remuneration from an incorporated business, then he or she is considered to be an employee of the corporation.
Employee An individual who is hired to perform pre-determined tasks/work in a business in exchange for remuneration.
Employer An entity, such as a corporation, group of individuals or a single individual, who hires another individual(s) to perform pre-determined tasks/work in a business in exchange for remuneration.
has an established location where business transactions take place.
determines own method and schedule for accomplishing tasks.
determines own hours and may not necessarily work a set number of hours per period (i.e. 40 hour week).
negotiates the price(s) of product(s) or fee(s) for service(s) with the customer or client with the exception of regulated fields (i.e. physicians).
determines the annual income as his or her profit from the business according to the Income Tax Act (Canada) and Income Tax Act (Ontario).
is ineligible for regular Employment Insurance benefits.
contributes the employer and employee contributions to Canada Pension Plan (CPP) for his or her own pension plan.
collects and remits all taxes to different levels of government according to each respective tax legislation (i.e. GST, PST, source deductions from employee(s)).
IN THE CASE OF A SOLE PROPRIETORSHIP:
has control over:
the hiring and dismissal of employee(s),
the wage level and hours of work of employee(s),
the method by which employee(s) accomplish work, and
executive decisions surrounding the business.
The proper use of the Guideline was discussed in the case of Johnston and AXA Insurance (Canada) (FSCO A04-002670, February 8, 2008), the following comments from which The Arbitrator found instructive:
…as noted by Director's Delegate Makepeace in Iankilevitch and CGU Insurance Co. of Canada [FSCO P03-00013, August 31, 2004], the Guideline sets out the indicators of a "traditional self-employment situation" and "does not purport to be an exhaustive statement of the law [as] that would be unrealistic, because deciding whether a claimant is self-employed or a corporate employee requires a consideration of many factors." …
The Guideline therefore is to be considered but, while it may be persuasive, it is not determinative. It is trite to say that each case must be decided on its own facts. The substance as well as the form of an applicant's business and financial arrangements within the overall pre-accident context must be considered in order to decide whether "self-employment" or "employment" best reflects TN's fiscal reality and keeps with the objective of neither over [n]or under compensating.
In the judicial decision of Ligocki v. Allianz Insurance Company of Canada, , the Court considered the issue of whether the plaintiff was working as an employee or an independent contractor for the purposes of determining how to calculate income replacement benefits under the Schedule. The Court stated the following:
The determination that a worker is an employee or an independent contractor is largely a finding of fact. There is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor….The court must take into account the total relationship of the parties: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.,  2 S.C.R. 983 (S.C.C.) [Sagaz], at para. 46. In saying this, the Supreme Court of Canada rejected the traditional control test as the sole test of employment status. Among other tests, the Supreme Court considered the entrepreneur test articulated in Wiebe Door Services Ltd. v. Minister of National Revenue,  3 F.C. 553 (Fed. C.A.) [Wiebe Door], to be determined by examining the following non-exhaustive list of factors (Sagaz, at paras. 40, 46-48):
Level of control over the worker's activities;
Whether the worker provides his own equipment;
Whether the worker hires his own helpers;
The degree of financial risk taken by the worker;
The degree of responsibility for investment and management held by the worker; and
The worker's opportunity for profit in the performance of his or her tasks.
The key question is whether the individual has been engaged to provide services as a person in business on his or her own account, weighing each of these factors against the particular facts and circumstances of the case (Sagaz, at para. 47).
In addition to what may be called objective factors which can determine the status of the relationship, some courts at the federal level have begun to consider the intention of the parties, or what might be called subjective factors.
This is a somewhat unique business situation. The working relationship between TN and her parents contained elements of both employment and self-employment. On balance, however, The Arbitrator found that TN's status was more in the nature of an employee than a self-employed person. While TN had basic control of the operations of the equestrian facility, the key financial aspects of the business remained with her parents. TN's father established the business as an opportunity for TN, but she bore none of the business's financial risk. TN retained the money generated by the lessons she taught, but this was due to her parents allowing this to occur, and she did not stand to suffer financially as a result of the lessons not generating income. TN's father purchased and owned all of the equity in the facility. While TN identified herself after the accident as being self-employed, TN's father registered as the sole proprietor of the business when it was established. TN's mother was the bookkeeper for the business, only the parents had signing authority and TN did not file income tax returns for what she earned from the business. The business was essentially in its infancy at the time of the accident, and TN had not yet begun to pay rent for use of the premises. This was contingent on the business becoming profitable, and if it did not, TN's father had the option of shutting the business down entirely. The Arbitrator found that while the day-to-day operations of the facility were in TN's hands, in form, substance and intention TN's parents retained control of the business, with TN operating the facility more as an employee on behalf and at the discretion of her parents, than as a self-employed individual running her own business.
In light of this conclusion, The Arbitrator found it unnecessary to determine the issue of whether the rent of the family barn was a loss from self-employment for the purpose of calculating TN's income replacement benefits.
The Application for Attendant Care Benefits
Pursuant to section 32(1.1) of the Schedule, a person is required to notify the insurer, within 30 days of the accident, or as soon as practicable thereafter, of their intention to apply for a benefit. An insurer must then promptly provide the person with the appropriate application forms and information to assist the person with applying for benefits. Pursuant to section 32(3), the person must submit an application for benefits within 30 days of receiving the application form.
The Insurer maintains, in part, that TN did not apply for attendant care benefits within 30 days of receiving the application forms, as required by section 32(3) of the Schedule, and that it should not be required to pay attendant care benefits prior to December 18, 2006, when TN submitted an application for attendant care benefits. The Arbitrator found that TN's delay in submitting a formal Application for Benefits does not, in itself, relieve the Insurer of paying TN any attendant care benefits to which she may have been entitled.
On November 15, 2000, roughly two weeks after the accident, the Insurer sent TN an Application for Benefits by registered mail. TN's lawyer at the time, Mr. Dick, advised the Insurer that TN did not receive the Application, and the Insurer sent out another Application on December 13, 2000. The parties exchanged a number of letters over the next few months, concerning both the nature of TN's claim, as well as the Insurer's concern that the claim should, in fact, be advanced to another insurer. On at least two occasions during this time, the Insurer reminded TN of the need to submit a completed Application for Benefits. TN ultimately submitted an Application on or about April 4, 2001.
The only specific consequence under the Schedule for failing to submit an Application for Benefits in a timely fashion is that set out in section 50(a), namely, being precluded from proceeding to mediation. The Insurer did not argue that TN was precluded from mediating or arbitrating the issue of attendant care benefits because of her failure to submit the Application within 30 days of receiving the forms. However, the Insurer did, in part, suggest that TN's delay relieved it from paying attendant care benefits until at least December 2006, when it received the specific application for attendant care benefits. The Arbitrator found that the fact that TN did not submit an Application for Benefits until April 2001 has no bearing on the Insurer's obligation to pay TN benefits to which she may have been entitled. In the Arbitrator’s view, the delay in submitting an Application for Benefits is only relevant to an insured person's ability to mediate or arbitrate a claim. This determination turns on whether the person provides the insurer with sufficient information to permit the insurer to commence the process of adjusting the claim.
The Arbitrator found that the Insurer in this case had ample information to commence the process of adjusting the claim, if not for all of the available benefits, then certainly for the matter of attendant care benefits. This arises from two principal sources, the first being Mr. Dick's correspondence of November 30, 2000 and the Insurer's Claims Advisor's meeting with TN and Mr. Dick on December 19, 2000. In the noted correspondence, Mr. Dick stated, in part, as follows:
[TN] apparently scored an 8 on the Glasgow Coma Scale ["GCC"] at the time of the accident and, as such, suffered a catastrophic impairment within the meaning of the Statutory Accident Benefits Schedule.
She was initially seen at Mississauga Hospital and was transferred to Sunnybrook Hospital where she remained until last week. She had a number of surgeries at Sunnybrook Hospital including two to her head. She was admitted last week to West Park Hospital. It is currently contemplated that [TN] will be allowed to remain at home relatively soon and arrangements will be made for her to receive the ongoing care and treatment she requires.
We are recommending the use of the case management and rehabilitation services provided by Kent Bowman & Associates Ltd. As you are aware, Mr. Bowman has extensive experience in managing the care of individuals who have suffered head injuries.
The parties then arranged a meeting and the Claims Advisor attended TN's residence to discuss the case with TN and Mr. Dick. The Claims Advisor subsequently wrote to Mr. Dick, in part, as follows:
Thank you for taking the time out of your busy schedule to meet with me on December 19,20 [sic] with your client. I truly appreciate your time and courtesy and I am very happy to see the progress that [TN] has made to date.
In her log notes, the Claims Advisor noted that she had spoken to TN in the presence of her mother and lawyer. The Claims Advisor notes certain details of the accident, TN's pre-accident employment, income and living circumstances, her insurance coverage, the initial hospital report (noting a GCC score of 7 upon arrival at the hospital) and TN's visible head injuries. The Claims Advisor also notes that there had been "some A/C [attendant care] needs and [Mr. Dick] has arranged for her to attend Brampton Rehab Centre which is a DAC [Designated Assessment Centre]." The Claims Advisor also noted that she had "advised [Mr. Dick that she] will arrange for a Form 1 to be completed."
Over the next few months, the parties continued to be in contact on various aspects of the claim, including her treatment and progress, associated expenses and the proper insurer to respond to the claim.
In these circumstances, The Arbitrator found that, although there was some delay in TN forwarding a formal Application for Benefits, the Insurer had more than sufficient information to begin the process of adjusting the claim for attendant care benefits, and had, in fact, indicated that it would commence the assessment of TN's attendant care needs. Therefore, TN's failure to comply with section 32(3) of the Schedule does not, in itself, relieve the Insurer of paying TN any attendant care benefits to which she may have been entitled.
The Insurer maintained that it should not be required to pay attendant care benefits prior to December 2006, when it received a formal application for those benefits. Pursuant to sections 16(1) and (2) of the Schedule, an insurer must pay all reasonable and necessary attendant care expenses incurred as a result of an accident. Under section 16(4), the monthly amount of the attendant care benefit must be determined in accordance with Form 1. As of 2005, section 39(1) of the Schedule provided that an application for attendant care benefits must be in the form of an assessment of attendant care needs prepared and submitted by a legally authorized health professional. Similarly, section 39(3) stated that an insurer "may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with subsection (1) is submitted to the insurer." The Arbitrator found that the fact that TN did not submit a Form 1 to the Insurer until December 2006, does not relieve the Insurer of its obligation to pay TN any attendant care benefits to which she might have been entitled.
In the Arbitrator’s view, section 39(3) of the Schedule does not displace an insurer's basic obligation to pay reasonable and necessary attendant care benefits determined in accordance with a duly prepared Form 1. Section 39(3) establishes an insured's obligation to claim attendant care benefits in accordance with a Form 1, and an insurer's right to await a Form 1 before assessing an insured's entitlement to attendant care benefits. Section 39(3) allows an insurer to pay attendant care benefits without a Form 1. It states that an insurer is not required to pay attendant care benefits before a Form 1 is submitted. This does not mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. Significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person's need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment. This, however, leaves open the question of whether a person is entitled to attendant care benefits prior to the submission of a Form 1, and this can only be answered in light of the evidence at the relevant times. The question at that point will be whether the evidence prior to the receipt of the Form 1 reflects the assessment contained in the Form 1.
The Insurer in this case maintained that it would be prejudicial for it to be required to pay attendant care benefits retroactively, and in particular, from the time of the accident. However, as with the previous determination under section 32(3), The Arbitrator found that the Insurer had ample information in the early stages of the claim to begin to address the issue of attendant care benefits, especially in light of the fact that TN had likely been catastrophically impaired in the accident. Significantly, the Insurer's log notes of August 3, 2001 note that a Form 1 was to be completed "to ensure that clients attnd [attendant] care needs are $0" and that this was "to be documented, should client attempt to submit a backdated attdnt care claim." Subsequently, at the Insurer's request, AV, an occupational therapist, prepared a Form 1 on September 17, 2001, concluding that no attendant care was required. According to a December 19, 2001 internal Corporate Office Reporting Status Report (Narrative), the Insurer concluded that, based on the Form 1, there were "no attendant care issues." TN did not challenge AV's report at the time. The Insurer also did not issue an Explanation of Benefits denying TN's entitlement to attendant care benefits. TN was recovering well from her injuries, and the focus of the parties shifted primarily to TN's ability to return to productive employment.
TN changed lawyers in mid-2005. She subsequently applied for mediation on various issues, including her entitlement to attendant care benefits in accordance with her having been catastrophically impaired. At the Insurer's request, TN submitted an Application for Determination of Catastrophic Impairment on June 15, 2006. The parties proceeded to a pre-hearing conference, at which time the Insurer acknowledged that TN had sustained a catastrophic impairment as of the date of the accident. The Insurer confirmed this in a letter dated December 14, 2006. On December 18, 2006, TN submitted a Form 1 and formal application for attendant care benefits. The Insurer adjusted the claim in the normal course, initially denying these benefits on March 1, 2007, but then paying them in accordance with a Form 1 they had prepared in July 2008. At the hearing, AK, the Insurer's senior accident benefits claims advisor who handled TN's file from 2002 forward, testified that the Insurer had not been disadvantaged at all by the late submission of the claim for attendant care benefits, and that the Insurer was not maintaining that TN was disentitled to anything on this basis.
In the Arbitrator’s view, while TN did not formally and specifically apply for attendant care benefits until December 2006, the Insurer was well aware of the issue of attendant care benefits from early on in the process, and in fact anticipated the possibility that TN might seek to claim such benefits retroactively. It would, of course, have been preferable for TN to have responded to AV's report at the time it was issued, but the Arbitrator saw no evidence that the Insurer was incapable of properly responding to the claim once it was made, and the Insurer's senior claims advisor, in fact, testified that there was no prejudice to the Insurer from having received the formal application for attendant care benefits much later in the claim. The Arbitrator noted as well, that the Insurer never clearly denied these benefits until 2007, and did not attempt to suggest that TN was precluded from claiming them by operation of any limitation period. TN was free to claim these benefits at a later stage, particularly in light of the fact that the Insurer only formally acknowledged in December 2006 that TN had been catastrophically impaired since the date of the accident.
The Arbitrator found that, while delayed, TN properly raised the issue of attendant care benefits, that the Insurer was fully capable of responding to the claim, and that the real question is whether TN has established her entitlement to the quantum and duration of benefits claimed.
The Application for Housekeeping Benefits
TN claims housekeeping benefits from the date of the accident, ongoing, at the rate of $100 per week. In a manner similar to its argument on attendant care benefits, the Insurer maintains that TN failed to apply for housekeeping benefits within 30 days of the expenses being incurred, contrary to sections 32(3) of the Schedule. While the Insurer raised these concerns, it did not specifically argue that TN is disentitled to housekeeping benefits as a result. The Arbitrator noted the evidence of AK (discussed above in connection with attendant care benefits) that the Insurer was not prejudiced by TN's delay in applying for benefits, and was not attempting to suggest that TN was disentitled to any benefits on this basis. In any event, The Arbitrator found that TN is not precluded from receiving housekeeping benefits on the basis of delay.
As with TN's claim for attendant care benefits, the Insurer either was or ought to have been aware of TN's claim for and/or potential entitlement to housekeeping benefits from early on in the claim. The Insurer's Claims Advisor met with TN, along with her mother and lawyer, approximately two months after the accident, and reviewed TN's living circumstances, as well as TN's need for attendant care assistance. TN submitted a formal Application for Benefits in April 2001, along with a Disability Certificate from TN's family doctor, which indicated that TN suffered from an impairment that substantially prevented her from performing her pre-accident housekeeping and/or home maintenance activities. The Insurer's log notes of April 10, 2001, indicate that TN is able to "shop and partially prepare meals…to wash dishes [and] with respect to housekeeping she is partially able to complete these chores." The Insurer did not issue an Explanation of Benefits either denying housekeeping benefits or requesting additional information about the extent of TN's household limitations. In the Arbitrator’s view, the Insurer had ample information to commence the process of adjusting TN's entitlement to housekeeping benefits.
Following her change of solicitors in mid-2005, TN filed for mediation on a variety of issues, including her entitlement to housekeeping benefits. TN subsequently applied for arbitration and, pursuant to a request by counsel for the Insurer on August 24, 2006 (and following the pre-hearing conference on September 5, 2006, at which time housekeeping benefits were confirmed as an issue for the arbitration), TN formally applied on December 18, 2006 for housekeeping benefits, from November 24, 2000 to July 31, 2006 at an average rate of $100 per week, and from August 1, 2006, onward, at $50 per week. TN subsequently made several specific claims for housekeeping benefits commencing in January 2009, and the Insurer responded with several OCF-9s denying these claims on the basis that TN did not suffer a substantial inability to perform her pre-accident housekeeping duties.
While the issue of housekeeping benefits developed in a somewhat haphazard way, the Arbitrator found that the Insurer was more than capable of addressing the matter, and particularly in early 2001. The issue was confirmed at the mediation in late 2005, and subsequently in late 2006. While TN only submitted specific claims for housekeeping expenses commencing in 2009, the Arbitrator did not find that TN is precluded from receiving such benefits, as long as she is able to establish her substantive entitlement to them. Again, during the hearing, the Insurer's evidence was that it was not prejudiced by TN's delay in applying for benefits, and it was not suggesting that TN was disentitled to any benefits on this basis. The essential question is whether the evidence as a whole indicates that, as a result of the accident, TN was substantially disabled from performing her pre-accident housekeeping duties.
Entitlement to Attendant Care Benefits
TN sought attendant care benefits 24 hours per day from the date of the accident, due to the severity of her impairments and the risks she faces if left without round-the-clock assistance and monitoring. The Insurer maintained that TN was not entitled to any attendant care benefits, on the basis that she had not provided sufficient evidence of the nature and extent of the services allegedly provided. In the alternative, the Insurer maintained TN would be entitled to attendant care from the date of the accident, in accordance with the Form 1s prepared by IV, an occupational therapist, at rates ranging from $1,246.20 per month to $1,685.60 per month. The Insurer has been paying attendant care benefits at the rate of $1,685.60 per month as of July 18, 2008.
As a preliminary matter, TN maintained that the Insurer did not properly advise her of her rights to attendant care benefits, did not properly assess her entitlement to those benefits (when it was both clear attendant care was required, and when there was sufficient information to constitute an application for attendant care benefits), and did not offer TN an attendant care DAC in a timely way. However, TN did not go to the point of arguing that these breaches (assuming them to have taken place) entitled her to attendant care benefits regardless of her substantive entitlement to those benefits. In any event, even if the alleged breaches occurred, they would not, in the Arbitrator’s view, entitle TN to the attendant care benefits claimed. The Arbitrator relied on the case of Stranges v. Allstate Insurance Company of Canada, , where the Court of Appeal found, in part, that the failure of an insurer to provide adequate notice of the denial of income replacement benefits did not "automatically entitle the insured to payment of benefits. She was still required…to prove her claim." The Arbitrator found that, even if the procedural breaches occurred as alleged, TN must still establish her substantive entitlement to attendant care benefits.
Pursuant to section 16(2) of the Schedule, an insurer is required to pay, in part, for "all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant." Pursuant to section 16(4) of the Schedule, the monthly amount of attendant care benefits "shall be determined in accordance with Form 1."
What constitutes reasonable and necessary attendant care expenses is, of course, something to be determined on the particular facts of the case. As indicated above, the fact that an applicant has delayed in submitting a Form 1 is not necessarily fatal to their entitlement to attendant care benefits, as long as they can establish that they have incurred such expenses as a result of the accident, and that the expenses are at least those set out in the Form 1 ultimately provided. While entitlement to attendant care benefits can be determined in the absence, or prior to the date, of the Form 1, arbitral decisions have established that there must be "fairly detailed evidence of what services were provided, by whom and for what period of time" and that the "Schedule does not allow [an arbitrator] to speculate about the nature of the services provided, the length of time they were provided, as well as their cost in order to make an award based on what seems reasonable." The Estate of Salvatore Buccellato and Allstate Insurance Company of Canada (FSCO A03-000609, April 14, 2004) . The Arbitrator noted that it is not essential that an applicant provide proof that services were, in fact, obtained and/or paid for, as long as they have provided sufficient evidence of their need for such services (Belair Insurance Company v. McMichael (2007))
The Arbitrator found that, as a result of the significant physical and psycho-emotional injuries she suffered in the accident, TN experienced various personal, social and functional difficulties which required her to be supervised, assisted and monitored throughout the day and night, for her own safety and that of the people around her. The Insurer submitted that various assistive devices were available to TN to protect her in the event of an emergency. The Arbitrator found that, given the nature of TN's impairments, these devices would not be adequate to ensure her personal safety or the people with whom she was involved. The Arbitrator found that TN provided sufficient evidence of the nature of attendant care services provided, the identity of the individuals providing the care, and the times this assistance was either required or provided.
As noted earlier, at the time of the accident, TN was in the process of establishing an equestrian facility for the boarding and training of horses, as well as providing riding lessons. TN had also been involved in competitive riding, at which she excelled. Her mother described her as being in a "good place" and a "happy place" in her life, and as having a normal temper. TN's mother testified that her daughter was fully involved with her equestrian business, and that it would have been very successful if the accident had not happened. Her older brother also described TN this way, although he acknowledged that after high school and before the accident, his sister had become involved with the "rave" scene at dance clubs, taking "magic mushrooms" and "ECCtacy." TN testified that she was heavily involved in the rave scene, but that this was only until she was 19, roughly two years before the accident.
(i) TN's Injuries
TN suffered significant physical, psychological and emotional injuries as a result of the accident. The Insurer has accepted that TN is catastrophically impaired as a result of the accident. A Medical and Rehabilitation DAC on October 29, 2002 noted the following as some of the accident related injuries:
significant head injury – Glasgow Coma Scale 7/15
depressed compound skull fracture of temporal bone
left pulmonary contusion
right facial nerve damage
right cranial nerve damage
TM joint pain
neck and back strain
post-traumatic stress disorder
On August 2, 2002, Dr. LF, a neuropsychologist, reported as follows:
Cognitively [TN] is presenting with mild to at times moderate neurocognitive impairment….In addition, [TN] also presents with behavioural features of mild disinhibition, which likely secondary to traumatic damage to the right orbitofrontal or ventromedial cortex.…[TN] also acknowledged that she suffers from significant posttraumatic fatigue, and in my opinion, this is not unexpected given the nature and severity of the sustained injuries….she appears to present with difficulties adjusting to the multiple cognitive, behavioural and sensorimotor sequelae from the craniocerebral and facial trauma….
In late 2002, JG, a registered nurse and psychotherapist who has been working with TN since May 2001, reported that "behaviorally there have [been] some significant changes [in TN] such as: a hearing impairment, slurred speech, facial disfigurement, and anger outbursts" and that she has "difficulty with organization, memory, and concentration", with "frequent mood swings related to triggering events and concurrent depressive symptoms." On June 30, 2005, JG reported that TN suffered from adjustment disorder, post-traumatic stress disorder and chronic pain.
On April 6, 2006, MP, a speech language pathologist, reported TN and her mother stating that TN suffered from the following difficulties as a result of the accident:
lack of mental energy to do activities
being slow to respond
having the feeling that her mind is blank
easily distracted by surrounding noise
difficulty keeping track of activities and thoughts as her mind wanders
being able to concentrate for only very short periods of time
misses details and makes mistakes
easily gets off track if people are milling about nearby
difficulty paying attention to a conversation if more than one person participates
easily loses her place if the task or her thinking is interrupted
easily overwhelmed if a task has several component
difficulty paying attention to more than one thing at a time
(ii) TN's Impairments
A number of individuals testified that, as a result of the injuries she suffered in the accident, TN experienced various personal, social and functional difficulties.
TN said that she has lost control of her emotions following the accident. She testified that, while she had used drugs prior to the accident, she has begun to use alcohol and marijuana on a regular basis to cope with the pain, anxiety and insomnia resulting from the accident. She said that she often stumbles in the morning if she gets up too fast, because she has lost equilibrium in one ear. She stated that she does not know how many times she has almost burnt her parents' house down by leaving things on the stove. TN testified that, for the first five years after the accident, her mother provided all of her attendant care, noting that she drove her to all of her surgeries (of which there have been approximately seventeen) and medical appointments. TN acknowledged that her mother was reimbursed for her driving expenses. TN said that she will call her husband (whom she married in 2008) three to four times a day.
TN recounted a number of incidents involving her safety and security following the accident, and provided a written chart of some of these situations. She recorded that in February 2002, she "impulsively drove against [her] parents' advice…during a winter storm…, lost control and caused [a] collision." TN recounted an incident in 2004 where she was sexually assaulted by a friend and co-worker after some drinking, and that if she had had better balance, she could have fought him off. This incident does not appear to have been reported to the police, although it was mentioned to JG, TN's psychotherapist. Various other incidents began in 2006, after TN stopped seeing Dr. CC, a psychiatrist, due to the issue of using traditional pain and anxiety medication versus marijuana. She drove her car while her licence was suspended. She was charged with driving while under the influence of alcohol. Her use of drugs and alcohol increased significantly. She was involved in various disputes with her family, sometimes resulting in the police being called, and one involving a serious physical altercation with her older brother, where she suffered broken ribs.
TN testified that in the summer of 2009, she drank three large beers while sitting in a car in a parking lot, after which she drove the car, hitting another car in the parking lot, and was charged with impaired driving. She stated that she has mentioned suicide a few times since the accident, and that once, in the summer of 2009, she cut her wrist with the dull side of a knife in front of her brother after an argument with him, stating that "I've been through so much, maybe I'll just kill herself."
TN's mother testified that TN was unable to fully return to her work at the barn, became depressed and was rendered a "walking zombie" as a result of anti-depressant medication she had been prescribed by Dr. CC. She said that her daughter did not think she had any limitations, and tried to return to her horse training business and competitive riding. TN's mother stated that she was her daughter's caregiver for the first five years after the accident, and, in particular, drove her daughter to almost all of her medical appointments during this time. However, she did say that her daughter was able to take her to the hospital in 2003 when she, herself, suffered a heart attack. She stated that her daughter's short-term memory diminished after the accident and that she had to remind her to take her medications. TN's mother testified that TN would sometimes lose her way to medical and other appointments, and called for directions (and on at least one occasion in 2002, she had to "talk her down" because her daughter was lost and frustrated). She stated that her daughter would "go with anyone, since she was so thankful they went out with her." She said that she only heard about the alleged sexual assault much later, in approximately 2005. She reported in 2006 that she would call her daughter each day to see if she had had anything to eat for lunch. She testified that this was the case from the time of the accident. She said that her daughter once set a grease fire in her kitchen in 2006. She stated that her daughter stopped taking all of the prescribed medication in the spring of 2006, began to self-medicate and became very argumentative and abusive at that time. TN's mother testified that in late 2007, she was forced to take out a restraining order against her daughter because her daughter would come to her house with her boyfriend at the time and damage her property. She has had very little contact with her daughter since then.
TN's mother-in-law testified that TN was quite forgetful, and that she was worried about TN's health since she was so thin. However, she stated that TN was able to work to a certain extent with her horses, doing some heavy chores, such as lifting feed bags, and that TN was "emotionally intact" when around animals.
TN's younger brother testified that TN became very abusive to him after the accident, and that their relationship has become very strained as a result. He stated that she was very forgetful after the accident, sometimes burning toast and leaving the water running. He was concerned that his sister is by herself and that she might start a fire in her house.
TN's older brother testified to the same effect, noting that TN had left a pot of water on the stove even after the water had fully boiled off. He stated that TN has become very abusive after the accident, probably without realizing that she's hurting people's feelings. He testified that TN once threatened suicide, that the police were called and she was taken to a place and kept under observation for a day or two.
JG, who has been treating TN since approximately six months after the accident, testified that from the very beginning of their sessions together, TN was very impulsive, angry and emotional. A year after beginning therapy, JG noted TN as being in "perpetual crisis" and as needing "reassurance and support." JG testified that, despite TN being very depressed and anxious, she had no general concerns with TN's safety because she was with her mother all of the time. She stated that, in the first two years of therapy, TN's mother came into the sessions with her. JG testified that TN forgot multiple appointments with her, that she forgot to take things with her when she left JG's office, and that she would forget to look at the lists of things JG set out for TN to do. JG recorded that, in January 2008, TN mentioned the alleged sexual assault.
MH, an occupational therapist and, since 2007, TN's case manager, testified that she responds to TN's calls approximately two to three times per week, to help her cope with financial and marital problems, as well as to remind her to prepare meals, and to attend medical appointments. MH stated that, in two team meetings at TN's home, she had to remind TN to eat breakfast, that TN could not hear people knocking at the door, and that she had to remind TN to turn off the kettle on the stove. MH testified that she was very concerned for TN's safety living alone and that she needed constant supervision, which she, and TN's friend and mother-in-law were providing. MH stated that TN's husband provided support when he was there in the evenings and weekends. In cross-examination, MH acknowledged that TN was on her own during various times of the day and sometimes on the weekend, when her husband was away, and that an automatic shut-off kettle had been provided to TN in 2009 and is working.
TN's friend testified that she was with her in the summer of 2010, when TN's husband was away, and that she helped to remind her to have meals, and to take her to her medical appointments, because TN would often forget to eat and would get lost.
TN's husband testified that TN has significant problems with anger and anxiety, that in anger she has mentioned killing herself, that on three separate occasions, he has had to restrain her from jumping out of the car, and that on one occasion, she cleaned ashes out of the fireplace and placed them in a container on the carpet, which then burned through the carpet. TN's husband testified that his home "may not be there the next time." He stated that TN got into an altercation with her brother in January 2008, that her brother assaulted her and broke three of her ribs. TN's husband testified that he talks to his wife on the phone morning, noon and night, when he is at work, to make sure everything is all right. He stated that he is out of the house four to five times a week in the evening, for roughly six months a year, as a referee in a hockey league.
Given the significant emotional and psychological difficulties TN suffered following the accident, the Arbitrator accepted that she would be entitled to a certain degree of attendant care assistance. The issue is what level of care she would be entitled to and at what times. A number of reports were prepared on this matter.
(iii) Assessments of Attendant Care Needs
The first assessment of TN's attendant care needs was prepared by AV, an occupational therapist, at the request of the Insurer. AV reported TN as saying that she had made a "substantial recovery", and had "resumed tasks related to self-care and homemaking." AV prepared a Form 1, dated September 17, 2001, in which she did not recommend any attendant care services.
TN first submitted an attendant care Form 1 on December 18, 2006, prepared by NK, an occupational therapist, and dated May 8, 2006. NK recommended 24-hour attendant care, almost exclusively under the Level 2 Attendant Care category for Severe Brain Injuries where the "the client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour." NK indicated that TN was not safe to be left alone and would not be able to live independently. NK testified that TN was unpredictable and, therefore, needed 24 hour support and assistance, which she had had through her family since the accident.
At the request of the Insurer, a further Form 1 was prepared on January 29, 2007 by AV, an occupational therapist, who indicated that, "while…in the past [TN] might have required some level of attendant care, this [was] not supported at the present time." Based to a significant degree on interviews with TN and her boyfriend at the time (with whom she had been living for approximately six months), AV felt that TN was safe to be left alone. AV noted that TN had various people she could call for assistance.
AV conducted a further assessment on July 18, 2008, at which time TN's personal and living circumstances had changed, and AV now recommended four hours of attendant care per day, five days a week, essentially to assist at "meal preparation times…and help break up the monotony and loneliness during the day when [TN] is home alone" (the latter being as a result of being "isolated in her current home, with no public transportation or ability to drive"). AV noted that "without attendant supervision, …[TN] is at risk of experiencing an incident and has a lower functional level due to her cognitive limitations such as poor memory." However, AV did not provide for attendant care while TN's husband was otherwise present in the house. AV stated that, when TN was home alone, she would benefit from the "Linkage with Life Line Support" programme, which allows an individual 24 hour access to emergency support. AV testified that such a "lifeline" could be used to call 911, a friend or relative in the event of an emergency.
AV prepared one final Form 1 on October 16, 2009, with an increase to eight hours per day, seven days a week, in "attendant care supervision…due to [TN's] increased stress level and poor coping skills" and the "husband's working evenings." As indicated, the Insurer is now paying attendant care on this basis. AV continued to feel that 24-hour supervision was not necessary, in part, for the following reasons:
TN specifically said she did not want someone with her at all times, telling her what she could and could not do
even with the assistance and presence of her family and friends, TN continued to demonstrate maladaptive and risky behaviour, including excessive alcohol and drug consumption
TN's general psychological and functional competence is inconsistent with round-the-clock supervision
TN is quite manipulative and would continue to act out due to increased pain and stress levels, even with a professional attendant
On April 10, 2008, Dr. RG, a psychologist retained by TN, reported that he did not "know for certain if [TN] would be unsafe living alone, but…it [was] reasonable to assume that she would be unsafe due to her cognitive impairments in the domains of perceptual cognitive function and executive function" (emphasis in original). Dr. RG stated that TN did not need "continuous, one-to-one supervision, but she needs support, which could include, on a long-term basis, assistance with housekeeping and homemaking." Dr. RG also stated that, in respect of TN's ability to function within the community, "without any support I fear that her functioning could deteriorate, particularly from the psycho-emotional or behavioural point of view, and if that were to happen, she would certainly encounter any number of substantial risks to her safety…." Again, Dr. RG did not feel one-to-one supervision was required. In a supplemental report, Dr. RG clarified that TN required 24-hour supervision, in the sense that "someone in a position of responsibility always needs to be aware of [TN's] location and her activity" (emphasis in original). He stated that "this has been the case ever since her injury, and will hold true for the rest of her life." Dr. RG testified that he had some doubt if TN could respond appropriately to an emergency at night, without someone available to assist her. He noted, for example, that individuals, such as TN, with frontal lobe injuries, would decide to stay and fight a fire, instead of trying to flee it. He said that specific arrangements needed to be worked out for someone she could call for assistance, and someone who would know where and when she was planning on going out. In cross-examination, he acknowledged that TN had assisted her mother when she suffered a heart attack (by, in part, calling 911), stating that, on that day, she had the ability to respond.
On June 16, 2008, Ms. TS, an occupational therapist retained by the Insurer, conducted a further attendant care assessment and prepared a Form 1, indicating that due to TN's decreased memory and processing speed, as well as her poor executive functional skills, limited judgment, poor insight and low mood, which, in part, "affects her ability…to use good judgment in an unforeseen event/emergency", she required "24 hours per day of attendant care or supervision."
On September 9, 2009, SE, an occupational therapist, prepared an updated Form 1 at the request of the adjuster, and reported that, "due to her cognitive-behavioural impairments…[TN] requires 24 hour supervision or access to support to maintain her safety, security and emotional comfort." SE testified that TN was unpredictable and impulsive. She stated that TN was not reliable in an emergency, and, for example, that she would be more inclined to stay and fight a fire to protect her pets and horses, than to escape the fire. On February 5, 2010, SE prepared a Retrospective Assessment of Attendant Care Needs Report and Form 1, covering the period October 29, 2000 (the date of the accident) to September 9, 2009 (the day SE assessed TN's attendant care needs), and stated that due to TN's cognitive-behavioural impairments, TN required "24 hour supervision or access to support to maintain her safety, security and emotional comfort." In cross-examination, SE testified that, "access" could refer to access to a "phone attendant."
On March 5, 2010, at the request of counsel for TN, NK, an occupational therapist, prepared a Retrospective Assessment of Attendant Care Needs Report and Form 1, covering the period October 29, 2000 (the date of the accident) to May 7, 2006 (the day before NK became involved in TN's case). NK based her assessment on a review of the file materials, as well as interviews with TN, TN's mother and Ms. H, TN's case manager. NK noted that, in the relevant time period, TN was either in the hospital (the initial few weeks) or resided in the family home (in the country on a farm) with her mother as her primary support, with a two-year period (2005-2006) spent living with a boyfriend at a nearby apartment and an apartment over the barn on the family's farm. NK noted that, within approximately two months of returning home from the hospital, TN became independent in almost all of the Level 1, 2 and 3 Attendant Care activities noted in the Form 1. NK noted that TN underwent approximately seventeen surgeries and procedures following the accident, and that TN's mother attended to her daughter on a one-to-one basis during those times, being roughly seventeen to thirty-four days in total. NK stated that, despite TN's significant overall recovery following the accident, as a result of her behavioural and cognitive changes and unpredictability TN's safety had been severely compromised and that she required constant, twenty-four hour attendant care. NK reported that between shortly after the accident and 2006, this care was provided by TN's mother who was "either in the house, or called frequently and had the ability and flexibility with her job to leave as needed" and that this care continued "when TN's boyfriend was at work and not available." NK prepared the Retrospective Form 1 for $5,073.85 per month assistance, almost exclusively on the basis of Level 2 Attendant Care for Severe Brain Injuries where "the client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour."
In cross-examination, NK testified that TN was able to dial 911 and leave the house in the event of an emergency. She also stated that a smoke alarm could be used in relation to TN's hearing impairment, that a life-line button could help and that a vibrating device could be used to remind TN to take her medications. NK, nevertheless, maintained that TN required 24-hour attendant care since her condition was unpredictable, that she needed someone to call, and that she needed a "safety net."
Finally, on March 10, 2010, AV prepared a response to SE's Retrospective Assessment of Attendant Care Needs Report, and concluded that TN would have required six hours per day of attendant care from the time of the accident until December 2005, no attendant care for 2006 and 2007 in accordance with her January 2007 report, and attendant care from 2008 onward at the rates set out in her 2008 and 2009 reports. The following is the most salient passage from her report on the need for attendant care from the time of the accident to 2005:
It is also important to note, that at no point was there any mention (in any of the numerous reports reviewed), of [TN's] cognitive challenges escalating to the point that she would have required 24 hour supervisory care. It is significant to remember that from the time of her auto accident, [TN] was assessed by a coterie of medical/rehabilitation professionals (experienced, well trained individuals/specialists who likely possessed a good understanding of, and knowledge of accident benefits) who could have advocated for her in the event that she truly required 24 hour attendant care, for her safety. Thus, it appears that the assessors at the time felt that [TN's] clinical presentation was not 'alarming' to warrant an assessment of her attendant care needs. The writer believes that although [TN] likely required some attendant care after her accident, this was not at the level of 24 hour supervision. Based on the subjective reports of the client's mother, it is understood that she provided [TN] with some assistance with transportation, preparing meals and supervising her behaviour (to keep track of her schedule of appointments), however, [TN's mother] did not indicate that night time supervision was necessary nor 24 hour care.
(iv) TN's Entitlement to Attendant Care
The Arbitrator found that TN is entitled to 24-hour attendant care from October 29, 2000. He was cognizant of the caution against speculating about past attendant care needs. The Arbitrator also aware of the fact that, despite the serious accident in which TN was involved, and the very significant injuries she suffered, she was able to make an impressive recovery, even to the point of making a legitimate attempt to run her horse boarding and training business, as well as returning to a certain amount of competitive riding. Nevertheless, The Arbitrator found that there is more than sufficient evidence to establish that TN had impairments as a result of the accident requiring round-the-clock supervision, and that this degree of care has been provided by a number of individuals since the time of the accident.
The Arbitrator found the most recent report of AV to be a useful framework within which to consider TN's entitlement to 24-hour attendant care in the first years following the accident. The Arbitrator agreed that none of the assessing or treating physicians, or other health care practitioners, in the initial stages of TN's case identified a need for 24-hour supervision. However, the issue is not whether these individuals were qualified to assess such a need, or could have identified such a need, but whether they squarely addressed that question and determined that there was no such need. Other than AV, this is simply not the case. The closest that the physicians came to dealing with this issue is as follows:
Dr. Michael Devlin's response in 2001 to the question of whether TN should participate in cognitive/behavioural therapy implemented by a psychologist familiar with acquired brain injury;
Dr. F's consideration in 2002 of whether TN suffered from any neurocognitive impairment that affected her ability to work or perform her activities of daily living, and whether she required any additional supportive counselling;
Dr. CG’s consideration in 2002 (as part of the Medical and Rehabilitation DAC assessment) of whether TN should receive any additional treatment or services;
Dr. SM’s response in 2003 (as part of the Post-104 Week Disability DAC assessment) to the question of whether TN suffered a complete inability to engage in any employment for which she was reasonably suited.
First, none of these assessors was asked directly about TN's need for attendant care, whether during part of the day or for the entire day. Dr. D indicated that TN did not need any special cognitive/behavioural therapy, but this was on the basis of TN's self-reporting that, although she had poor short-term memory, she was using a daybook to remind herself of appointments, and was improving. However, this flies in the face of JG's and TN's mother's more detailed and extensive evidence of TN's significant need to be reminded of medical appointments and the limited usefulness of tools to help her in this regard. Various practitioners also observed that, because of her admirable motivation to get better and to return to her previous life, TN tended to downplay her limitations.
Dr. F concluded that TN did not need any specific neurocognitive therapy, but in doing so, noted JG's observation that TN had difficulty in controlling emotional outbursts, and required ongoing, supportive counselling. He also indicated that TN would benefit from "brief psychological intervention to help her abort episodes of inappropriate social behaviour secondary to mild disinhibition."
Dr. G agreed that a disputed treatment plan for psychotherapy and counselling was reasonable and necessary, and in so doing, noted that objective psychological testing indicated that TN suffered from significant depressive symptoms (including increased irritability, fatigue and cognitive disturbance) and that TN may be "repressing the extent of her unhappiness." Dr. G also noted TN as saying that she had a "wonderful boyfriend" at the time, who "keeps me cool."
Finally, while Dr. M found that TN was not completely incapable of engaging in reasonably suitable employment, this was on the basis that she had returned to part-time work, and that, "given the fragility of [TN's] emotional state, although she is able to manage some work within her self constructed environment,…there remains some psychological concern."
Thus, while none of these practitioners indicated a need for attendant care, they were not asked to comment on the question, and, in any event, supported the view that TN suffered from significant psycho-emotional problems in the initial years following the accident that required support, counselling and intervention.
The only person to directly address the issue of attendant care was AV (roughly a year after the accident). While AV concluded that no attendant care was needed, there are two significant problems with this result. First, AV's analysis is extremely limited, essentially revolving around TN's self-report of substantial physical recovery and having resumed her self-care and homemaking tasks, as well as some of her vocational duties. This fails to take into account the significant psycho-emotional upheaval in TN's life, and the counselling and support she needed and was receiving from the people around her. It is also contradicted by AV's most recent report, which, on the basis of a more complete understanding of TN's situation, concluded that TN would have required six hours per day of attendant care from the time of the accident until December 2005. The Arbitrator found that AV's conclusion that TN required no attendant care at all, to be unsupportable.
The question, now, is whether TN required round-the-clock supervision. This involves a consideration of the professional and lay evidence of such a need, the evidence of whether such assistance was actually provided, and whether reasonable alternative strategies existed which obviated the need for 24-hour care.
The Arbitrator found that the available evidence supported the need for 24-hour care in the years following the accident and continues to do so. While none of the early health care practitioners specifically identified a need for constant supervision, The Arbitrator found that the evidence established such a need. As discussed above, the views of the physicians consulted by the Insurer indicated serious problems on the part of TN, requiring significant support and intervention. The Arbitrator found JG's evidence to be the most instructive in this regard. JG has intimate knowledge of TN's challenges. She has treated TN consistently from shortly after the accident to the present. JG aptly put it when, a year and a half after the accident, she stated that Applicant was in a state of "perpetual crisis" and needed "reassurance and support." The Arbitrator found significant her testimony that she had no particular concerns with TN's safety because her mother was with her all of the time.
AV felt that, while 24-hour care was not required (either initially or currently), six hours per day and eventually eight hours per day were required. In the Arbitrator’s view, however, this conclusion does not give sufficient weight either to the extensive problems TN was experiencing or the care she was, in fact, receiving. AV reported that TN's mother only assisted with transportation, preparing meals and helping TN to keep track of her appointments. But, as noted by JG and NK, TN's mother provided round-the-clock supervision and care, either by being available during the day to assist TN and respond to her needs (including transporting her to her surgeries and medical appointments, and in fact participating in the psychotherapy sessions with her in the initial two years) or by being in the house during the day and night to respond to any problems that might arise. AV noted that TN's mother did not identify a need for night time supervision or 24-hour care. The Arbitrator saw no evidence to the effect that TN's mother was ever asked if this was required. In any event, TN's mother (and TN herself) testified that she was her daughter's caregiver in the first five years of the accident, providing various forms of assistance and being available to her daughter whether she was in or out of the house. The Arbitrator found that TN's mother's evidence must be viewed in light of Dr. RG' evidence, namely, that while one-to-one supervision was not required, for the sake of TN's safety someone in a position of responsibility always needed to be aware of TN's whereabouts and activity. The Arbitrator found that TN's mother provided just this type of role, by being, for all intents and purposes, on-call for TN during the day, and available to and aware of TN while in the house at night. I, therefore, agree with SE that, due to TN's cognitive-behavioural impairments, she required 24-hour supervision or access to support to maintain her safety, security and emotional comfort.
The Arbitrator acknowledged that TN was not physically with someone at all times and that the people around her have attempted to go about their daily lives, leaving TN alone during the day and evenings. In his view, however, this does not mean that TN was not in need of care and supervision. Several people expressed concern for the possibility of TN setting fire to the house. And TN's family and companions remained in touch with her, despite their absence. As noted by NK, this was even the case from 2005-2006, when TN lived with her boyfriend at an apartment near her family's house and then over the barn at the family farm. AV noted that TN's boyfriend at the time did not feel there were any safety concerns in leaving TN unaccompanied. However, this individual did not testify at the hearing, and appears to have been the same person TN's mother complained was coming over to her house and damaging her property. This was also at the time that TN's mother reported that she had to call her daughter every day to make sure she was eating lunch, that her daughter set a grease fire in her house and became very argumentative and abusive. The ARbitrator put little weight in this evidence. The Arbitrator noted that, in a manner consistent with the evidence of Dr. RG, SE and NK, AV noted at the time that TN had various people she could call for assistance. The Arbitrator found that this is essentially the type of continuous care envisioned by the other three practitioners.
The Arbitrator acknowledged that the chart submitted by TN (of incidents relating to her safety and well-being) only contains two incidents in the first five years of the accident, followed by a string of incidents to 2009. However, one of those incidents involved an alleged sexual assault. Even if it could be said that there were only two incidents in five years, and (without making any finding in this respect), even if it could be said that the assault did not take place, the Arbitrator did not find that this displaces the evidence discussed above to the effect that TN faced significant challenges in her life as a result of the accident and required constant supervision and assistance.
TN's situation deteriorated further in 2006, apparently related to the fact that she had begun to self-medicate. While this may or may not have been advisable, The Arbitrator found this to be consistent with TN's mother's testimony that the conventional medications TN was using rendered her a "walking zombie" and TN's desperation to deal with the pain, anxiety, insomnia and lack of appetite she experienced following the accident. While TN had used various types of drugs prior to the accident, The Arbitrator found that her drug use following the accident became much more frequent and serious, and was directly related to the injuries and impairments she suffered in the accident. TN experienced stress and anxiety, as well, from her parents' divorce in the first few years after the accident. However, The Arbitrator did not find that this at all rendered insignificant the enormous effects of the accident on TN's life and her attempts (whether successful or not) to alleviate the suffering she was experiencing. As several of the people around her testified, TN has become abusive, unpredictable, volatile and potentially a danger to herself and others, particularly since 2006. The Arbitrator found that this supports the type of continuous care and monitoring suggested by Dr. RG.
Based on AV's evidence, the Insurer attempted to suggest that it would not make a difference to TN's safety whether someone was with TN or not, since she has been known to engage in dangerous and self-destructive behaviour in the presence of others (for example, abusing drugs and alcohol, becoming involved with individuals potentially dangerous to her, cutting herself and attempting to jump out of moving cars). In the Arbitrator’s view however, this does not mean that TN should be left to her own devices. On the contrary, this reaffirms TN's need for continuous support, assistance, monitoring and supervision. The Arbitrator noted, in this regard, that AV stated that, without attendant supervision, TN was at risk of experiencing an incident due to her cognitive limitations. This is consistent with TS's conclusion that, due, in part, to her cognitive limitations, TN had diminished ability to use good judgment in the event of an emergency and required twenty-four hour a day attendant care or supervision.
The Arbitrator saw no relevance to the fact (as noted by AV) that TN, herself, did not want someone to be with her twenty-four hours a day. As noted by a number of practitioners, TN tended to minimize her needs for assistance. And AV nevertheless suggested personal attendant care while TN's husband was not present in the house.
AV indicated that attendant care was not necessary while TN's husband was in the house, specifically at night. In the Arbitrator’s view, however, just as TN's mother was there to assist and monitor TN when she lived at her house in the initial years following the accident, so too does the husband now provide that assistance. In this regard, The Arbitrator found the case of Morrison v. Greig,  O.J. No. 225 (Ont. S.C.J.) instructive. Morrison involved a young man who also suffered a frontal lobe injury in an automobile accident, and as a result, was "confused, disoriented, agitated, experience[d] physical aggression, poor memory, lack of insight and poor balance, and concrete thinking." The Court stated that the plaintiff would require a great deal of assistance, even "when out socially." The Arbitrator found the following comments instructive:
Because of his limitations, he will require attendant care for the rest of his life. There is some disagreement about the quality of attendant care that should be allowed for Derek. He has some reluctance to accept assistance from caregivers. The defence suggests that a much lower level of damages be considered because of a lack of likelihood that the Plaintiff will accept the help. In effect, such funds might be wasted.
I do not agree with the defence position regarding attendant care. Today, Derek receives attendant care assistance. The care is not a luxurious form of care. It is necessary. There is no likelihood that Derek will recover and have no need for this form of care. Acquired brain injury is permanent. It affects his frontal lobe. To suggest that the recommended attendant care be reduced significantly or abandoned completely simply passes the task over to the family in the sense of dumping such responsibility on them. There is simply no justification for doing so.
The Arbitrator noted that the plaintiff in that case also lived with his family after the accident. While, in certain ways, the plaintiff in Morrison functioned at a lower level than TN, The Arbitrator found significant similarities between the two cases. The Arbitrator also considered it unreasonable to conclude that TN's reluctance to accept constant personal attendant care or the fact TN's husband resides with TN at certain times of the day in any event, suggests that 24-hour care would not otherwise be required. The recent decision in Henry v. Gore Mutual Insurance Company,  O.J. No. 2928 (Ont. S.C.J.), where the court considered entitlement to attendant care benefits under the amended Statutory Accident Benefits Schedule, which now defines the term "incurred." Section 3(7)(e) of the Schedule now provides:
…an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,
the insured person has received the goods or services to which the expense relates,
the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
the person who provided the goods or services,
(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
(B) sustained an economic loss as a result of providing the goods or services to the insured person
The Court in Henry stated that this amendment "was apparently to prevent a member of an insured's family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway - and would have looked after the injured insured without compensation," thus addressing the finding in L.F. and State Farm Mutual Automobile Insurance Company (FSCO P02-00026, June 3, 2004) that payment by the insured to a family member for attendant care was not a precondition to the insured receiving attendant care benefits for the assistance of that family member.
Given that the current accident occurred in the year 2000, the amended Schedule does not apply in the present case.
The Arbitrator found the present case distinguishable from that of Ryan and ING Insurance Company of Canada (FSCO A07-000989, February 17, 2009) where the Arbitrator dismissed a claim for 24-hour attendant care, in part, on the basis that there was insufficient evidence to establish both that occasional incidents of forgetfulness and poor social judgment (such as leaving the stove or lit candles unattended, and breaking into a locked room while her parents were away) were related to the accident and that TN required "supervision while she sleeps because she is unable to rouse herself in response to an emergency." The Arbitrator found that, unlike in Morrison, the "residual cognitive and emotional impairments experienced by Mrs. Ryan that can be attributed to the 1998 accident are relatively mild." As discussed earlier, The Arbitrator found that there is considerable medical and lay evidence of the significant injuries TN suffered as a result of the accident and that these have significantly impaired TN's day-to-day functioning. The Arbitrator also found that the evidence establishes that, as a result of the accident, TN faces significant danger in the event of an emergency, whether awake or asleep at the time.
The Insurer alluded to the fact, without actually arguing, that TN had a checkered pre-accident history, involving drug use and a run-in with the police, and that her conduct following the accident was not considerably different from before the accident. As discussed, TN did use drugs and alcohol prior to the accident, as she has done since the accident. However, The Arbitrator found that TN's pre-accident use was in the context of socializing during "raves", whereas following the accident, her use has been on a much more frequent, and in fact daily basis to cope with her accident-related pain, anxiety, insomnia and lack of appetite. TN did have an incident with the police approximately two years before the accident while on a family vacation in Mexico, where she was incarcerated overnight after being accused of possessing marijuana and being disorderly while dealing with the police. While, as Dr. RG noted, this evinced poor judgment by TN, The Arbitrator found that her behaviour has become much more abusive to the people around her, including her closest family members, and on a much more frequent and dangerous basis following the accident (for example, when a physical altercation with her older brother resulted in her ribs being broken). The Arbitrator found that TN's drug and alcohol abuse, as well as her inappropriate social behaviour, has significantly worsened following and as a result of the accident.
TN claimed attendant care almost exclusively under Form 1, Level 2 Attendant Care for Severe Brain Injuries, where "the client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour."
In respect of TN's need for assistance to respond to an emergency, the Insurer argued that 24-hour attendant care was not necessary because there were various assistive devices available to TN to protect her in the event of an emergency, such as smoke detectors, a lifeline button and TN's own cell phone. The Insurer also noted that TN could be provided with a kettle and stove with an automatic shut-off feature. In the Arbitrator view, however, these devices do not address the fundamental problem of TN's unpredictability, impulsivity and impaired judgment. As Dr. RG, NK and others testified, TN may be capable of responding to certain situations (as she did when her mother suffered a heart attack), but due to her frontal lobe injury, she is also just as capable of responding inappropriately and dangerously to a crisis (for example, even if aware of a fire, staying to battle the blaze instead of leaving the premises). The availability of assistive devices also does not address TN's need, not only to have access to assistance for the personal crises that she faces in the course of the day, but to have her whereabouts known throughout the day and to be accompanied when going out socially. The key here is that TN requires constant monitoring and assistance to ensure that she neither harms herself nor is harmed by others.
Finally, the Insurer argued that the reference in Form 1 to "custodial care" does not include the type of access to support or monitoring sought by TN. The Insurer referred the Arbitrator to definitions of "custodial care" which indicate that such care generally refers to assistance in performing activities of daily living (for example, assistance walking, preparing meals, dressing and so on). Custodial care is not defined in the Schedule. The definitions provided are by no means exhaustive, and of course are not binding on me. Similarly, the Form 1 reference to custodial care could well include the type of access to support and monitoring sought by TN, given that it is in relation to changes in behaviour due to severe brain injury. There is nothing to suggest custodial care ought to be given the narrow meaning suggested by the Insurer. The Arbitrator noted, as well, that in determining TN's potential entitlement to this (broader) form of attendant care, AV (on whose evidence the Insurer so heavily relied) did not suggest that such assistance was not available under either Form 1 or the Schedule. On the contrary, AV has already recommended assistance in light of TN's legitimate need for access to support and monitoring.
The Arbitrator found that TN is entitled to 24-hour attendant care from the time of the accident. In final submissions, counsel for TN stated that TN sought attendant care benefits at the rate of $5,904.76 per month, without articulating the basis on which this amount was being claimed. The Form 1s TN submitted range in value from $5,056.80 per month to $5,103.85 per month. The Arbitrator found the Form 1s prepared by SE and TS (recommending attendant care at the rate of $5,056.80 per month) reasonably reflects the attendant care required by TN. The Arbitrator found TN is entitled to attendant care benefits at this rate from October 29, 2000, less the amounts already paid by the Insurer.
Entitlement to Housekeeping Benefits
TN sought housekeeping benefits from the date of the accident, onwards, at a rate of $100 per week, on the basis that, as a result of the accident, she was substantially unable to do her normal pre-accident housekeeping activities, within the meaning of section 22 of the Schedule. The Insurer maintained that TN provided little, if any, functional or medical evidence of the assistance she required following the accident, or of the expenses she incurred, and had, therefore, not established her entitlement to ongoing housekeeping benefits.
Pursuant to section 22 of the Schedule, three elements must be satisfied to establish entitlement to housekeeping benefits:
The insured must have performed housekeeping and home maintenance services before the accident;
The insured must suffer a substantial inability to perform those housekeeping and home maintenance services, as a result of an accident-related impairment, and;
Additional expenses must be incurred for someone else to perform those services. [See note 14 below]
Section 22 states that an insurer shall pay for housekeeping and attendant care expenses "incurred by or on behalf of an insured person." Arbitration decisions have held that an insured person "incurs" housekeeping expenses if he or she has promised to pay or is otherwise legally obligated to pay the expense. However, in a manner similar to attendant care benefits, the meaning of "incurred" is broad enough to include situations where an insured has established their need for such services, without in fact receiving or becoming financially liable for them.
The substantive test of entitlement for housekeeping benefits is set out in Konstantakos and Aviva Canada Inc. (FSCO A05-000546, May 17, 2006):
…the test under section 22 involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does amount to a substantial inability, the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.
On December 19, 2000, roughly six weeks following the accident, TN gave a statement to the Insurer, in which she said the following about her pre-accident household activities:
I do not pay rent for living here nor do I buy food. I do however buy most of my own clothes. I buy 90% of my clothes. I am responsible for my own laundry. I do not have any designated household chores. I am responsible for my own room and bathroom and cleaning up after myself. I am responsible for preparing my own lunches and from time to time my own dinners.
TN's mother testified that, before the accident, TN would do everyone's laundry, clean the kitchen, cook meals, wash the floors and vacuum, and that, after the accident, TN could prepare simple meals and do small shopping at the store. However, on cross-examination, TN's mother testified that, before the accident, she (TN's mother) did meal preparation and shopping, and that TN helped with the laundry and light cleaning.
One of TN's friends testified that TN lived with her at her apartment in the month preceding the accident. She testified that they fell out of touch after the accident until 2008, at which time they reconnected, and that during the summer of 2010, when TN's husband was away, she helped TN doing meals, housekeeping and gardening.
TN's mother-in-law testified that she helps TN with her housekeeping approximately once a month, since it is not one of TN's skills and she is very messy.
TN testified that she has returned to some of her pre-accident housekeeping activities, and that her husband helps to make her lunches, and to carry the laundry upstairs.
On September 12, 2001, TN underwent an occupational therapy in-home assessment by AV. AV reported as follows:
Overall, [TN's] Cognitive status and Physical abilities were found to be in keeping with that required to manage self care tasks as well as her share of duties related to homemaking. Whereas she complained of residual areas of discomfort and decreased endurance, this did not result in any substantial functional limitations providing she paced herself and used good body mechanics (i.e. crouching instead of stooping for prolonged low level work etc).
Dr. D, who assessed TN on December 4, 2001 at the request of the Insurer, notes that TN "is able to do the cooking, the laundry and the housework" and that, "from a functional perspective, she has resumed almost all of her pre-accident activities, though not to the same degree or intensity she had been performing prior to the accident."
On October 15, 2002, Dr. RG, an orthopaedic surgeon who examined TN at the request of the Insurer, reported that "the claimant is able to perform her normal pre-accident housekeeping and home maintenance activities." As part of the same assessment, Mr. PR, a kinesiologist, reported that TN "possesses sufficient strength, muscular endurance, flexibility, postural tolerance, and motor dexterity to perform her…pre-accident housekeeping responsibilities."
On October 24, 2002, as part of a multi-disciplinary DAC assessment, Dr. HP, a general practitioner and the primary DAC evaluator, reported TN as saying that she "is able to assist with light groceries and prepare simple meals…assists washing a few dishes and wiping the kitchen counters…does her own laundry…light cleaning, including sweeping, dusting, and tidying up…[and] attempts mopping, vacuuming, and scrubbing although it worsens her neck and back pain."
In the context of a Post-104 Week Disability DAC Assessment, dated April 29, 2003, Dr. BP, an orthopaedic surgeon, reported TN as saying that she was able to perform "most domestic tasks about her home such as vacuuming, cleaning out a bathroom, washing laundry, washing dishes, making a bed, and making meals."
TN underwent a Housekeeping Assessment on May 23 and 30, 2008 by TS at the request of the Insurer. TN had moved into a two-storey home with her new boyfriend in December 2007, and subsequently married in March 2008. TS reported that:
Due to her physical, perceptual and cognitive deficits, [TN] needs 6.3 hours of housekeeping assistance per week to complete the following activities:
Meal preparation and clean up: 2 hours/week
Heavy Cleaning (tub/vacuum/mopping wash windows/ garbage): 2 hours/week
Laundry: 10 minutes/week
Home Repairs: 10 minutes/week
Outdoor maintenance (Garden/Lawn care/Shovelling): 1 hour/week
Grocery Shopping/Carrying grocery bags: 1 hour/week
In the context of her attendant care assessment on July 18, 2008, AV reported on July 30, 2008, as follows:
[TN] stated that she performs some housekeeping tasks such as sweeping the floor, doing the laundry (after it is carried down by her husband), feeding the pets and horses, and preparing some simple meals. [TN] stated that she depends on her husband to carry down the laundry as she feels the need to hold onto the wall to support herself on these steep stairs….[TN] stated that she does not perform any outdoor work, when home alone. She described an incident of cutting the lawnmower electrical cord when she attempted to cut the grass independently.
[TN] stated that she makes herself simple lunches such as "Pizza Pockets, tuna sandwich, salad and peanut butter and banana sandwich."… [TN] stated that for dinner, she makes simple meals such as "soup, chicken or tacos."
In the context of a reassessment of her attendant care needs on August 18 and September 8, 2009, SE reported that TN needed "8.25 hours of housekeeping and yard maintenance support per week" for the same activities noted by TS, as follows:
Meal preparation and clean-up: 2 hours per week
Heavy cleaning: 2 hours per week
Laundry: 15 minutes per week
Home repairs: 1 hour per week
Outdoor maintenance: 2 hours per week
Grocery shopping/carrying grocery bags: 1 hour per week
In her Retrospective Assessment of Attendant Care Needs, dated February 5, 2010, SE concluded that TN required housekeeping support from the time of the accident, at the rate of $100 per week, although she "was able to manage resuming the light housekeeping roles required of her in the home of her parents and in [her boyfriend's] home", since "it has become more evident that she lacks the physical endurance/stamina and the attention and organizational skills to carry out her own housekeeping tasks on a consistent basis."
On October 16, 2009, AV reported TN as saying that she "engages in light housekeeping such as mopping floors, sweeping, organizing the home environment and doing laundry (after the unwashed laundry has been carried down to the basement by her husband or the RSW [Rehabilitation Support Worker])." TN stated that "when home alone, she sometimes lacks the ability to effectively organize her day and engage in tasks in a manner that would minimize pain flare-ups." TN reported that she was "able to engage in light housekeeping with assistance from her husband", that her husband is "responsible for the outdoor seasonal work including grass cutting and snow removal" and that he "usually…prepares the dinner meal…."
The Arbitrator found that TN is not entitled to housekeeping benefits prior to May 2008, and thereafter only at the rate of two hours per week.
While the evidence indicates that TN had not lived with her family for approximately a month before the accident, the Insurer did not attempt to suggest that this should be used as the reference point for her pre-accident housekeeping responsibilities. Given that section 22 of the Schedule refers to the "housekeeping and home maintenance services [the insured] normally performed before the accident", The Arbitrator found that the proper reference is TN's housekeeping duties while she lived at her parents' house.
In final argument, TN submitted that the written statement she provided in December 2000 was not an accurate description of her pre-accident housekeeping activities because it was given shortly after the accident and neither she nor her mother were properly focussed on the matter of housekeeping benefits. However, The Arbitrator found that both TN's and her mother's testimony at the hearing support what is contained in the written statement, namely, that TN had limited housekeeping responsibilities prior to the accident.
TN testified that she did some pre-accident housekeeping, and her written statement suggests that she was only responsible for doing her own laundry, cleaning her own room and bathroom, and making her own lunches and some dinners. While TN's mother attempted to suggest that TN was responsible for significant laundry, cleaning and cooking responsibilities, The Arbitrator found that her testimony on cross-examination is more consistent with TN's written statement and oral evidence, namely, that she had more limited cooking, cleaning and laundry responsibilities.
Despite the severity of the accident, TN recovered to a significant degree shortly afterwards, to the point of being able to resume a considerable number of her pre-accident activities. TN offered very little evidence at the hearing of how or to what extent her family or friends assisted her with housekeeping after the accident. The evidence was that her mother cared for her in the five years following the accident (but this referred primarily to attendant care assistance), that her friend assisted her in the summer of 2010 with meals, housekeeping and gardening, that her mother-in-law assists once a month because TN is messy, and that her husband helps with lunches and to carry the laundry. This evidence is very limited and vague, as to both the timing and extent of the assistance provided. The Arbitrator found that it is insufficient to establish that TN was substantially incapable of doing the modest cooking, cleaning and laundry tasks she did prior to the accident.
While not determinative the Arbitrator noted that TN did not introduce any evidence to the effect that she had promised to pay or reimburse anyone for the housekeeping assistance they provided or that she had become legally obligated to compensate anyone for these services.
Until 2008, the medical evidence also establishes that TN was not substantially disabled from her pre-accident housekeeping tasks. The evidence indicates that she experienced pain and restrictions, but was otherwise capable of doing her tasks. This is evident in the reports of AV, Dr. D, Dr. G, Mr. R and Dr. P. It is particularly evident in Dr. P's report where TN is noted as saying that she does essentially the same tasks as she did prior to the accident.
The picture changes somewhat in 2008 and 2009, with the assessments of TS, AV and SE. TN also testified that she is now in more pain than at the beginning of the accident. However, the reports continue to establish considerable ability on the part of TN (in relation to her pre-accident housekeeping responsibilities), and the assessments are conducted at TN's new residence, which was larger than her pre-accident accommodations with her parents. TN was also not responsible for home repairs, outdoor maintenance or grocery shopping prior to the accident. Nevertheless, The Arbitrator found that the reports more clearly establish a need for housekeeping assistance at that time. Therefore, while the estimates must be modified, The Arbitrator found that, as of May 1, 2008, TN would reasonably be entitled to two hours of housekeeping assistance per week, for meal preparation, heavy cleaning and laundry.
Entitlement to Nutritional Counselling
TN claimed the cost of an eight-session nutritional counselling programme, in the amount of $720, recommended in a treatment plan dated February 1, 2001, from NP, a registered dietitian at Springdale Physiotherapy. The treatment plan indicated that counselling was needed to address the weight and muscle mass loss TN had experienced as a result of the accident, and to "enhance wound healing." The Insurer initially denied this claim on February 19, 2001, on the basis that TN had not yet provided a completed Application for Benefits. Following receipt of the Application for Benefits on April 4, 2001, the Insurer denied the nutritional counselling treatment plan on April 10, 2001, on the basis that it needed clarification whether the programme was covered under OHIP, indicating that it would seek the required clarification from Springdale Physiotherapy. The Insurer's covering letter for the denial states that it was denying the treatment plan "until we receive an explanation why this service is not covered under OHIP…." Pursuant to section 60(2) of the Schedule, payment of a medical or rehabilitation benefit is not required if the expense is reasonably available to the insured person under any insurance plan or law.
At the hearing, the Insurer acknowledged that TN probably needed nutritional counselling. Log notes of a January 17, 2002 meeting between Anne Cleary (a nurse and case manager at Functional Rehabilitation Inc.) and TN and her mother, indicate that TN was having problems with a proper diet and needed the assistance of a nutritionist. Grace Drummond, the Insurer's claims professional and team leader dealing with TN's file in the early stages of the claim, testified that while she supported Springdale's recommendation for physiotherapy, she denied the request for nutritional counselling given that it was likely covered by OHIP, and stated that the Insurer never received an explanation as to why the service was not covered by OHIP.
The Arbitrator found that TN is entitled to the cost of the nutritional counselling programme. The evidence establishes that she suffered significant weight loss following the accident, had poor eating habits, and was in need of assistance with proper nutrition and diet to deal with the weight loss and injuries she had experienced. The Insurer did not provide any evidence that it sought the clarification it wanted as to whether the programme was covered under OHIP, nor is there any evidence that the programme was, in fact, covered under OHIP. While the Insurer's Explanation of Benefits and covering letter denying TN's request for nutritional counselling could be interpreted as requiring TN to provide clarification as to whether the programme was covered by OHIP, this is not at all clear, the Arbitrator saw no reason that TN was obligated to provide this information, and the Insurer, in fact, stated that it would seek the necessary clarification from Springdale Physiotherapy. The Arbitrator noted that counsel for the Insurer indicated that it was not taking the position that TN was disentitled to benefits as a result of any failure to provide information, pursuant to section 33 of the Schedule. In all of the circumstances, The Arbitrator found that TN provided sufficient evidence to support her claim for nutritional counselling and that the Insurer has not disproved her entitlement to those services.
Entitlement to the Purchase of Medical Marijuana
TN claims $1,200 per month for the purchase of marijuana, from December 14, 2005, to alleviate the pain, anxiety, insomnia and poor appetite she has experienced as a result of the motor vehicle accident, pursuant to sections 14 and 15 of the Schedule. In support of this claim, TN submitted treatment plans from Dr. MM, a neuropsychiatrist, dated March 27, 2007 and December 21, 2009, for the purchase of indica marijuana (a cannabis derivative) from the Toronto Compassion Centre (a clinic authorized by the federal government to sell marijuana for medicinal purposes). With Dr. MM's assistance, TN's application to the Marihuana Medical Access Division of Health Canada for the medical use of marijuana was approved on January 27 and 28, 2010. Section 14(2) of the Schedule entitles an insured person to medical benefits for "reasonable and necessary expenses" for, among other things, medication and other goods and services "of a medical nature" that the person requires. Sections 15(2) and (5) entitle an insured person to rehabilitation benefits for "reasonable and necessary expenses" for "goods and services" that the person requires for "measures undertaken …to reduce or eliminate the effects" of a disability or to "facilitate the insured person's reintegration" into his or her family, the rest of society or the labour market. The Insurer submitted that, in the circumstances of this case, the purchase of marijuana is not a reasonable and necessary expense, is not a good or service of a medical nature, and is a good or service of an "experimental nature," which, pursuant to section 14(3) of the Schedule, the Insurer is not liable to pay.
TN testified that, as a result of the accident, she had used prescribed opiates (such as morphine and codeine), anti-depressants, tranquilizers and hypnotic medications, but that the only substance that alleviated her pain, anxiety, insomnia and poor appetite, without significant side-effects, was marijuana. Dr. MM testified that TN suffered from "frontal disinhibition syndrome." Dr. MM stated that opioids, such as Tylenol 3, are inadequate for lessening pain, that he "would like to use marijuana more" for addressing his patients' pain, and that TN's use of alcohol to reduce pain would simply aggravate the syndrome from which she suffers. In a March 1, 2010 report, in which he summarizes some of the studies that have been done on the therapeutic use of marijuana, Dr. MM states that "[a]fter reviewing this literature, and given how commonly medical cannabis and its components and derivatives are being used today, not to mention its extraordinary use for thousands of years to control pain, it is difficult to understand why the use of marijuana for medicinal practice is still considered experimental." Dr. MM further stated that "everyone who works with patients in chronic pain following motor vehicle accidents recognizes how…inadequate the current treatments are…[and that TN's] poor pain control despite the use of opiates and other conventional methods is a case in point."
On cross-examination, Dr. MM testified that while he had done studies on the use of marijuana by brain injured patients (such as TN), he had not attached those studies to his report, that he did not have a "systematic knowledge" of marijuana use, that he was not familiar with the effects of marijuana on the disinhibition syndrome from which TN suffered, and that the use of marijuana could, in certain circumstances, increase her symptoms of disinhibition. Dr. MM also acknowledged that the use of marijuana is still considered experimental by governments and insurance companies.
Dr. AF, a neuropsychiatrist with specialization in brain injuries, reported on June 5, 2007 that marijuana is "not a medication that is conventionally used with Neuropsychiatry" and that its use "should be considered experimental." He stated that the use of marijuana "as a treatment for sleep and pain difficulties remain[s] a controversial point given the relative absence of sound empirical data", that the "jury is still out on its efficacy" and that the "lack of thorough empirical data precludes any definite opinions at this point in time."
However, Dr. AF also suggested a pragmatic approach to the use of marijuana in this case. He stated that "one has to judge the merits of the case on an individual patient by patient basis" and that since TN had stopped using prescribed pain medications, and given the side-effects of those medications (including "sedation, dependency, and a deleterious effect on cognition"), the use of marijuana "would have some merit." Dr. AF also reported that given the potentially serious side-effects of conventional pain relief medication and anti-depressant and mood stabilizing drugs for people like TN with "Personality Change Secondary to a significant traumatic brain injury" and given TN's refusal to take medications prescribed to her, if she "believes the medication is beneficial to her and if it is given under close supervision, an ongoing therapeutic trial, at least in the short term, (namely three months) would seem reasonable." Dr. AF stated that, at the end of the three-month trial, "the situation could be reassessed and if still considered therapeutic, and in the absence of troubling side effects, the treatment could continue." Dr. AF concluded by stating, "Thus, what I am suggesting here is some flexibility when it comes to managing a complicated clinical situation."
At the hearing, Dr. AF was somewhat more reserved in his approach. For example, he testified that he would not have prescribed marijuana in this case, given TN's brain injury and disinhibition. He stated that he had "major concerns" regarding the use of cannibas for treatment and that he does not prescribe marijuana for brain injured patients because it is "unhelpful." He said that he was "less inclined" to suggest a trial of marijuana given that he was now aware of TN's long-standing use of the drug, and that he was "very concerned" about keeping TN on marijuana in the long term. He also said that he would be "very concerned" about prescribing marijuana if, as TN indicated, she drinks a significant amount of beer each night. Nevertheless, Dr. AF acknowledged that marijuana can help with insomnia, and that TN did not appear to be suffering from some of the more serious side-effects of marijuana use on brain injured patients, such as psychosis. He reiterated his view that a three-month trial, with objective monitoring by someone like Dr. MM, would be acceptable, despite being in "experimental waters" and despite TN's history of marijuana use, since it was better to "do something" rather than to "lose the patient entirely."
On June 15, 2006, Dr. CC a neuropsychiatrist and one of TN's treating physicians, indicated that he would only continue to treat TN "on the condition that she consider medication as a primary method of treatment, excluding marijuana" and that he would "not prescribe marijuana until it is determined by the Canadian Guidelines as an approved treatment for traumatic brain-injured patients." TN left Dr. CC because he would not prescribe marijuana for her.
As a preliminary matter, The Arbitrator found that TN's claim for the purchase of marijuana to treat her symptoms is more appropriately addressed as a medical benefit under section 14 of the Schedule, as opposed to a rehabilitation benefit under section 15 of the Schedule. As suggested by the appeal decision of Driver and Traders General Insurance Company (FSCO Appeal P03-00006, November 18, 2003), the purchase and use of marijuana for the treatment of a specific medical condition is more in the nature of a medical benefit as set out in section 14, particularly section 14(2)(h), "other goods and services of a medical nature that the insured person requires", than a general rehabilitation programme, as set out in section 15. As further suggested in Driver, the only provision in section 15 under which the purchase and use of marijuana could be considered is section 15(5)(l), "other goods and services that the insured person requires, except services provided by a case manager", but rehabilitation benefits under that provision must, as a matter of statutory interpretation, resemble the rehabilitation programmes enunciated more specifically in the body of that section (for example, life skills training and social rehabilitation counselling), which The Arbitrator found it does not. Finally, Driver indicates that section 15(5)(l) is not designed to address benefits properly considered, but found not to be covered, under section 14 of the Schedule. The Arbitrator would only consider TN's claim for marijuana under section 14, not section 15, of the Schedule.
In considering TN's claim on its merits, The Arbitrator found the following passage from Pacquette and Certas Direct Insurance Company (FSCO A05-000934, July 24, 2006) on the meaning of "experimental in nature" instructive:
I agree that scientific principles must underlay the interpretation of these terms, but I return to the comments of the arbitrator in the [Caruso and General Accident Assurance Co. of Canada (OIC A96-000644, March 27, 1997)]. The Schedule was intended to be a remedial regime. We are specifically concerned here with the rapid provision of therapeutic medical service. There is no requirement that an applicant prove to a medical certainty that a treatment will be therapeutic. Equally, to my mind, the test is not whether or not it is certain, as a matter of scientific certainty, that a given therapy is proven effective and therefore no longer experimental in nature.
Further, in Driver and Traders General Insurance Company (FSCO A01-000841, January 8, 2003), the Arbitrator stated:
I concluded from the evidence before me that Vistasp therapy is a form of hands-on body therapy similar to massage, unique to Victor Guard; that it is a passive modality of treatment; that it is not very well understood by the three, or possibly four, health practitioners who have even heard of it; and that it is not a form of treatment known or accepted by any recognised body in the health field. As no objective, reliable evidence was presented at the hearing to establish an accepted scientific or medical basis for the therapy, or to substantiate the claims made for it that it is an effective, safe treatment for whiplash, chronic pain, migraine or fibromyalgia, I am not persuaded that it even meets the first, or threshold criterion, under section 14 of the Schedule, that it is a "good or service of a medical nature."
The criteria are clear. Vistasp must be either a good or a service of a medical nature; it must not be experimental in nature; it must be necessary as a result of the accident; and it must be reasonable. Insurers are not required to pay for therapy or treatments that do not meet these criteria. Ms. Driver bears the onus of establishing, on a balance of probabilities, that the first, third and fourth criteria are met. For the reasons set out below, I did not find that Ms. Driver met this onus. With respect to whether or not a particular therapy is experimental in nature, I agree with Ms. Driver that, as this claim is asserted by Traders, it has the onus to establish that proposition. This is an evidentiary onus, however. Once the Insurer has presented sufficient evidence to establish that the treatment is prima facie experimental, the onus shifts to Ms. Driver to show that it is not. Although I found that Ms. Driver failed to establish that Vistasp was a service of a medical nature for the purposes of section 14, in the event my finding is in error, The Arbitrator found that Traders presented sufficient prima facie evidence that Vistasp was experimental in nature, which Ms. Driver's evidence did not rebut.
For the purpose of determining whether a particular therapy is a good or service of a medical nature within the meaning of section 14, The Arbitrator found that the minimum requirements are: credible evidence of independent research in the form of case studies or clinical trials to verify claims, conducted by health practitioners with recognised qualifications in the relevant field, published results, and peer review. I do agree, however, that the use of the qualifier "nature," as in the phrases "goods or services of a medical nature" and "experimental in nature," does allow for a somewhat broader and more flexible interpretation of the terms "medical" and "experimental."
This case is a difficult one. The Arbitrator was satisfied that TN's use of marijuana arises as a result of the accident and that, based in part on Health Canada's approval of her application, it is a good or service of a medical nature. The real question is whether it is experimental in nature and, if not, whether it is reasonable and necessary. The Insurer has established a prima facie case that, in general, the use of marijuana in neuropsychiatry is experimental in nature. However, the Insurer has not shown that the use of marijuana for TN's specific symptoms, namely, pain, anxiety, insomnia and poor appetite, is experimental in nature. While Dr. AF indicated at the hearing that we are in "experimental waters", the most the Insurer has shown is that the available evidence does not definitively prove that marijuana is a safe and effective treatment for these problems. However, the fact that the use of marijuana for these symptoms remains controversial does not, in itself, relieve the Insurer of its obligation to cover the costs of such treatment, provided that TN can establish that these are reasonably required as a result of the accident.
However, even if it could be said that the Insurer has established a prima facie case that the use of marijuana is experimental in nature for TN's symptoms, The Arbitrator found that the evidence as a whole rebuts this presumption. The Arbitrator accepted Dr. MM's evidence that marijuana is now understood as a legitimate option in the treatment of pain. Dr. AF only stated that marijuana is not "conventionally used" within neuropsychiatry and that it "should be considered" experimental. In the Arbitrator’s view, the fact that something is not conventionally used within the general field of neuropsychiatry (or, as Dr. CC put it, that it has not been approved by the relevant governing bodies) is not synonymous with it being experimental in respect of all of a person's symptoms in a particular case. This, to a certain extent, is borne out by the fact that, despite his concerns about TN using marijuana, Dr. AF supported a supervised therapeutic trial. Dr. AF was not ruling out marijuana as a legitimate treatment option; he was simply suggesting that there are risks in taking such a course of action in this particular situation, and that TN's progress had to be closely monitored. In the Arbitrator’s view, however, the fact that there are risks in a particular treatment modality does not mean that it is experimental. As noted by Dr. AF, TN does not appear to be suffering from the more serious side-effects of marijuana use. The Arbitrator found that prescribing TN marijuana was a viable treatment option and, in her particular circumstances, not experimental.
The issue now is whether TN's continued use of marijuana is reasonable and necessary. The Arbitrator accepted TN's uncontroverted evidence that marijuana, as opposed to the other prescribed medications, is helpful to her. He also accepted Dr. MM's and Dr. AF's evidence that the more conventionally prescribed medications carry significant risks, and that TN's use of marijuana may, in fact, be beneficial. The Arbitrator found that TN's use of marijuana is reasonably required in the circumstances. Dr. AF supports a three-month trial of marijuana. However, TN has already been using it for a much longer time. What TN is really seeking is entitlement to the costs of ongoing marijuana use. Based on Dr. AF's evidence, there continue to be significant risks for TN using marijuana. However, the Arbitrator saw no basis upon which to limit TN's entitlement. The key, as noted by Dr. AF, is that her progress be closely monitored by Dr. MM. He is qualified to assess whether TN's use of marijuana is no longer beneficial, or has become harmful, to her. The Arbitrator found that TN is entitled to the reasonable costs of her marijuana use from the date of the first treatment plan, namely, March 27, 2007.
TN sought entitlement to $1,200 per month for marijuana. This was based on an estimate of the cost of purchasing marijuana from the street. However, the Arbitrator agreed with the Insurer that TN's entitlement should be based on the amount set out in the treatment plan, namely, $567.60 per month, which, in turn, is based on purchasing marijuana through the regulated system of the Toronto Compassion Centre.