July 21, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Tierney, H.,M.,K. and NORTH WATERLOO FARMERS
Attendant Care Benefits: Economic loss demonstrated; potential future income lowered due to accident consequences;
Date of Decision Date: May 25, 2017
Heard Before: Adjudicator: James Robinson
Haylee Tierney, Michael Tierney and Keegan Tierney, were injured in a car accident on March 17, 2013. They applied for SABs from North Waterloo and applied to FSCO when disputes arose. Before the hearing began the parties had agreed to a partial settlement with regard to the quantum of the benefit.
The issue in this hearing is:
- Was an attendant care claim “incurred” with respect to these applicants, pursuant to 2010 Schedule, because Ms. Jocelyne Wilson sustained an economic loss as a result of the accident?
- An attendant care claim was “incurred” with respect to each applicant, pursuant to the Schedule, because Ms. Jocelyne Wilson sustained an economic loss as a result of the accident.
The applicants are the minor children of Jocelyne Wilson, who is their custodial parent. On the day of the accident the applicants were seat-belted passengers in their father’s van when he was involved in a serious motor vehicle collision. Michael Tierney (known as “Hunter”) was eleven years of age, Keegan Tierney was seven and Haylee Tierney was six.
The sole matter of the hearing apart from the issue of expenses, was the issue of entitlement and, in particular, the question of whether the applicants could satisfy the onus upon them to show that their mother, in providing attendant care, had sustained an economic loss as a result of the accident.
The Arbitrator determined that the parties, by entering into a partial settlement on the issue of quantum, also removed from consideration the question of continuing economic loss, thus if the Arbitrator finds that the requirements of subsection 3(4) have once been met, that will be determinative of the issue of liability. The effect of the partial settlement is to create a tripwire which, if triggered, will result in the agreed awards.
The injuries suffered by the children were severe. Hunter suffered a broken nose, a chipped tooth and a broken arm, and significant psychological injuries. He has had a subsequent episode of self-harm associated with the aftermath of the accident. Haylee suffered a concussion, dental injury with tooth loss and complicated deep facial lacerations requiring 57 stitches to close. She continues to suffer emotional problems, including but not limited to regressive behaviour. Keegan is catastrophically impaired. He suffered left side facial and scalp injuries, and experiences continuing headaches, finger numbness and dental pain. His psychological injuries also include irregular and regressive behaviour.
Jocelyne Wilson, who is the mother of the three minor applicants and the provider of their attendant care, was the sole witness at the hearing. Ms. Wilson is the primary custodial parent of the three children. Although the children’s father has generous rights of access, he does not always fully exercise them on the weekends or holidays. It does not appear from the available evidence that he paid child support. The Arbitrator was satisfied on the available evidence that Ms. Wilson, in the post-accident period, was for all practical purposes the exclusive caregiver for the children
The regimen for child care in the immediate post-accident period was a demanding one. Immediately after the accident the children required around-the-clock attention. Duties included administration of medications and dealing with the aftermath of bed-wetting meaning that care was required through the night for all three applicants. There was abundant evidence to confirm the children’s ongoing needs for physical, social and psychological aid and support.
Invoices for attendant care prepared and submitted by Ms. Wilson were prepared retroactively, using the retrospective Form 1 documents as aides-memoire. Errors of duplication and repetition were identified and freely admitted in her cross-examination. The invoices themselves have limited evidentiary significance since the issue of the quantum of benefit had been settled by the parties.
In order to understand the applicants’ case for economic loss, it will be necessary to outline briefly the employment history of their caregiver. Ms. Wilson is a high school graduate. Early in her adult life she trained as a Personal Service Worker but became pregnant with her first child and never worked professionally in that field. Later, in early 2004, she began work with Starwood Resorts as a call centre employee. At first this was essentially minimum-wage employment but Ms. Wilson succeeded well at the work and was ultimately assigned to a more responsible, second-tier position dealing with escalated calls. She also received merit-based pay increases.
In September 2012 Ms. Wilson when she left Starwood Resorts she was earning $13.00 an hour. Ms. Wilson, pursuing a vocational ambition, began a course of training at Westervelt College. It was her expectation that upon graduation from her one-year program she would obtain a job in a hospital setting as a medical records administrator. Her preliminary research had satisfied her that the demand existed, that a co-operative placement in a hospital would be available, and that Westervelt had a high success rate in placing its graduates. She testified that the salary expectations for such a position were more than $20.00 an hour. To undertake this training, Ms. Wilson applied for and received a student loan from the Ontario Student Assistance Plan (OSAP). The accident happened in the final months of this program.
North Waterloo Farmers suggested that Ms. Wilson’s attendance and academic record did not suffer unduly in the aftermath of the accident. The evidence of this was not unequivocal, however, Ms. Wilson’s evidence was that because of the accident she was compelled to take a cooperative job placement with a local medical practitioner in St. Thomas, close to her home and to her children’s school. It offered flexible hours so she could take her children to appointments with doctors and social workers and to their extra-curricular activities. There was ample evidence that this was exactly what she did during that period. Ms. Wilson’s evidence was that because she was compelled in the aftermath of the accident to take this inferior job placement, she suffered an economic loss.
Ms. Wilson’s testimony was that a cooperative placement in records management at a London region hospital or health facility would have been available to her in 2013 through Westervelt College as part of her program. Her testimony on this point was unambiguous and uncontradicted. Her evidence was that such a placement represented the very opportunity for which she had planned and strategized in enrolling in this program. She testified that not only was such a placement available but that Westervelt students had a high success rate in securing full-time employment after graduation from the institutions where they had been placed. That evidence was unchallenged by North Waterloo Farmers. Ms. Wilson’s submission was that her economic loss crystallized when she was compelled, by virtue of the attendant care needs of the children, to accept a career placement in a small-town medical office rather than in a hospital or health facility in the greater London area.
Ms. Wilson also had OSAP loans which became repayable commencing six months after completion of an academic program. At least twice in her testimony Ms. Wilson referred to the pressure she was under from OSAP in late 2013 to begin repayment. She identified this as an important factor in her approach to Drake Personnel when she finally returned to the workforce after the children’s accident. Throughout her testimony Ms. Wilson’s tone of desperation on the subject was evident. It was clear that she urgently needed to find employment that could offer her flexible hours in order that she could both care for her children and commence repayment of her OSAP loans.
North Waterloo Farmers argued that there was a deficiency in the evidence because, for instance, no labour market surveys were adduced to show that employment as a medical records administrator was even available in the area at that time. On that argument, the best employment available to Ms. Wilson was the job that she actually ended up taking when she eventually returned to her job as a call-centre employee with Starwood.
The Arbitrator reviewed previous decision, the regulations and the evidence and determined that on the basis of the available evidence and on the balance of probabilities that Ms. Jocelyne Wilson suffered an economic loss within the meaning of subsection 3(7)(e)(iii)B of the Schedule. The nature of the loss was twofold. First, she lost the ability to obtain a placement through Westervelt College as a medical records administrator. She credibly testified that such a placement would have been available to her and that, had she been able to take it, would likely have led to an offer of employment. There was nothing in the available evidence to suggest that Ms. Wilson would not have succeeded in doing so, had the accident not occurred.
Second, Ms. Wilson’s losses were not purely a matter of opportunity cost. She had financed her training by incurring an Ontario student loan through OSAP. She therefore had the burden of repaying the loans while having lost the opportunity to improve her financial circumstances by obtaining more remunerative work than that of a call-centre employee. It was evident from the summary income tax returns filed in evidence that Ms. Wilson had commenced repayment of her OSAP loans. She was therefore in a position, as a direct result of the accident, which was materially worse than she had been before she commenced her studies. This was an economic loss consistent with the principles enunciated in the Henry and Simser decisions.