J.K. Applicant and Wawanesa Mutual Insurance Company Insurer FSCO A10-001397

The Applicant J.K. endured a serious motor vehicle accident in 2008. During approximately four years of rehabilitation, a dispute arose between the insured and Wawanesa, the insurer, in 2011, regarding the amount of attendant care benefits entitled. Mediation failed and led to this arbitration at the Financial Services Commission of Ontario.

On August 13, 2008, while in his vehicle, J.K. was struck by another vehicle moving at high speed. The collision rendered J.K. unconscious, with serious bodily injuries as well as harrowing brain trauma, resulting in a coma. J.K. was flown immediately to St. Michael’s Hospital in Toronto, where he remained for a few days until he woke from his coma. J.K. exhibited periods of amnesia both pre and post-accident. In September 2008 he was transferred to St. John’s Rehabilitation Hospital to recover, and in November 2008 he underwent plastic surgery to repair his face. In early December 2008, J.K. was transferred to the Toronto Rehabilitation Institute (TRI) until being released to his parents before Christmas 2008.
There was no dispute as to the severity of injuries sustained in the accident. The insurer agreed that the accident met their classification of “catastrophic impairment” and thus increased coverage to the maximum allowed per month, $6,000. The dispute of the parties involves the duration of the attendant care requirements of J.K. over the four years since the accident.
The insurer paid the maximum amount of $6,000 from September 2008 to March 2009. After which the amount was reduced to $3,000 from April 2009 to July 2009, and then reduced to $2,132 paid per month since. The insurer based its opinions upon the reports of its occupational therapists.
J.K. claims that he is entitled to the full $6,000 per month based upon the evidence he presented. The evidence consisted of reports and testimony from the occupational therapists, health care records, and testimony from J.K., his father, his girlfriend (Melissa), and his social worker.

Wawanesa argues that J.K.’s attendant care needs are the result of his post-accident drug use and that the accident and its related traffic charges merely intervened and helped to increase his need for attendant care.
J.K. does not dispute his drug use before or after the accident. Pre-accident he acknowledges the recreational use of marijuana, cocaine, and alcohol. Post-accident, with the support of evidence, he admits to a more serious, frequent and escalating abuse of narcotics, in particular prescription pain narcotics beginning November 2008 to deal with accident-related pain, anxiety and depression.
The insurer argued that J.K.’s situation is different than the case of McMichael and Belair Insurance Company, where the insurer was found to be responsible to pay for the “catastrophic impairment” level of increased coverage. It was decided that the McMichael case was not different, and that in both cases the insured changed as a result of the accident. J.K. began his serious and regular drug use as a result of the accident.

From J.K.’s release from hospital in December 2008, a personal support worker cared for him until March 2009, after which time his parents cared for him. J.K. continued with physical and speech therapy, computer instruction, counseling and an exercise program.
In September 2009, J.K. began his relationship with Melissa. She moved in with him at his parent’s home in March/April 2010 and promptly took on a key supportive role. J.K.’s social worker described J.K.’s support needs as unpredictable if not for Melissa’s constant support. J.K. had limited mental functionality, lack of motivation, and great frustration at his reduced capabilities.
In 2010, J.K. was in residence at the Neurologic Rehabilitation Institute of Ontario (“NRIO”) to try and restore some of his lost capacities. J.K. also sought help in regular attendance at Narcotics Anonymous to help control his drug habits.
In September 2011, J.K. started courses in Georgian College, which accommodated his learning disabilities, to obtain certification as a gas technician.

There were three FSCO precedents considered:
Ryan and ING Insurance Company of Canada and Mr. S. and Economical Mutual Insurance Company both decided that around the clock care would be rejected.
T.N. and Personal Insurance Company of Canada accepted that the insured would need constant supervision.
All three precedents primarily referred to the personal risk of the insured, and whether constant supervision would be required. All three precedents also made mention of the scheduling of supervised activities and the balance required to make it work.
The arbitrator then interpreted the precedents and summarized:
“…the assessment of the need for supervisory care should exclude attendant care services that can be quantified under other categories and then:
Evaluate the applicant’s current safety risk using a historical perspective;
Compare the reasonably effective methods to contain and/or reduce safety risks;
Determine the frequency and time estimates for supervisory services in conjunction with other attendant care;
Relate the estimates to the need for continuity of supervision”

It was decided that Wawanesa shall pay J.K. $6,000 per month from April 1, 2009 to March 31, 2011, and $2,132 per month from April 1, 2011, less the amounts already paid.
It was also decided that Wawanesa shall pay interest on all overdue amounts.
In addition, the arbitrator urged the parties to work together to periodically re-examine J.K.’s progressing needs.
Special mention was also made as to J.K.’s great and persevering achievements.

Michael Yen is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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