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FSCO A06—000028

BETWEEN:TYVON WHYTE

Applicantand

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD’SInsurer

REASONS FOR DECISION

Before: Rosemary Muzzi

Heard: December 11, 12, 13 and 14,2006, at the offices of the Financial Services Commission ofOntario in Toronto.

Appearances: Sheldon, L. Kasman arnj Beverly Bly for Mr. WhyteJ. Claude Blown for Non-Marine Underwnters, Mbrs. of Lloyd’s

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~inancial Services Commission of Ontario Page 2 of 8

Issues:

Tyvon Whyte, the applicant, was struck by a motor vehicle as a pedestrian on October 30, 2001. He wassix years old. He was determined to have suffered a catastrophic impairment as a result of the accident.He applied for, and continues to receive, myriad benefits from Non-Marine Underwriters, Members ofLloyd’s, the insurer of the striking vehicle, including attendant care benefits in the amount of $765 permonth. From November 23, 2004 and ongoing, Tyvon claims amounts for attendant care that exceed themonthly amount being paid by Lloyd’s. Essentially, the additional attendant care benefits Tyvon claimsare for his attendant care provider, Vicki Mae Lewis, who is also his mother, to provide him withsupervision all the time he is not otherwise supervised. The basis of his claim for attendant care is thathis impairments as a result of the accident have caused such impulsivity and unpredictability requiringthat he be supervised at all times. Lloyd’s, on the other hand, asserts that some of the supervisionprovided to Tyvon by his mother is in the nature of the regular parenting provided by every parent toevery child of Tyvon’s age and that therefore attendant care benefits are not appropriately paid for suchcare.

The parties were unable to resolve this dispute, and others, through mediation and Tyvon applied forarbitration at the Commission.

The particular issues in this hearing are:

1. Is Tyvon entitled to attendant care benefits in the amount of $1760.81 from November 23, 2004 toJuly 26, 2006 and $3024.26 from July 27, 2006 and ongoing, as recommended by Ellen Lipkus anddetailed by her in two Forms 1?

2. Is Tyvon entitled to receive the increased hourly amounts for attendant care that are in force with theamendments to the Schedule as of March 1, 2006?

3. Is Tyvon entitled to $3150.61 for the cost of a vocational assessment dated August 31, 2005conducted by David Antflick?

Result:

1. Tyvon is entitled to attendant care benefits in the amount of $1760.81 from November 23, 2004 toJuly 26, 2006 and in the amount of $3024.26 from July 27, 2006 and ongoing, less amounts credited toLloyd’s for the time when Tyvon was otherwise supervised. I remain seized of this issue in the event thatthere are any unresolved disputes respecting the quantum of attendant care benefit.

2. Tyvon is not entitled to be paid the higher amounts for attendant care that are in force as of March 1,2006 with the amendments to the Schedule.

3. Tyvon is not entitled to $3150.61 for the cost of a vocational assessment datedAugust 31, 2005 conducted by David Antflick.

Is Tyvon entitled to the increased monthly amounts of attendant care that he claimsfrom November 23, 2004 and ongoing?

The Attendant Care Benefit

The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf

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Financial Services Commission of Ontario Page 3 of 8

of the insured person as a result of the accident for services provided by an aide or attendant. [See note1 below] Because Tyvon is catastrophically impaired, the maximum monthly attendant care benefitavailable to him is $6000. [See note 2 below]

The monthly amount payable by the attendant care benefit is to be determined in accordance with aForm 1. [See note 3 below] There are three different types of care that qualify as attendant care andthey are each outlined in the Form 1 and referred to as “levels.” The levels are differentiated by the kindof skill required to perform that type of attendant care, and, based on that, an hourly rate of pay isassigned. The Form 1 focuses the attendant care assessor on determining the number of minutes requiredfor each specific level of attendant care.

Note 1: Section 16(2)(a) of the Schedule

Note 2: Section 16(5)1.ii

Note 3: Section 16(4) of the Schedule

The Parties’ Submissions

In Tyvon’s case, the parties disagree about the number of minutes that are required for level 2 attendantcare. Level 2 attendant care is comprised of the basic supervisory functions that must be provided to theinsured person. For example, level 2 attendant care incorporates the supervision that must be providedfor ventilator dependent applicants, applicants with spinal injuries and, as is the case here, applicantswith severe brain injuries. The Form 1 describes “applicants with severe brain injuries” as “the clientlacks the ability to respond to an emergency or needs custodial care due to changes in behaviour.”

Ellen Lipkus’ Forms I indicate that for the period from November 2004 to July 2006, Tyvon requires2020.2 minutes (33.6 hours) per week of supervision by his mother and for the period from July 2006and ongoing, he requires 3829 minutes (63.7 hours) per week. With respect to this latter period, the 3829minutes (63.7 hours) per week does not take into account the deduction for the time that Tyvon would bein school. Apart from this, these weekly amounts essentially comprise all of the time in a week thatTyvon is otherwise not supervised.

Tyvon argues that Ellen Lipkus’ assessments are more reliable and informed because she has spent moretime with Tyvon and she knows both him and his mother well. Ms. Lipkus’ conclusions are essentiallythat Tyvon’s mother needs to be on call to deal with whatever the nature and frequency of his outburstsmight be; his impulsivity and unpredictability are the problems here. As long as he has frontal lobedamage, both Tyvon’s moods and behaviour will swing. Furthermore, Tyvon argues that the DAC’smethodology is erroneous in a case where the need is for constant supervision. The nature of thesupervision required with Tyvon is always over and above that provided by the parent of a regular child.Tyvon’s mother’s duty towards Tyvon is not like that of a regular parent. When three professionals placeon her a duty to provide supervision and care during all waking hours, she is bound to behave differently

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than a regular parent of a regular child.

Lloyd’s, on the other hand, supports the conclusions of the Attendant Care DAC assessors who concedethat Tyvon requires extra supervision for management of his behaviour but whose Form 1 indicates that,over the course of a week, the extra supervision amounts to 629 minutes (10.5 hours). Lloyd’s assertsthat the DAC assessors properly calculated the necessary attendant care as they divided up the time in aday and separated it into the time Ms. Lewis must devote to the special supervision and direction thatTyvon requires as a result of his impairments, and the time that she provides the regular supervision anddirection that is required to care for and supervise any child of Tyvon’s age.

In Lloyd’s view, Ms. Lipkus’ approach does not seem to focus on what is truly an attendant care needcompared to that which is needed by a child in general. On the other hand, the DAC assessors didspecifically identii~’ the areas where additional supervision is required for Tyvon. In Lloyd’s view, theDAC approach is more reasonable because it recognizes that regular parenting, which must still beprovided in Tyvon’s case, is less hands-on than is attendant care and is not to be compensated throughattendant care benefits. Furthermore, Lloyd’s stresses that a call by Tyvon’s various service providers formore support and ongoing, constant supervision does not necessarily mean that non-stop attendant careis required.

Finally, Lloyd’s contends that, of necessity, Ellen Lipkus’ role is that of an advocate for Tyvon, given herjob as his case manager, and therefore an inference should be drawn that her evidence is not impartial.

Facts

There is no controversy about Tyvon’s impairment; he is a brain-injured child and there was alsoevidence before me that he has been diagnosed with ADD related to the brain injury. Most of theevidence tendered at the hearing focused on the effects this injury has had on Tyvon’s daily functioningand activities.

Again, I would say that with respect to those effects, the evidence before me was largely consistent anduncontroverted. As a result of his injury, Tyvon has a whole host of limitations:

• learning difficulties• compromised executive functioning• behavioural issues and a vulnerability to peers• an inability to process the difference between right and wrong• recurrent verbal and physical aggression and unsafe behaviour (there were a couple of episodeswhere he choked other children; in 2005 there were sexual overtones to the escalation in hisbehaviour; he has been aggressive to his child and youth care worker, Doug Crozier.• unpredictability and impulsivity (he has demonstrated some suicidal ideation)• discipline problems (Tyvon has been suspended from school on a few occasions due to hisbehaviour)

While the DAC assessors did not witness any of the extreme behaviour outlined, they only spent aportion of a day assessing Tyvon’s needs and the situation in which he and his mother live. They spentmost of their time with Ms. Lewis. It is entirely possible that they would not have witnessed Tyvon’schallenging behaviour given that the very nature of his impairment results in his behaviour being erraticand unpredictable. The fact that they did not witness one of his outbursts or his behavioural problemsdoes not lead me to question all of the other consistent evidence of Tyvon’s issues.

I am also struck by the uniform evidence provided by the various members of Tyvon’s rehabilitation

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team about the need for continuous supervision. In particular, Dr. Rincover, Tyvons formerpsychologist, testified that an absence of supervision with Tyvon seemed to lead to high risk behavioursand other behavioural problems and that he needed to be watched at all times for his own safety and thesafety of others. Mr. Crozier spoke of the need to provide direct supervision to Tyvon at all times whenwith him at school. In fact, at one point the school required that Tyvon be supervised at all times.Further, Mr. Crozier reported that more incidents of aggression occurred before he began working withTyvon in the school setting. Dr. Alma Kaminska, a neuropsychologist, testified that it was impossible topredict when Tyvon’s outbursts would occur and agreed that he and others were at risk when he was inthis state. She concluded that, up to this point, there had been no progression in Tyvon’s ability to beindependent.

Moreover, the evidence was also that much time and effort has been devoted to, and continues to bespent, training Ms. Lewis to provide supervision and direction appropriate to Tyvons particular needsbecause his behavioural issues require specific behavioural management strategies. A lot of Dr.Kaminsk&s intervention has been to provide Ms. Lewis with support and management and parentingstrategies for Tyvon. Mr. Crozier has worked with Ms. Lewis as has Tyvon’s social worker, Jim Pesant.

The DAC assessors, an occupational therapist and a registered nurse, concluded that he did requireadditional supervision compared to other children his age without the same impairments.Understandably, in order to deal with the practical problem of having to assign actual time to this task ofadditional supervision, the assessors relied upon the reports of Ms. Lewis. While the reports of Ms.Lewis to the DAC assessors are in some cases at odds with her oral testimony, good portions of herevidence were consistent and I find that information conforms to the other evidence before me aboutTyvon’s behaviour. Ms. Lewis testified that Tyvon gave her no trouble before the accident whereas nowshe is unable to have a life of her own as she is taking care of him all of the time. She described havingto sit with him to ensure that he eats, having to get him from school because he has misbehaved, havingto spend all of the weekend with him, having to cue him constantly because he always does things he isnot supposed to do.

Furthermore, it is clear from the evidence that Tyvon’s impairment has indeed resulted in his need formuch assistance with his daily activities, some of which is covered by benefits paid by Lloyds:

• While he attends a regular elementary school, Tyvon is in a special education class for half a dayeach day• Tyvon sees a psychologist on a regular basis• Tyvon takes prescription medication to treat and control his ADD, to assist him to sleep, etc.• Tyvon has a child and youth care worker, Doug Crozier, with whom he spends 3 full-days and 2half-days per week at school• Tyvon is assisted by a speech language pathologist• Tyvon and his mother are assisted by a social worker• Tyvon has the regular input of his case manager, Ellen Lipkus, to coordinate all of his care andtrack his progress.

In my view, the question that must be answered in order to adequately determine the amount of attendantcare that Tyvon needs is what is the nature and degree of supervision that Tyvon requires? It is theanswer to this question that determines the amount of attendant care that is necessary.

I find that the evidence is compelling and leads inevitably to the conclusion that Tyvon requiressupervision that is continuous and vigilant. The evidence of Tyvon’s treatment and rehabilitation teammembers is completely consistent in respect of the circumstances during which he requires supervisionand the amount of supervision he needs. They are unanimous that he cannot be left alone to handle

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situations on his own, both to ensure his safety and that of others but also because his impairment andhis rehabilitation demand the management of his behaviour in virtually all circumstances. Managementof behaviour requires active supervision that includes cueing and correction of behaviour andencouragement.

I agree with Dr. Kaminska that the provision of this kind of supervision requires the uninterruptedavailability of the parent to respond as the need arises rather than the intermittent supervision that wouldsuffice with an unimpaired child of similar age.

For these reasons, I find that the manner in which Ellen Lipkus calculated the necessary attendant care iscloser to the truth of the situation in Tyvon’s case. In fact, a closer examination of the DAC’s approach tothe calculation of attendant care time, and the implications of that approach, also leads me to concludethat Ms. Lipkus’ approach is the only rational way in these circumstances to calculate attendant care.

While the DAC assessors made a valiant attempt to calculate the additional time needed havingconsideration to all of the evidence, there are some significant implications to their approach which arenot accounted for nor recognized. For example, their approach was to assign an extra minute, orwhatever other amount of time was determined additionally necessary, for every 5 to 10 minuteincrements of an hour. This method is awkward at best and, at worst, is artificial and impossible toimplement on a practical level. One cannot pay an attendant care provider for a minute of their timeevery 5 to 10 minutes of the day. Beyond this, even if one could find a way to pay for a serviceprovider’s time in this way, the result would be that the service provider could not be available to do anyother work — there are very few activities or tasks that one can accomplish in 5 to 10 minute increments

and this, in my view, is exactly Tyvon’s case. In order to provide the kind of attendant care that Tyvonreally needs, a service provider must be available to him so frequently and in such a way that they arepractically prevented from being engaged in any other real activity.

Therefore, Tyvon is entitled to attendant care benefits as they have been calculated by Ellen Lipkus inher two Forms 1, in the amount of $1760.81 from November 23, 2004 to July 26, 2006 and in theamount of $3024.26 from July 27, 2006 and ongoing, less amounts credited to Lloyd’s for the time whenTyvon was otherwise supervised.

Is Tyvon entitled to be paid the higher amounts for attendant care that are in force as ofMarch 1, 2006 with the amendments to the Schedule?

As of March 1,2006, the hourly rates for the different levels of attendant care have been increased. Withrespect to Level 2 services, in particular, the rate is now $7.75 per hour. The applicable new Form I(now simply called an assessment of attendant care needs) states in its introduction:

Use this form to report the future needs for attendant care required by the applicant as a result of anautomobile accident on or after March 1, 2006.

Tyvon asks that guidance be provided with respect to the application of the new rates for attendant carein his case. Further, Tyvon asserts that Lloyd’s was obligated to begin paying the attendant care benefitsas indicated within 10 days of receiving his most recent Form 1 as it failed to provide the responserequired by the amended section 39 of the Schedule.

Lloyd’s argues that in March 2005, there was a pending dispute regarding the amount of attendant carebenefits payable in Tyvon’s case. As indicated by the Schedule at the time, Lloyd’s was bound by theDAC conclusion pending resolution of dispute. The application for arbitration in this case was filed inJanuary 2006. Lloyd’s asserts that once the parties were engaged in the dispute resolution process,

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further applications for the same benefit need not have been considered, nor could Lloyds have beenbound by a whole new set of rules for the processing of those applications. The whole point of thedispute resolution process is to reach a conclusion about how these very benefits were to be paid.Further, Lloyd’s asserts that an examination of the Superintendent’s Bulletin on this point clarifiesmatters. The Bulletin issued with respect to New and Revised Accident Benefit Claims Forms indicatesthat the Form 1, Assessment of Attendant Care Needs, is no longer printed as part of the Schedule. Arevised version ofthisform with updated hourly rates will be usedfor accidents on or after March],2006. (my emphasis)

The plain meaning of these words appears to be that the revised form with its updated hourly rates is tobe used for accidents on or after March 1, 2006 not benefits claimed on or afterMarch 1, 2006. Tyvon’s accident occurred on October 30, 2001. I am not satisfied that either the newrates and/or the new provisions of the Schedule are applicable in the circumstances of Tyvon’s case.

Is Tyvon entitled to $3150.61 for the cost of a vocational assessment dated August 31,2005 conducted by David Antflick?

Tyvon argues that he should receive payment of the expense of a vocational assessment conducted byDavid Antflick and dated August 31, 2005 because the assessment speaks to the need for Tyvon’ssupport mechanisms and ongoing rehabilitation. The assessment report assisted Lloyd’s in determiningTyvon’s vocational needs and was therefore not premature.

Lloyd’s argues that this assessment is not about an issue compensable within the scheme of the Scheduleas it is meant to deal with the type of education Tyvon would have been able to achieve had he not hadthe accident, and the type of education or employment he will achieve in the future. In addition, theexpense was submitted for pre-approval and sent to a fast track DAC [See note 4 below] and the DACfound it not reasonable and necessary as an educational planning assessment had recently been done inTyvon’s case.

Note 4: (Exhibit 23)

I agree with the conclusions of the DAC and, in fact, had very little evidence before me that a vocationalassessment at this stage is appropriate especially where an educational planning assessment had recentlybeen done. Further, I agree with Lloyd’s that this particular assessment does not appear to deal directlywith a statutory accident benefit and it is therefore not reasonable and necessary in the circumstances.

EXPENSES:

The parties did not address the issue of expenses. I encourage the parties to resolve their claims forexpenses. Should they be unable to do so, they may request an assessment of expenses before me inaccordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated — October2003), no later than 30 days after the date of the receipt of this decision.

I II lIJune 14, 2007 II II II I

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.Financial Services Commission of Ontario Page 8 of 8

Rosemary Muzzi DateArbitrator I

ESCO A06—000028

BETWEEN:VON WHYTE

Applicantand

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD’SInsurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Non-Marine Underwriters, Mbrs. Of Lloyd’s pay attendant care benefits in the amount of $1760.81per month from November 23, 2004 to July 26, 2006 and in the amount of $3024.26 per month fromJuly 27, 2006 and ongoing, less amounts credited to Lloyd’s for the time when Tyvon Whyte wasotherwise supervised, and less amounts already paid by Lloyd’s for attendant care on a monthly basisduring the periods affected by this Order

I II liJune 14, 2007Rosemary Muzzi DateArbitrator

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