Neutral Citation: 1996 ONICDRG 106

OIC A-013947

ONTARIO INSURANCE COMMISSION

BETWEEN:

MS. B

Applicant

and

NON-MARINE UNDERWRITERS, MEMBERS OF LLOYDS, LONDON, ENGLAND

Insurer

DECISION

Issues:

The Applicant, Ms. B, was injured in a motor vehicle accident on June 16, 1991. She applied for and received statutory accident benefits from Non-Marine Underwriters, Members of Lloyds, London, England ("Lloyds"), for the period June 22, 1991 until January 25, 1994 payable under Ontario Regulation 672.¹

On the fifth and final day of the proceeding, the parties advised me that they had settled their disputes under section 12(1) and section 6 of the Schedule.

Lloyds agreed to pay Ms. B further weekly income benefits pursuant to section 12(1) until June 22, 1994. The issue of weekly income benefits from June 23, 1994 onwards under section 12(5)(b) of the Schedule remains in dispute. Ms. B also seeks a special award under section 282 (10) of the Insurance Act.²

The issues in this hearing are:

Is Ms. B entitled to weekly income benefits under section 12(5)(b) of the Schedule for any period from June 23, 1994 onwards?
Is Ms. B entitled to receive a special award under section 282(10) of the Insurance Act?³

Ms. B also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

Ms. B is entitled to of weekly income benefits from June 23, 1994 onwards under section 12(5)(b) of the Schedule.
Lloyds shall pay Ms. B a special award in the sum of $5,000.00 inclusive of interest.
Ms. B is entitled to interest in the amount of 2% per annum on any amounts outstanding.
Ms. B is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code.

Hearing:

The hearing was held in Barrie, Ontario, on October 30, 31, November 1, 1995 and continued in North York Ontario on November 20 and 21, 1995, before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

Ms. B (on October 30, 1995 only)

Applicant's

Paul Jewell

Representative:

Barrister and Solicitor

Insurer's

Graeme Mew

Representative:

Barrister and Solicitor

Witnesses:

Ms. B

Ms. B's aunt ( Ms. L.T)

Dr. Carol McMaster

Dr. John McCall

Dr. M.C. McTavish

Dr. M. Weber

Ms. Mary Patricia Roe

Dr. M.S. Macartney-Filgate

Ms. B's mother (Mrs. D)

Exhibits:

58 exhibits were filed in this proceeding and detailed in the Exhibit's List made at the time of the hearing.

A. ENTITLEMENT:

Background:

Ms. B was born in 1968. She married for the first time in 1989 and separated in 1990. She married her second husband in 1993 and separated in 1994. Ms. B presently resides with her daughter who was born in 1994.

At the time of the accident on June 16, 1991, Ms. B was working full-time for Company A where she worked on an assembly line making seatbelts. At the same time she worked as a receptionist for Company B performing budgeting, typing, and computer work.

Since the accident on June 16, 1991 Ms. B has not returned to work. Ms. B claims further weekly income benefits from June 23, 1994 onwards.

Applicable Law:

If Ms. B is to be to be successful in her claim for weekly income benefits for any period after June 23, 1994, she must establish that the injury from the motor vehicle accident continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience, pursuant to section 12(5) of the Schedule.

In the case of Singh,⁴ with which I agree, Senior Arbitrator Naylor (as she then was), stated that arbitration decisions do not create a rigid rule that is applicable across the board, and that each case turns upon its own facts: the issue is what can an applicant reasonably and realistically be expected to do, given her background and individual circumstances.

The Accident and its aftermath:

On June 16, 1991, Ms. B was driving her Fiero GT in the early morning hours during a severe rainstorm. Her vehicle struck an animal and flipped over. This was a serious accident; the vehicle was a total loss. Ms. B hit her head on the steering wheel and door of her car. She was driven to the local hospital by her boyfriend at the time.

The emergency report confirmed that Ms. B might have suffered a loss of consciousness and amnesia. It also noted that Ms. B had a headache and sore neck. The final diagnosis was "head injury." A later report from the hospital, diagnosed Ms. B as having a mild concussion and concluded that Ms. B had banged the left temporal area of her head.

Ms. B confirmed in her testimony that immediately after the accident her head had a lump on it, her scalp was tender to the touch, and she remembered clear liquid coming from her nose and ears. This latter fact was confirmed by her mother Mrs. D.

Ms. B also experienced pain in her shoulders, lower back, left leg and arm. She suffered from serious debilitating migraine headaches, nausea, dizziness, blurry vision and pain behind her left eye and in her left ear. She had difficulty closing her mouth due to a dislocated jaw, and had nasal obstruction. In addition, she experienced memory loss, comprehension problems, and changes in her personality and emotions. These difficulties left her unable to cope. In addition, she had problems sleeping, and she was easily distracted.

Ms. B's mother, Mrs. D, confirmed that just after the accident, her daughter's pupils were dilated, she was bruised around her eyes and on her shoulder, she was vomiting, she had a serious headache and was in extreme pain.

Ms. B stayed with her parents for eight weeks after the accident. During several of these weeks Ms. B stayed in a darkened room as her eyes were sensitive to the light. Ms. B experienced daily headaches and her personality changed to that of an angry, unmotivated individual.

Ms. B's migraine headaches, psychological, emotional and personality problems have continued up to the date of the hearing.

Employment history and education:

Ms. B has a grade 12 education. She has engaged in various forms of employment during the course of her life. As early as age nine, she helped out in the family business, cleaning boats, removing boat batteries, and doing yard work. While attending high school, she worked at Swiss Chalet and Harveys.

Ms. B graduated from high school with average marks. Over the next several years she held various jobs. She worked for a temporary placement agency which placed her in different office assignments. In these placements, Ms. B performed work in data entry, accounting, spreadsheets, telex, keyboarding and computer operation and computer systems operations. Prior to the accident, Ms. B knew numerous computer software programs and could type 100 words per minute.

Ms. B was employed for a short time as an assistant corporate manager, assisting clients with arranging mortgages, organizing the office and maintaining customer service.

Ms. B also worked as the manager of a mortgage company. She contemporaneously worked as a toning technician for a tanning salon, where she was responsible for the operation of the salon and its public relations.

At the time of the accident Ms. B was working at two jobs for Company A as a seat belt assembler⁵ and for Company B as a receptionist. Her work as a seat belt assembler involved repetitive movements of her hands, arms and upper torso. She was required to pick up parts, reach, and utilize small pneumatic hand presses, and she performed several tasks on the assembly line.

Ms. B was also a very talented artist who drew and painted murals, performed some minor interior decoration and had some interest in selling Amway products and Mary Kay cosmetics. She also occasionally assisted her grandmother at her restaurant and gas bar.⁶ Despite these interests, Ms. B did not earn much income from these activities.

Did Ms. B's injuries continuously prevent her from engaging in any occupation or employment for which she was reasonably suited by education, training or experience?

Ms. B. suffered from both physical and psychological problems after the accident. Dr. McTavish, Ms. B's family doctor, referred Ms. B, to several doctors for assessment of her injuries.

On July 17, 1991, Ms. B saw Dr. I. Melynk, an eye surgeon, complaining of periodic pain and difficulty seeing out of her left eye.⁷

On June 20, 1991, Ms. B saw her dentist, Dr. D. Neville who diagnosed her with fractured restorations and tenderness on the left temporal mandibular joint ("TMJ"). Dr. Neville referred Ms. B to Dr. James, an orthodontist specializing in TMJ therapy. Dr. James treated Ms. B for acute tenderness in her jaw joints. This therapy continued until February 19, 1992 at which time considerable improvement was noted.⁸

Later, in August 1991, Ms. B saw Dr. Libling, an ear nose and throat specialist. Dr. Libling diagnosed Ms. B with a deviated nasal septum causing nasal obstruction, which he felt might be related to the motor vehicle accident.⁹ Ms. B had surgery to correct this problem on February 6, 1992.¹⁰

Ms. B attended for chiropractic treatments at the Midland Chiropractic Clinic, commencing in January 1992. She saw Dr. W. Reg. Nicholson, a chiropractor at this clinic. In his report of January 20, 1992,¹¹ he confirmed Ms. B's complaints of pain in the cervical spine with rotation to the right, migraine headaches, low back pain, decreased range of movement in her lumbar spine which was intermittent, pain in her temporomandibular joint and shoulder pain. Dr. Nicholson confirmed that Ms. B suffered degeneration in her back at the C3-C7 and L5 levels. This degeneration was also confirmed in the report of Dr. J. McCall, an orthopaedic surgeon Ms. B saw on June 26, 1995.¹²

Despite Ms. B's spinal degeneration, Dr. Nicholson confirmed that by June 5, 1992, all Ms. B's range of movements were within acceptable limits, with the exception of flexion of her cervical spine. He suggested that Ms. B could return to normal activities.¹³

This evidence is consistent with Ms. B's own evidence that as time progressed, neither her back nor neck caused her any significant degree of discomfort. She testified that after her baby was born in April 1994, she was able to clean her house and do laundry, take her baby on walks, and go out swimming.

Accordingly, I find that Ms. B's neck and back did not cause her significant difficulties after April 1994.

Ms. B's major complaints were of ongoing and debilitating migraine headaches, problems with her memory and comprehension, changes in emotions and personality, distractibility, dizziness, nausea and difficulty sleeping. I find these complaints were serious and much more problematic for Ms. B than her orthopaedic injuries.

Ms. B testified that her migraines occurred four to five times per week, and it was necessary for her to lie down daily so as to minimize their effects. She testified that she took medication for these constant headaches. She indicated that her headaches had improved over the past year.

Ms. B complained about memory loss. She testified that she forgets to take her pills, and must write everything down. She stated that her mother (Mrs. D), her aunt (Ms. T) and father must constantly remind her.

Mrs. D confirmed that her daughter has had serious memory problems since the accident. Ms. B had to resort to the use of calendars and notes on her fridge to remember her appointments, her child's feeding times, and when medicine was to be administered to her child. Mrs. D confirmed that she takes time off work to help her daughter. She checks on her daily, and assists her with her laundry and other tasks around her house.

Ms. B also complained about changes in her personality and emotions. Ms. B testified that she cries very easily, especially when she cannot remember her past. She also testified that she "freaked" when the telephone rang and had "laughing fits."

Mrs. D confirmed that prior to the motor vehicle accident, her daughter was extremely independent, self-sufficient, motivated, stubborn and kept her house neat. After the accident, Ms. D stated that Ms. B was dependent, unpredictable, and inflexible. Her home was a mess. She stated that Ms. B now sleeps a lot, has no ambition, and cannot deal with stress or cope with her baby.

Ms. B confirmed that she suffers from dizzy spells and often feels disoriented. She noted that she smells burnt toast which makes her nauseous. At night she awakens easily, and receives insufficient sleep.

Dr. M.C. McTavish, Ms. B's family doctor for many years, testified on behalf of Ms. B. I found her to be a knowledgeable, credible witness. Dr. McTavish confirmed that Ms. B attended at her office shortly after the accident and monthly thereafter. Dr. McTavish kept detailed notes confirming Ms. B's post accident symptoms.

Dr. McTavish confirmed that Ms. B is unable to cope with the stress, emotion, and fatigue caused by her injuries. She confirmed that Ms. B's memory loss is significant, adding that Ms. B constantly forgets what she has said and done.

She confirmed that Ms. B has difficulty caring for, and coping with her child. She stated that Ms. B often forgets to bring her baby in for scheduled appointments and forgets to give her baby medication as may be required.

Dr. McTavish also confirmed that after the accident, Ms. B's personality changed. She noted that Ms. B exhibited a "flat affect" and was often hysterical. She is unable to stand irritating noise.

She has very little emotional control, has a tendency to confabulate and exaggerate, and is impulsive and easily led. She stated that Ms. B often acts like a learning disabled child. She confirmed that Ms. B also suffers from hallucinations where she sees images in her head of animals on the road, or smells toast burning. The degree of her emotions varies according to the stress she is under. In addition, the more pressure Ms. B puts on herself, the less she is able to function.

Dr. McTavish testified that she did not think that Ms. B would return to her pre-accident level although she noted that over time her memory might improve slightly.

Some time in September or October, 1991, Ms. B. was referred to Dr. V. Bril, a neurologist. Dr. Bril characterized Ms. B's concussion as having been severe, and concluded that Ms. B had a post-concussive stress syndrome, or post traumatic stress disorder. She advised Ms. B to continue with psychotherapy.¹⁴

On November 18, 1991, Ms. B saw Dr. Soriano, an orthopaedic surgeon. She complained of neck pain, intra scapular pain, headaches, occasional back pain, affected sleep, and anxiety. Dr. Soriano concluded that Ms. B did not sustain significant organic injuries, although she did sustain soft tissue injuries to her neck, left shoulder and low back. He felt that she was recovering satisfactorily from these. He confirmed that Ms. B's major problem was related to post-traumatic anxiety and depression from a cerebral concussion. He recommended a psychiatric and neurological assessment.¹⁵

On February 21 and 22, 1992.¹⁶, Dr. McTavish requested that Ms. B see Dr. W.G. Snow, a psychologist. In his report dated March 31, 1992,¹⁷ Dr. Snow reported that Ms. B's performance indicated the presence of neuropsychological ability impairment. She showed impaired manual dexterity as well as impaired memory, concentration, and recall of verbal material.

Dr. Snow also confirmed that Ms. B showed evidence of retrograde amnesia, her sleep patterns were variable, and she was anxious and depressed. Dr. Snow stated that Ms. B's test results "rais[ed] a question of cerebral dysfunction." He reported that Ms. B displayed cognitive deficits, the pattern of which was atypical for the usual head injury, and could be the result of a number of factors including stress, sleep loss, pain or residual cerebral dysfunction. In addition, Dr Snow opined that the accident exacerbated any level of stress that Ms. B had at the time of the accident.

Dr. McTavish also sent Ms. B to see Dr. Carol Corliss McMaster, a psychologist.¹⁸ Ms. B attended about twenty sessions with her which commenced sometime in or about January 1993.

Initially, Dr. McMaster noted that Ms. B had difficulties concentrating, suffered from headaches, difficulty with speech, was hyper sensitive, irritable, indecisive, angry, and unable to follow through with ideas. She confirmed that Ms. B wished to get back to her previous level of functioning.

By January 1994,¹⁹ Dr. McMaster found Ms. B to be much calmer than she had been a year earlier, although her personality remained the same. Dr. McMaster opined that Ms. B's ability to cope with stress was slowly improving. Nevertheless, Dr. McMaster indicated that Ms. B still suffered from post traumatic stress disorder, which was still out of control. She concluded that although Ms. B's focus on her physical symptoms and depression had reduced, her anxiety remained high.

Dr. McMaster recommended that Ms. B continue further psychotherapy otherwise, she feared Ms. B might regress. Dr. McMaster suggested that a realistic job goal for Ms. B might be a retail sales clerk, but she indicated that Ms. B needed vocational training before she would be in a position to perform this work.

On October 10, 1995 at the request of the Insurer, Ms. B saw Dr. M. S. Macartney-Filgate, a neuropsychologist for a neuropsychological assessment. Dr. McCarney-Filgate confirmed that Ms. B showed mild attention and concentration difficulties. She also confirmed that she exhibited significant levels of anxiety and depression.

Ms. B had serious difficulties testifying at this proceeding. Ms. B's personality, memory problems and general inability to cope was evident during the course of her testimony. She remembered very little about the accident, her medical history and other pre- or post accident events. She was often distracted, and became angry, upset and frustrated when she was unable to respond accurately to the questions asked of her. In my view, Ms. B was incapable of fully understanding many of the questions posed of her, so that much of her testimony was incoherent. I find that Ms. B's manner and response to questioning during the course of the hearing, provided me with further insight into the injuries she alleged in this hearing.

Most of the doctors agree that Ms. B suffered brain injury in this motor vehicle accident.²⁰ From the evidence I find it is clear that Ms. B suffers from concentration, memory, and personality problems as a result of the accident. In my view, although Ms. B had varied work experience prior to the accident, the employment for which she is reasonably suited requires the use of her memory, concentration, personality, people skills, timeliness and the ability to follow instructions, all of which were clearly impaired after the accident.

Dr. McTavish testified that she did not believe that Ms. B could show up at work due to her unreliability. She stated that Ms. B is unable to do more than simple calculations, she cannot add conceptually, she cannot draw conclusions from ideas very easily. She is unable to integrate or make sense out of information. She gets confused by multiple schedules. She can only handle one item at a time and does not process information very easily. Her ability to perform logical functions gets worse under stress.

Dr. Macartney Filgate, confirmed that Ms. B would have difficulty in a secretarial or managerial capacity without further psychological and vocational assistance. Dr. McMaster had similar concerns. Although Dr. McMaster suggested that Ms. B might be able to do retail sales, she confirmed that Ms. B would require further training and treatment before she could work.

In my view, without such rehabilitation, it is questionable whether Ms. B will be in a position to re-enter to the work force.

I find that her injuries leave Ms. B barely able to care for her own personal needs, and those of her child, and at present do not allow her to return to any work for which she is reasonably suited by education, training, or experience.

Accordingly, Ms. B is entitled to a reinstatement of her weekly income benefits from June 23, 1994 onwards pursuant to section 12(5)(b) of the Schedule.

Did the accident cause Ms. B to be continuously unable to return to work?

Ms. B suffered from medical and psychological problems prior to the accident. She experienced moderate anxiety and depression, which physically manifested itself in mild irritable bowel syndrome. This syndrome included bloating, cramps, diarrhea and constipation. She had also suffered from left-sided migraines since she was very young, but these were infrequent and did not cause her to lose work or seek medication.²¹ On two occasions, Ms. B experienced seizures which occurred when she was giving blood. She also suffered from low back pain as a result of a prior motor vehicle accident, gynaecological problems and sinusitis. During her childhood Ms. B was sexually abused, and a close relative was an alcoholic. She was nervous, anxious, and depressed.

Lloyds claims that due to her pre-accident state, Ms. B was unable to return to work. More specifically, it relies on its submission that Ms. B was suffering from a pre-existing personality disorder and a major depression (general anxiety disorder).²² In support of its claim, the Insurer relies on the evidence of Dr. Macartney-Filgate, a neuropsychologist and Dr. Margulies, a psychiatrist.

The Insurer also claims that Ms. B suffered from injuries sustained in a motor vehicle accident when she was twelve, and her other medical problems which pre-dated the accident, and claims that it is these difficulties which continuously cause Ms. B to be unable to go back to work.

In the alternative, Lloyds claims that post accident events and not the accident itself, caused Ms. B to be unable to return to work. Ms. B was involved in a subsequent motor vehicle accident, went bankrupt, had a baby, was physically abused, was raped by her ex-husband and divorced. The Insurer claims that these post-accident traumatic events led to Ms. B's emotional and psychological breakdown, and her subsequent inability to return to work.

Counsel for the Applicant claims that Ms. B's difficulties were caused by the accident in question. He submitted that Ms. B suffered a mild traumatic brain injury in the accident as part of a post concussion syndrome,²³ as diagnosed by Dr. Weber, a neurologist who testified on behalf of the Applicant. Dr. Weber testified that post concussion syndrome consists of physical headaches, dizziness, photophobia, appetite disturbances, cognitive disturbances, impaired concentration, irritability, depression, anxiety, nightmares and hypochondria. Dr. Weber testified that Ms. B suffered from a distortion in the electrical activity in her temporal lobe, or emotional centre of her brain which caused her brain to dysfunction. He stated that one of Ms. B's main symptoms was her failure to retrieve stored memory.

Dr. Weber confirmed his medical diagnosis by referring to Ms. B's abnormal SPECT Scan,²⁴and her Brain Mapping,²⁵ and noted that this syndrome could exist despite the existence of a normal CT scan. I accept Dr. Weber's diagnosis.

In my view, Ms. B had a propensity towards psychological and emotional problems and suffered from a personality disorder prior to the accident. I accept that Dr. McTavish had observed stress-related illness, pre-existing psychological difficulties and a personality disorder prior to the accident.

However, despite these pre-existing problems, Ms. B was able to complete grade 12, obtain work which she liked, and become a useful member of society. In fact at the time of the accident she was working at not one, but two jobs.

I find that it was as a result of the accident that Ms. B was unable to cope. In my view, Ms. B's pre-existing personality disorder was exacerbated by the accident. I find that Ms. B's past history of sexual abuse made her injuries from the motor vehicle accident more pronounced. This was fully canvassed by Dr. Macartney-Filgate.

In addition, most of the medical evidence confirmed that Ms. B suffered a brain injury in the accident. I find that Ms. B suffers from organic problems caused by the brain injury as suggested by Dr. Weber.

Dr. Macartney-Filgate confirms my view that Ms. B could be suffering from two concurrent problems. In addition, she explains how the motor vehicle accident exacerbated Ms. B's pre-existing personality disorder. In her report of October 30, 1995, she states at page 10:

...individuals who have had prior trauma, particularly of an abusive nature, may demonstrate much more marked symptoms than might usually be expected following a subsequent trauma, such as a motor vehicle accident. Again, it is difficult to estimate the extent to which this is true in Ms. [B]'s case, without further information about the nature of the abuse. However, I do think it possible that a history of sexual abuse rendered her more emotionally vulnerable to the effects of the motor vehicle accident. As well in such cases there may be heightened pain symptoms and complaints, beyond what would usually be expected."

[emphasis added]

She goes on to state at page 11 of the same report:

Despite what I believe to be reasonable evidence of characterological features making significant contribution to the symptom picture, I did not think that they account for all of the symptom picture particularly in the early stages of recovery. The initial Emergency records, as well as Dr. McTavish's records, do support an initial diagnosis of mild brain injury, and Dr. McTavish's documentation, as well as the documentation from other treatment personnel and facilities, do support a diagnosis of post-traumatic stress disorder, at least during the earlier stages of her recovery. Individuals who have had earlier trauma or major life stresses are more likely to develop post-traumatic stress disorder and, if the description of her symptoms can be accepted as true, a diagnosis of post-traumatic stress disorder would have been warranted.

[emphasis added]

Similarly, Dr. Margulies did not rule out organic brain damage as being the cause of many of Ms. B's complaints. He states at page 4 of his report.²⁶

Ongoing complaints of poor memory, diminished concentration, along with observed ready frustration and irritability and emotional disinhibition, are entirely in keeping with the effects of minimal organic brain damage. Reasons for this are by no means entirely certain but may very well include effects of the head injury sustained in the motor vehicle accident in question.

He goes on to state:

At this point in time and in view of Ms. [B's] severe characterological disturbance, any significant improvement cannot be expected."

He suggests that "supportive psychotherapeutic measures should be undertaken."²⁷

Lloyds suggests if it was not Ms. B's pre-existing condition which caused her inability to return to work, it was the traumatic post-accident events in her life. I do not agree. Little evidence was presented to support this contention. There was some evidence that Ms. B struck her head on the left temple in the second motor vehicle accident. Nevertheless, I heard no evidence linking this second accident to Ms. B's present injuries.

Similarly, I heard no evidence as to how Ms. B's injuries could have been caused by her bankruptcy. In addition, although I heard that Ms. B was physically abused and raped by her husband, no evidence was presented with respect to how these post-accident incidents caused her injuries. As I have noted earlier in this decision, Ms. B's accident caused her to be unable to cope with her child. I heard no evidence as to how the birth of Ms. B's child would cause the injuries that she was suffering from or exacerbate the injuries from the motor vehicle accident.

In Grout,²⁸ with which I agree, Arbitrator Makepeace stated that in order to establish the necessary causal connection between the inability to perform the essential tasks and the accident, it is not necessary to show that the accident is the only cause of the inability. However, it must have "significantly" or "materially" contributed to the insured person's disability. In this case, I find that the accident significantly contributed to Ms. B's disability.

Accordingly, I find that the injuries which Ms. B sustained in the motor vehicle accident of June 16, 1991 and no other cause, continuously prevents Ms. B from engaging in any occupation or employment for which she is reasonably suited by education, training, or experience. Ms. B is entitled to receive payment of weekly income benefits for the period from June 23, 1994 onwards.

B. SPECIAL AWARD:

Ms. B seeks a special award under section 282(10) of the Insurance Act on the ground that Lloyds unreasonably withheld or delayed the payment of her weekly income benefits and rehabilitation benefits.

Section 282(10) states:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

[emphasis added]

The term "unreasonable" was considered in Erickson²⁹, with which I agree. Senior Arbitrator Rotter stated at page 6:

It is clear that conduct [of the insurer] may be unreasonable, but still not deliberately or wilfully injurious, or motivated by bad faith. I find that wilful or deliberate misconduct or bad faith are additional factors in the conduct of the Insurer, beyond unreasonableness, which should be taken into consideration when assessing the quantum of the special award.

In this case, Lloyds ceased payment of Ms. B's benefits on February 7, 1994, more than twenty months prior to the commencement of the arbitration hearing.

As early as January 1992 International Rehabilitation Associates Inc. ("IRA"), the rehabilitation consultant for the insurer, recommended that Ms. B attend for a neuropsychological examination.³⁰ Ms. B attended at the offices of Dr. Gary Snow, psychologist on March 31, 1992 for this assessment. Dr. Snow states the following on page 9 of this report, a copy of which was sent to Lloyds:³¹

Whatever the levels of stress she was displaying prior to the accident, it is highly likely that the accident itself further exacerbated her levels of stress. I think one of the first challenges of treatment at present is to help alleviate her stress...I would therefore recommend that Ms. B should undergo a more comprehensive program of stress management...Similarly, any attempt to get the individual back to work quickly is doomed to failure, simply because the individual's concentration problems will have a significant impact in the work place.

My concern in cases such as this is that, if their symptoms go untreated, they may eventually develop chronic pain syndromes or chronic stress syndromes which could be avoided through appropriate intervention.

He recommended psychotherapy and referred Ms. B to the Pain Management Clinic for assessment.

On September 3, 1992, the Pain Management Clinic suggested that Ms. B pursue ongoing psychotherapy.³²

In October 1992, IRA suggested to Lloyds that Ms. B should adopt a realistic vocational plan. It noted that Ms. B was interested in design but would need a computer to upgrade her skills.

In December 1992, IRA noted an increase in Ms. B's headaches. It recommended contact with Dr. McMaster to discuss the benefits of a psychovocational assessment and to coordinate an assessment with a psychologist. IRA confirmed that Dr. McTavish had advised that Ms. B should see Dr. McMaster regularly to cope with post-traumatic stress disorder.

Dr. McMaster recommended computer upgrading assistance³³ in her letter to Adjusters Canada dated January 14, 1993.

In early February 1993, IRA recommended that Ms. B attend for a psychovocational assessment and computer upgrading. These requests continued in April 1993, and May 1993. The adjuster for Lloyd's simply did not respond to the repeated requests for instructions.

In July 1993, IRA was finally advised that Lloyds that they would take no further action to either rehabilitate or provide computer training to Ms. B pending the report of Dr. Margulies. Dr. Margulies was the psychiatrist hired by the insurer, who had in fact completed his assessment on June 28, 1993.

The rehabilitation consultant made repeated attempts for direction from July 15, 1993 until September 1, 1993.³⁴ Lloyds still did not respond. Dr. Margulies finally generated his long - overdue report which was dated September 7, 1993.³⁵ I conclude that at this point Dr. Margulies' report was expedited by the Insurer.

Lloyds finally responded to IRA's requests for instructions in October 1993. Instead of responding to the recommendations of IRA, Dr. McTavish, Dr. Snow, Dr. Bril, Dr. McMaster, and Dr. Soriano for psycho vocational, neuropsychological and ongoing psychotherapy, Lloyds instructed IRA to arrange a neurological assessment for Ms. B.³⁶ This was completed in November 1993 by Dr. Talalla.

Dr. McMaster asked Lloyds to consider vocational planning for Ms. B in January 31, 1994.³⁷Nevertheless, Lloyds advised IRA to close its file.

IRA's closure report was dated February 7, 1994.³⁸ Ms. B subsequently received a letter from the insurer dated February 7, 1994 confirming that she would no longer be receiving the services of the rehabilitation consultant.³⁹

Lloyds appears to have based its decision to discontinue Ms. B's benefits solely on the report of the neurologist, Dr. Talalla⁴⁰ as noted in the report of Adjusters Canada to Underwriters at Lloyds dated January 6, 1994. It confirms that Dr. Talalla examined Ms. B and relied upon the x-rays.

Dr. Talalla prepared his report after one meeting with Ms. B on December 7, 1993. In this report, he simply considered Ms. B's migraine headaches. Dr. Talalla stated in his report that "[G]iven the subjective nature of all of her [Ms. B's] symptoms, a neurological examination was conducted with great care."⁴¹ Nevertheless, I find the report was not detailed. Dr. Talalla based his findings solely upon his one meeting with Ms. B, and after review of her x rays and CT Scan. Despite the fact that Ms. B had seen numerous doctors prior to meeting with Dr. Talalla, these reports were not presented to him by the Insurer.

In my view, it was important for Dr. Talalla to have had some background about of Ms. B's condition at the time of their meeting. Dr. Talalla is the only doctor who concluded that Ms. B did not suffer any brain injury. His finding leads me to conclude that his examination of Ms. B was cursory.

Dr. Talalla's conclusions must have been of some concern to Lloyds, as they requested an additional report from him on November 1, 1995. In anticipation of this report, Lloyds sent additional material to Dr. Talalla ( which could have been sent at the time of Dr. Talalla's first meeting with Ms. B).

Nevertheless, Adjusters Canada, recommended closure of Ms. B's file and denial of further weekly income benefits and rehabilitation benefits on the basis of Dr. Talalla's first report.⁴²Adjusters Canada communicated this to Ms. B on January 24, 1994.⁴³ The note states in part:

Due to your pregnancy it would appear there is no reason for rehabilitation efforts to continue and we have therefore requested the rehabilitation firm to close their file.

Ms. B received no further weekly income or rehabilitation benefits after this date.

This matter was mediated on February 2, 1995. The application for arbitration was dated March 14, 1995 and the Response of the Insurer was dated April 23, 1995.

At the request of her counsel, Ms. B attended at Innovative Rehabilitation Inc. for an initial assessment on July 26, 1995. A copy of the assessment report, dated August 1, 1995 was forwarded to Lloyds. The report recommended that Ms. B attend for psychological assessment and counselling. It also recommended that Ms. B attend for a vocational assessment and training at Northern Lights.

Lloyds did not act on these further recommendations.

Lloyds finally arranged for a second neuropsychological assessment of Ms. B by Dr. Mccartney-Filgate. Dr. Macartney-Filgate performed this assessment on October 10, 1995,⁴⁴some two and one half years after the initial request for a follow-up assessment by IRA, and just days before the commencement of the arbitration proceeding. I have noted earlier in this decision the findings of Dr. Macartney-Filgate and I have found that they are supportive of Ms. B's entitlement to continued weekly income and rehabilitation benefits in this proceeding.

Dr. Mcartney-Filgate recommended that Ms. B attend for a vocational evaluation in her report of October 10, 1995, confirming the early recommendations of the health care providers.

Nevertheless, up to the commencement date of this hearing Lloyds did not act upon the recommendations made in this regard, nor did it reinstate Ms. B's weekly benefits or rehabilitation benefits.

In this case the Insurer continued to refuse to pay for weekly income benefits or rehabilitation benefits until the fifth day of the arbitration proceeding.

Cases at the Commission have held that in order for a special award to be made pursuant to section 282(10) of the Insurance Act, the benefits must be due and outstanding. In Quarrington,⁴⁵ with which I agree, Arbitrator Baltman found that she could order a special award, irrespective of the fact that the substantive issue concerning the reasonableness of the benefit had been settled on the eve of hearing. Similarly, I find that I can determine whether Lloyds unreasonably withheld Ms. B's rehabilitation benefits, under section 282(10), despite the fact that the substantive issue was settled by the parties on the final day of the arbitration hearing.

In any event, I find that Lloyds unreasonably withheld not only Ms. B's rehabilitation benefits, but her weekly income benefits from June 23, 1994 onwards. The amount of the special award is based on Lloyds' withholding Ms. B's weekly income benefit.

In my view, Lloyds had more than sufficient evidence to continue Ms. B's statutory accident benefits and had an obligation to do so. It was incumbent on Lloyds to consider Ms. B's injuries in a serious manner, in light of the medical evidence that she had experienced mild to moderate brain injury in the accident, and in view of the severity of the accident.

I find the reasons given for Lloyds' cancellation of Ms. B's benefits were insufficient, insensitive and incorrect. Accordingly, Lloyds acted unreasonably on withholding Ms. B's weekly income benefits. The fact that Lloyds relied on Dr. Talalla's initial report, in light of the conflicting medical evidence was also unreasonable.

I find that if Lloyds had followed the recommendations of IRA and the various other treatment providers in a timely fashion, Ms. B might have been on the road to recovery by now.

I heard no submissions as to the amount of special award that I should order.

In the case of Bibby,⁴⁶ I chose to express the special award as a lump sum figure. Although the outstanding benefits owed were fairly substantial, I chose an award which was less than the top 50% maximum I could have ordered under the Insurance Act. I stated that this maximum figure should be reserved for those cases where the Insurer shows flagrant misconduct or bad faith.

In the present case the Insurer did not act with such flagrant misconduct or bad faith that I would order the maximum amount allowable under the section. Accordingly, I order that Lloyds pay Ms. B a special award in the sum of $5,000.00 inclusive of interest under section 282(10) of the Insurance Act.

C. EXPENSES:

Ms B seeks an award of the expenses she has incurred in this arbitration. Under section 282(11) of Insurance Act, an arbitrator may exercise discretion in awarding expenses. I agree with the statement that it is appropriate to award an applicant his or her expenses unless it is established that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."⁴⁷

She has been awarded further benefits as a result of this proceeding as well as a special award. I therefore choose to exercise my discretion and find that she is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. If the parties cannot agree on the total amount of expenses, they may apply to the Commission to have the expenses assessed.

ORDER:

Lloyds shall pay Ms. B weekly income benefits from June 23, 1994 onwards pursuant to section 12(5)(b) of the Schedule.
Lloyds shall pay Ms. B a special award in the sum of $5,000.00 inclusive of interest.
Lloyds shall pay Ms. B interest at the rate of 2% per annum on any amounts outstanding.
Ms. B is entitled to her expenses as set out in Schedule 1 of the Dispute Resolution Practice Code.

June 24, 1996

Fern Kirsch Arbitrator

Date

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term '"Schedule' will be used to refer to Regulation 672.
R.S.O., c.I.8, s.282 (10); 1993, c. 10, a. 1.
See footnote 3.
Sandra Singh and State Farm Mutual Automobile Insurance Company, (May 8, 1995), OIC File A-005714, at page 18.
Exhibit 3 shows a list of duties here.
She engaged in Amway to a very limited extent post accident.
Exhibit 19.
Exhibit 15.
See Exhibit 26, report October 18, 1995, page 4.
Exhibit 5.
Exhibit 13.
She saw Dr. McCall at the request of her counsel. See report dated August 25, 1995, Exhibit 20.
Exhibit 13.
Exhibit 26, page 3.
Exhibit 53.
Exhibit 27.
Exhibit 27.
Her reports are contained in Exhibits 8-10.
Exhibit 9.
Except Dr. Talalla.
As confirmed by Dr. McTavish.
Dr. Macartney-Filgate confirmed that she believed that Ms. B probably suffered from both of these disorders prior to the accident.
Exhibit 17.
Exhibit 17.
Exhibit 34.
Exhibit 31.
Exhibit 31, September 7, 1993, page 4.
Grout and Pilot Insurance Company, (May 4, 1995), OIC A-004805.
Erickson and The Guarantee Company of North America (Decision on Special Award), (July 16, 1992), OIC A000560.
Exhibit 45, dated March 18, 1993.
Exhibit 27.
Exhibit 38, dated September 3, 1992.
Exhibit 8.
Exhibit 50.
Exhibit 31.
Exhibit 51.
Exhibit 9.
Exhibit 52.
Exhibit 25.
Exhibit 37.
Exhibit 57, page 3.
See Exhibit 37, letter dated January 6, 1994.
Exhibit 36.
Exhibit 26, dated October 18, 1995.
Quarrington and Jevco Insurance Company (July 17, 1995), OIC A-10804.
Bibby and Pilot Insurance Company (December 22, 1995), OIC A-009742.
McCormick and Economical Mutual Insurance Company (October 2, 1991), OIC A-000139.

Ms. B v. Non-Marine Underwriters, Members of Lloyds, London, England, 1996 ONICDRG 106

Case Summary

Issues:

Result:

Hearing:

A. ENTITLEMENT:

Background:

Applicable Law:

The Accident and its aftermath:

Employment history and education:

Did Ms. B's injuries continuously prevent her from engaging in any occupation or employment for which she was reasonably suited by education, training or experience?

Did the accident cause Ms. B to be continuously unable to return to work?

B. SPECIAL AWARD:

C. EXPENSES:

ORDER:

Footnotes