Neutral Citation: 1997 ONICDRG 150

OIC A-013360

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOHN CRIPPS

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Issues:

The Applicant, John Cripps, was injured in a motor vehicle accident on December 7, 1992. He applied for and received statutory accident benefits payable under Ontario Regulation 672¹ from Boreal Insurance, which has since been taken over by AXA Insurance (Canada) ("AXA"). Weekly benefits were paid until December 20, 1995. Mr Cripps disputed both the termination and the amount of the benefits paid. The parties were unable to resolve their disputes through mediation, and Mr. Cripps applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Prior to the arbitration hearing, I dealt with Mr. Cripps' motion for interim benefits payable under section 12(5) of the Schedule.

Result:

Mr. Cripps is entitled to interim benefits.

I granted the motion for interim benefits by letter dated August 27, 1996, with reasons to follow. These are my reasons:

Hearing:

The motion was decided on the basis of written material filed. I received documentation from counsel for Mr. Cripps on August 12, 1996. I received documentation from counsel for AXA on August 16, 1996. Counsel for Mr. Cripps forwarded submissions by way of reply on August 16, 1996. After discussion with counsel, it was agreed that I should also review surveillance videotapes and photographs of Mr. Cripps, depicting his activities on July 18, 19 and 21, 1995.

Representatives:

Mr. Cripps's Representative:

David F. Smye

Barrister and Solicitor

AXA's Representative:

Kathleen D. Urdahl

Barrister and Solicitor

Exhibits:

The material filed is listed in Appendix I.

Evidence and Findings:

Mr. Cripps received weekly income benefits under subsection 12(1) of the Schedule for approximately 158 weeks. Benefits are paid under subsection 12(1) if the insured person, as a result of the accident, suffers a substantial inability to perform the essential tasks of his or her employment. Mr. Cripps seeks ongoing benefits under paragraph 12(5)(b) of the Schedule, (weekly income benefits after 156 weeks) and sought an order that interim benefits be paid pending the full hearing and determination of his claim.

Subsection 279(4.1) gives an arbitrator the authority to make an interim order for the payment of benefits. It provides:

(4.1) The Director and every arbitrator may make interim orders pending the final order in any matter before the Director or arbitrator.

It is settled law that interim benefits are not ordered as a matter of course. Normally, arbitral orders are made only after the evidence and positions of the parties have been fully and thoroughly canvassed at an arbitration hearing. However, in certain cases, interim benefits can be ordered before a full hearing on the merits of the claim. The evidence considered on interim applications is usually less than complete. The arbitrator hearing the motion for interim benefits is required to deal with it in a summary fashion, and to make an order as expeditiously as possible. That order may be reversed or overturned after a full hearing of the matter. Various arbitrators have considered under what circumstances an order for interim benefits should be made.² In determining whether interim benefits should be awarded, two major criteria have been identified:

(1) the merits of the case for entitlement

(2) the existence of an element of necessity or urgency

In general, I agree with these criteria.

In Malabanan and Canadian General Insurance Company,³ the arbitrator found that the first threshold criterion for entitlement should be that the applicant put forward at least a prima facie case. She did not feel that a "convincing" case for entitlement had to be made, although other arbitrators have used this standard.⁴ The arbitrator found that an applicant was only required to put forward "evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement."

I do not feel that the formulation of the test as a prima facie case is particularly helpful. The term prima facie is defined in the Concise Oxford Dictionary as "at first sight: from a first impression".⁵ The term as it refers to a legal case is defined in Black's Law Dictionary⁶ as "such as will suffice until contradicted and overcome by other evidence." The problem is that, in the context of a motion for interim benefits, the term prima facie is ambiguous, and does not sufficiently address the standard of proof required for making an interim order.

In an interim application, both sides generally present evidence and make representations. The arbitrator hearing the application must consider the evidence of both sides, and should only make the interim order where (s)he is persuaded that justice and fairness require that it be made.

In other words, in my view, at the very least, a persuasive case for the interim award must be made. The arbitrator hearing the application must have a very positive view of the merits of the case for benefits. The arbitrator in Malabanan and Canadian General Insurance Company held that an applicant is not required to present a "convincing case," on an interim motion since that would entail a standard of proof leaving no margin of doubt, hesitation or ambiguity. I agree that a very high standard of proof leaving no margin of doubt cannot be required. An element of doubt, hesitation or ambiguity will always exist in the absence of a full hearing of all the evidence. Such an element may well persist even after a full hearing. However, after a full hearing, the arbitrator is only required to be persuaded on the balance of probabilities (the civil standard of proof).

I consider that, in the context of a motion for interim benefits, the standard of proof should be somewhat higher than at a hearing, in view of the fact that the evidentiary basis for the order is generally less than complete. On all the material presented, the arbitrator should find it not only reasonable, but also very probable, that an applicant will be found to be entitled to the benefits sought. Otherwise, it would be unfair to award the interim benefit, given the likelihood, as was noted in Malabanan and Canadian General Insurance Company, that in a significant number of cases, interim benefits awarded will not be able to be recovered from an applicant, should the benefit be found not to be payable after a full hearing.

I now turn to the merits of the present motion for interim benefits.

Mr. Cripps seeks benefits under paragraph 12(5)(b), which refers to entitlement to ongoing weekly income benefits after 156 weeks. The paragraph states:

(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

In effect subsection 12(5) provides that after 156 weeks of benefits, a more stringent test for entitlement to benefits comes into force. The test changes from the pre 156 week standard - where the insured person was required to establish that they were substantially disabled from performing their own job - to a standard requiring the insured to establish they are substantially disabled from doing any suitable work. The insurer stopped Mr. Cripps' benefits after approximately 158 weeks, on the basis that Mr. Cripps could not establish disability under the more stringent test.

AXA concedes that Mr. Cripps suffered a brain injury as a result of the motor vehicle accident of December 7, 1992. However, it takes the position that Mr. Cripps is capable of working, and is therefore not entitled to ongoing weekly income benefits under paragraph 12(5)(b). AXA relies on surveillance evidence alone to support its view.

In the present case, I am satisfied that the evidence supports the order for interim benefits.

Counsel for Mr. Cripps submitted documentary evidence which shows that Mr. Cripps was involved in a serious motor vehicle accident. The ambulance call report indicates that Mr. Cripps was unconscious at the accident scene, and that his Glasgow Coma rating was three - a very serious finding. He remained in a coma for three days. He was hospitalized in various facilities until April 30, 1993, and then discharged to Hamilton's Chedoke-McMaster Hospitals, into a day program for brain injured patients. At that time, he was diagnosed as suffering from urinary incontinence, right hemiparesis, and cognitive impairment.

Counsel for Mr. Cripps submitted a report from Mr. Cripps's family physician, Dr. Susan S. Piccinin, dated March 11, 1996. In that report, Dr. Piccinin indicates that she has been treating Mr. Cripps since January 1994, and that his ongoing problems are those listed above. She describes his cognitive difficulties as including memory impairment, disinhibition, emotional lability and depression. She concludes:

These problems I feel are profound enough to severely and permanently hamper Mr. Cripps opportunities and possibilities of gainful employment. It is my professional opinion that Mr. Cripps would only be employable in a very structured situation with continuous supervision around very simple tasks. For this reason I would classify him as permanently disabled.

Dr. Piccinin's views and findings are supported in a report by Dr. Scott H. Garner, a specialist in physical medicine and rehabilitation, who examined Mr. Cripps at the request of his counsel and reviewed the medical records. In a report dated June 10, 1996, Dr. Garner indicated that Mr. Cripps had sustained a "closed head injury in the most severe category." He went on to describe Mr. Cripps' "significant residual deficits" as follows:

1. Right hemiparesis with weakness and clumsiness of his right arm, right foot, with increased spasticity with stiffness which limits his balance, high level motor functioning on his legs and use of his right arm.

2. Significant cognitive impairment with evident limitations today on evaluation of his attention, memory. He was not oriented even to the appropriate month and year.

3. Behavioural dysfunction. He has had his common-law relationship break up because of personality change and the records indicate difficulties getting along with staff during his rehabilitation. He seems to have difficulty tolerating delays and is irritable and prone to behavioural outbursts with minor irritants.

This constellation of physical deficits, cognitive and behavioural problems are all consistent with severe sequelae. The CT scan finding on the left side could correlate with some of the right sided findings but the underlying behavioural change, cognitive deficits likely reflect underlying frontal lobe injury.

PROGNOSIS:

Given the length of time since injury (i.e. almost four years) it is unlikely there will be significant change from this point on. He will continue to have the deficits as described above.

RESULTANT DISABILITY

He will have difficulty handling physical functions that require high level balance, prolonged walking, standing and a lot of trouble using both arms.

He will have difficulty paying attention, handling information, concentrating, learning new skills and will be prone to forget things.

He will have difficulty responding quickly to emergencies, dealing with complex situations and dealing with multiple pieces of information, and will have trouble making decisions.

VOCATIONAL IMPLICATIONS

He is not going to be capable of working in a competitive vocational setting because of the above deficits. He will have trouble learning new skills and trouble with interpersonal abilities which will make it difficult for him to get along in a competitive setting.

RELATIONSHIP TO THE ACCIDENT

These deficits are consistent with the injuries as described in the hospital chart and thus are related to the motor vehicle accident of 1992 with the probability of 51% or greater.

... the widespread pattern of injury would indicate that the closed head injury is a major factor which has resulted in his neurologic disability.

Dr. Garner's report strongly supports the Applicant's claim that he is continuously prevented, as a result of his injuries, from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

AXA presented no medical information to refute or counter the opinions of Drs. Garner and Piccinin. The documentation⁷ indicates that AXA had arranged for its own neuropsychological assessment to take place on May 4, 1996, but Mr. Cripps did not attend this appointment. AXA arranged for a subsequent medical examination, to take place on a date after this interim application for benefits had been dealt with.⁸

Prior to the accident, Mr Cripps was self-employed in a plant-selling business, under the name of "Plants Plus." Together with his son Chris, he sold plants at farmers' markets and also supplied plants to various businesses.

AXA relies on video surveillance evidence taken in July 1995, which, it alleges, depicts Mr. Cripps engaging in self-employment activities. AXA asks me to conclude, based on these videotapes, that Mr. Cripps was "an active and healthy individual" who was fully capable of performing all the duties of his former business. AXA claims that the videos show Mr. Cripps performing his pre-accident tasks as an independent plant and flower vendor, including attending at various markets to display and sell his plants, driving his motor vehicle, engaging in conversations with customers, and exchanging currency for products, without any apparent difficulty.⁹

The videotapes show Mr. Cripps engaged in various activities, apparently in connection with his plant-selling business. He is depicted driving his truck, unloading pots of plants and setting them up in a market stand. However, in my view, the videotapes fall far short of showing that Mr. Cripps is a capable or competent businessman. They show Mr. Cripps engaged in various activities, but his activities could not be fairly described as gainful or even purposeful. Rather, Mr. Cripps' activities appear erratic, unfocussed and disorganized.

He moves plants around from one spot to another for no apparent reason. Often he appears to lose track of whatever it is he is doing, and simply repeats certain activities, at random. He sometimes wanders away from the task at hand and appears to "get lost" in something else, or just passes time vacantly. He does not appear to be in control of even simple physical chores, and does not accomplish any task with the efficiency or competence one would minimally expect from a self-employed entrepreneur.

Mr. Cripps walks with a clear limp. His actions are slow, repetitive, unsteady and generally uncoordinated. He often drops or knocks pots of plants over, while trying to set them up for display. They are left lying sideways, without being righted, while Mr. Cripps attends in a desultory manner, to something else. He might notice the overturned pots at some later time, and attempt to right them, but sometimes the attempt is unsuccessful - the pot is knocked over in the other direction.

Mr. Cripps' actions are not purposeful: he arranges and rearranges his display, moving the plants by a foot or two in one direction, or another, with no apparent design. He frequently performs repetitive actions such as walking the long way around his truck with a plant, to place it a short distance away. A moment or two later he moves it again.

While the videotapes clearly show Mr. Cripps at the market, unloading and trying to display his plants, as I have described, no actual sales are depicted. His activities do not appear to be meaningful from a business perspective. From his demeanor and manner, I would find it difficult to infer that he was capable of dealing with financial transactions, or any of the "business" or organizational aspects of a commercial enterprise.

In short, I am not persuaded, from the surveillance evidence, that Mr. Cripps is capable of engaging in his self-employment duties, or in any meaningful work. I prefer to rely on the medical evidence, which is clear, explicit and uncontroverted. I conclude therefore that Mr. Cripps is disabled from performing any work for which he is reasonably suited by education, training and experience. Accordingly, I find that Mr. Cripps has met the evidentiary burden which is the first criterion for an award of interim benefits.

I also find that Mr. Cripps has satisfied me with respect to the element of necessity or urgency. Mr. Cripps' benefits were terminated in December 1995. Since then, his sole source of income has been General Welfare Assistance, at the rate of less than $500 per month. He is suffering serious financial hardship. Just prior to making this application for interim benefits, he was served with a notice of termination for non-payment of rent. I conclude then that this is an appropriate case for an award of interim benefits.

AXA submitted that it would not be equitable to award Mr. Cripps interim benefits, because he had failed to comply with certain prehearing production orders, and because he had failed to attend the first independent medical examination scheduled. These failures necessitated an adjournment of the hearing.

Counsel for Mr. Cripps indicated in his reply submissions, that the productions were being made, and the medical examination had been rescheduled. In my view, the adjournment of the hearing resulting from these delays prejudiced Mr. Cripps to at least the same extent as it did AXA. In any event, given the seriousness of Mr. Cripps' medical condition, I do not believe it would be equitable to further penalize him for these delays by withholding an otherwise justified interim award.

The parties are disputing the amount of the weekly benefit payable to Mr. Cripps. Pending a determination of the amount payable, AXA should pay benefits at the minimum rate of $185.60 weekly.

Order:

1. AXA Insurance (Canada) shall pay Mr. Cripps interim benefits in the amount of $185.60, commencing August 16, 1996. Such benefits shall be paid up to and until October 28, 1996, the date the arbitration hearing in this matter is scheduled to commence.

2. The expenses of this application for interim benefits are reserved to the hearing arbitrator.

August 8, 1997

Frederika Rotter

Senior Arbitrator

Date

APPENDIX I

Documents Filed:

From the Applicant:

Written submissions of counsel together with the following documents:

Ambulance call report, dated December 7, 1992

Discharge summary from St. Michael's Hospital, February 8, 1993

Final summary from Queen Elizabeth Hospital, April 30, 1993

Neuropsychological discharge summary from Chedoke-McMaster Hospitals dated June 16, 1993

Report of Dr. Susan Piccinin dated March 11, 1996

Report of Dr. Scott Garner dated June 10, 1996

Notice of Early Termination by Landlord dated August 2, 1996

From the Insurer:

Submissions of Insurer and Case Authorities

Affidavit of Cassandra Phillips, dated August 15, 1996, and Exhibits "A" through "T", attached

Surveillance videotapes (4) and photographs of Mr. Cripps by Horwath Investigations Inc.

Footnotes

1. 1Prior 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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2See Lucas and Dominion of Canada General Insurance Company (March 24, 1995), OIC A-009670; Malabanan and Canadian General Insurance Company (September 9, 1996), OIC A96-000084; Osbourne and Allstate Insurance Company of Canada and York Fire and Casualty Insurance Company (March 6, 1995), OIC A-009110
3. 3Footnote 2, supra
4. 4Gomez and Pilot Insurance Company (May 10, 1995), OIC A-013080
5. 5The Concise Oxford Dictionary, 8th edition, Clarendon Press, 1990, R.E. Allen, ed.
6. 6Revised Fourth Edition, West Publishing Company, at p. 1353
7. 7Affidavit of Cassandra Philips, par. 19, and Exhibit "P" to the affidavit.
8. 8The documentation and submissions in this interim application had been filed by August 16, 1996. The Insurer's examination was scheduled to take place on August 23, 1996.
9. 9Affidavit of Cassandra Philips, par. 7.