Neutral Citation: 1998 ONFSCDRS 62

FSCO A97–000385

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

A.K.

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

Mr. K was injured in a motor vehicle accident on January 27, 1993. He received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly benefits on July 7, 1995. After the parties were unable to resolve their dispute through mediation, Mr. K applied for arbitration at the Financial Services Commission of Ontario,² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. K entitled to weekly non-income benefits from July 7, 1995 to February 3, 1996, pursuant to subsection 13(1) of the Schedule, on the basis that he suffered a substantial inability to perform the essential tasks in which he would normally engage?

2. Is Mr. K entitled to weekly non-income benefits after February 4, 1996, pursuant to subsection 13(8) of the Schedule, on the basis that he is continuously prevented from engaging in substantially all of the activities in which he would normally engage?

3. Is Mr. K entitled to a special award, pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8?

4. Is Mr. K entitled to interest on any amounts owing, pursuant to section 24(4) of the Schedule? Is either party entitled to expenses of the arbitration?

Result:

1. Allstate Insurance Company of Canada shall pay Mr. K weekly non-income benefits from July 7, 1995 to February 3, 1996, pursuant to subsection 13(1) of the Schedule.

2. Mr. K is not entitled to weekly non-income benefits after February 4, 1996, pursuant to subsection 13(8) of the Schedule.

3. Mr. K is not entitled to a special award.

4. Allstate Insurance Company of Canada shall pay Mr. K interest on all amounts owing.

5. If the parties are unable to agree, either party may request that the hearing be resumed for submissions on expenses.

The details of the hearing and those present are set out in the Appendix.

Evidence and Findings:

Background

Mr. K is now 49 years old. He speaks three European languages, an African language and Arabic. His first fifteen years were spent with his family, living as nomads in northeast Africa, where his father was a community leader. He was educated during this time, but not in a formal school. About age sixteen, Mr. K moved to the city, where he enrolled in school, after being very successful on a scholarship entrance examination. He was an excellent student and eventually moved to his country's capital, attending first high school, then university, graduating in 1977, at age 28, with a B.A. in History and English from a College of Education. Mr. K was talented at penmanship and began a successful business painting signs and posters while in university. He ran this business full-time for more than twelve years. Mr. K described his business as a "pioneering entrepreneurship" that made "a lot" of money. He married about 1980, but was divorced after about three months.

Mr. K left his native country in June 1990 because of great political turmoil and civil unrest. He arrived in Canada two months later, in late August, claiming refugee status. His claim was eventually accepted after a hearing, held about July 1991. In the meantime, he studied office procedures, word processing, business writing, life skills, job search techniques and English. In the autumn of 1991, he obtained a work permit. In mid-November 1991 he secured a contract position as a client service representative with a government housing authority, initially for a term of four months, later extended to six and a half months. Mr. K described getting this job as being like a miracle. "I was the envy of all the community." By May 1992, however, Mr. K was unemployed and began receiving unemployment insurance benefits.

Mr. K worked as a volunteer with an immigrant aid organization from mid-1991 to mid-1992. At the time of the accident, in January 1993, he testified he was upgrading his English through reading and library research, considering applying for jobs, and "weighing a lot of options." Several witnesses testified that Mr. K had collected hundreds of proverbs from his native country and converted them to text on his computer. He testified that he hoped to publish a book of these proverbs. Both Mr. K and his brother testified that shortly before the accident of January 27, 1993, Mr. K had been elected as president of his clan organization.

Before the accident Mr. K hoped to become certified as a teacher in Ontario. His credentials had been formally evaluated, although he had not enrolled in any courses required to achieve this ambition. He also was considering work as a community organizer or social worker. He planned to write a manual to help immigrants both learn English and adapt to life in Canada. He testified he never considered working in a sign business, because that would remind him too much of the past.

At the time of the accident, Mr. K lived alone in a small apartment. He prepared his own meals, did his own shopping, cleaning, and laundry. He testified that he was developing a relationship with a woman, that he hoped would lead to marriage.

Injuries

Mr. K was a pedestrian crossing Dundas Street West in Toronto, about 31.5 metres south of the intersection with Humberside Avenue when he was hit by a car. Mr. K has no memory of the accident. The police recorded a statement from the car driver who admitted he was driving approximately 40 km/hr. The car windshield was shattered in the accident and Mr. K is reported in the Ambulance Call Report to have been thrown approximately 15 feet. Bystanders told the ambulance attendants that Mr. K was unconscious for approximately five minutes. By the time the ambulance arrived, he was conscious and complaining of pain in his left shoulder, arm, and wrist, left ankle and left knee.

Mr. K was taken to hospital, where he arrived about 18 minutes after the collision. He was assessed initially about 38 minutes after the collision. His Glasgow coma scale score was recorded as 15 at about 63 minutes after the accident and his neurological vital signs were listed as grossly normal. The emergency physician recorded abrasions to Mr. K's nose and diagnosed a head injury and fractured humerus. The orthopaedic consultant concluded that Mr. K had suffered a fractured left humerus and fractured fourth left rib.

Mr. K's brother testified that when he arrived at the hospital, perhaps two hours after the accident, his brother was in an emergency bed complaining of pain. Mr. K's brother testified that a nurse asked him to explain to Mr. K that he could not be given any pain killers yet. Mr. K's brother testified that he saw abrasions on his brother's face and was told that Mr. K had a broken arm.

Mr. K testified that his last memory before the accident is of walking along Dundas Street toward a friend's office, and, finding it closed, proceeding toward a favourite coffee shop. After the accident, he remembers lying in a hospital bed at St. Joseph's Health Centre "as in a dream." He has a very minimal recollection of his 10 days in hospital, remembering neither how he felt then, nor whether he had any visitors.

Six days after the accident, the multiple breaks of Mr. K's humerus were treated by surgical insertion of a metal rod. Mr. K was discharged from hospital ten days after the accident, on February 2, 1993. He was seen in the fracture clinic three days later by his orthopaedic surgeon, complaining of chest discomfort and that the shoulder immobilizer he had been sent home with was too tight. Once the apparatus was changed, he was reported to be more comfortable.

Allstate paid Mr. K weekly benefits until July 6, 1995, about 17 months following the accident. Mr. K admitted that, by that time, his badly broken arm had healed and no longer substantially impeded him. His only residual problem with his arm is some occasional muscle tension and joint pain.

The major problem, according to his testimony, and the evidence of his witnesses, is that after the accident Mr. K developed severe mental difficulties. His brother testified that about a week after he returned home from hospital, Mr. K seemed more energetic than Mr. K's brother would have expected. He observed him sitting, sometimes writing in Arabic with his right hand.

Dr. M. Kliman, Mr. K's orthopaedic surgeon, recorded the following observations when Mr. K returned to the hospital on February 17 or 18, 1993 about three and a half weeks after the accident:

This gentleman came in today with a lot of persisting complaints and very odd, peculiar behaviour. He had shaved his head, hoping this would help his persisting headache. He complained of right groin pain, left shin pain, but mainly pain along his left upper humerus, where he had had the fracture. The fracture is in good position. There is some minimal stability in the site. Sutures removed. We will maintain him in a Velpeau probably for 2 additional weeks. His hip was a little painful with rotation. X-rays did not show a fracture. He has a coccyx vara and perhaps ____ change.

He may have simply strained this region. We are going to ask him to carry on with limited weight bearing activities in this regard. I have also suggested psychiatric referral but the patient did not agree with this opinion. We are going to simply keep an eye on things in regard to his shoulder. We will have him back next week in this regard.

[emphasis added]

In a report dated July 5, 1995, Dr. Kliman wrote: "This man had a significant closed head injury....at times in the first few months following his injuries, I found his behaviour to be inappropriate."³

Mr. K explained at the hearing that he felt that he might treat his headaches partly in a traditional way. He stated that he shaved half his head as a kind of protest. He thought he could be treated partly in a traditional way and partly by conventional medicine.

Mr. K saw his family doctor, Dr. Gary T.K. Mok, on April 14, May 5, June 28, 1993. Previously, he had seen Dr. Mok about ten times in late 1990 and through 1991 for immigration physical examinations and minor physical complaints. He had last seen Dr. Mok prior to the accident on January 12, 1993 (11 days before the accident) complaining of hair loss and an itchy rash. The doctor's assessment on that occasion was "dry skin" and he prescribed lotion, to be applied as needed.

When Dr. Mok examined Mr. K on April 14, 1993, he diagnosed, among other things, "insomnia (nightmare) - about the accident, feels depressed about the future, crying sometimes about it." Throughout his examination Dr. Mok recorded that Mr. K was "Very emotional crying all the time." Dr. Mok assessed his patient as showing "depression/anxiety." He scheduled a psychiatric referral for Mr. K for the next week, an appointment that Mr. K did not keep. When he returned in June, Dr. Mok once again referred Mr. K to a psychiatrist.

Mr. K and his witnesses described incidents of bizarre, hyperactive behaviour that occurred in the early summer of 1993, when Mr. K cooked all the food in his house, or in the house of friends, in the middle of the night. They described other incidents of irrational behaviour like giving away his computer, clothes, and furniture and spending $1,500 in one week on overseas long distance telephone calls.

When Dr. G. D'Angelo, an orthopaedic surgeon, met Mr. K on July 20, 1993 for an insurer's examination, he reported Mr. K had some very paranoid thoughts. His speech and thoughts were disjointed and scattered. Mr. K cried, pounded the desk, and bit on his handkerchief. He would not sign a medical authorization and left the doctor's office. Similar behaviour was reported two weeks later by Dr. H. Scher, a psychologist whom Allstate had asked to assess Mr. K. Dr. Scher observed Mr. K had difficulty in reasoning. Mr. K claimed he was in considerable emotional and physical distress and would not consent to Dr. Scher's assessment.

Twelve days later Mr. K was hospitalized at the Queen Street Mental Health Centre from August 16 to 23, 1993, returning from August 26 to September 1, 1993, where he was diagnosed as suffering from bipolar affective disorder, also known as manic depression. Since then, Mr. K has been admitted to three other psychiatric facilities, sometimes for long periods, for example, 28 days in the spring of 1996. He also attended a residential program at the Neurological Rehabilitation Institute of Ontario (NRIO) from November 1 to December 12, 1994, that was funded by the Insurer.

Mr. K's treating psychiatrist was not called as a witness at the hearing, nor was any formal report from him filed. Neither was a family doctor who had treated Mr. K from at least May 1995 to September 1996 allowed to testify. At the arbitration hearing Mr. K's lawyer requested that these doctors be permitted to testify, but Allstate objected, because the provisions of the Dispute Resolution Practice Code regarding expert opinions and testimony had not been followed. I declined to hear these experts, for reasons delivered orally at the hearing, but I accepted in evidence the typewritten notes of Mr. K's psychiatrist, who treated him from June to September 1996, and again on eight occasions from April 16, 1998 to August 27, 1998. I also accepted the clinical notes of the family doctor who treated him in 1995 and 1996.

Causation

Mr. K contends that his mental illness was caused by the brain injury he received in the accident. Allstate, on the other hand, alleges that his psychiatric problems are unrelated to the accident.

Mr. K, his brother, and two witnesses—friends who knew Mr. K before the accident— testified about the successful sign business that Mr. K ran from the late 1970's to 1990 in his native country's capital city. One friend, Mr. Dirshe, knew Mr. K by reputation only in his native country, but met him personally in the fall of 1992 when Mr. Dirshe immigrated to Toronto. Mr. K helped orient him to the city. Mr. Dirshe visited Mr. K several times in his home prior to the accident. He testified that he observed great changes in Mr. K after the accident. Mr. Dirshe assisted Mr. K on several occasions after the accident and attempted to get appropriate medical help for him.

Mr. Abdurazak Noroddin, another friend, testified that he had known Mr. K since July 1969 when they began high school together. Mr. Noroddin lost touch with Mr. K about 1976 when Mr. Noroddin began teaching high school, but he knew of Mr. K's successful sign business. Mr. Noroddin left his native country in 1981 and did not meet Mr. K again until 1990 or 1991 in Canada. He visited him three or four times prior to the accident. He has seen Mr. K several times since the accident, including one memorable incident at Mr. K's apartment, that occurred probably in 1996, when Mr. K displayed such violent, destructive behaviour, that Mr. Noroddin was moved to call both Mr. K's brother and the police.

Mr. K's half-brother testified. He is 12 years younger than Mr. K. Mr. K's brother worked for Mr. K in the sign business for about three years part-time and two years full-time in the early 1980s. He testified that there was nothing strange about Mr. K's behaviour in the 1980s when he worked for him, nor during the period from 1990 until the accident, when Mr. K was in Canada. (Mr. K's brother arrived in Canada about three years before Mr. K, in 1987.) He was "just a normal person." The brothers lived together sharing an apartment with one or two others before Mr. K got his own apartment, probably in 1992. Mr. K's brother married in June 1992, an occasion which Mr. K attended and at which he behaved appropriately, wishing his brother well. Mr. K's bizarre, energetic behaviour began shortly after the accident. Mr. K's brother gave vivid, detailed testimony of many incidents since that time. He said his brother was completely different after the accident.

Mr. K has no recorded pre-accident psychiatric history. He reported to some doctors and testified at the hearing that he had suffered two periods of low mood, each of which lasted about two weeks. The first period occurred in approximately 1973, 20 years before the accident, and the second in 1980, 13 years before the accident. Both periods related to job disappointment. Mr. K testified he mainly spent his time sleeping during these periods.

Since all of the medical professionals who had the discharge summary of the Queen Street Mental Health Centre that recorded this information considered the record of these episodes, I will set out their full account:

PAST PSYCHIATRIC HISTORY:

Although the patient denied any past psychiatric history, when questioned specifically in 1973 and 1980 he went through periods of at least 2 weeks where he slept most of the time, had no energy, felt very low and was anhedonic and anorexic. Both episodes he related to job disappointment, the second one being not getting paid for a job.

Mr. K described the 1980 incident more fully at the hearing. About 1980, which would be in his fourth year of full-time business, his sign company had a large government contract. He was supposed to be paid half the contract price in advance. This did not happen. Mr. K testified:

But as there was not time, it was four days, and the deadline was to be met, and I just started the work. I finished it, and I presented my invoice after that...

They just kept telling me come back, and this is too much. We were bargaining, bargaining. So it may be -- maybe what she is referring is that there was a period that I was exhausted in the bargaining so I would not go to the shop for the business.

I take a break to some days of kind of a village that I went to a restaurant, nice restaurant. To restaurant I had an appointment with those guys later on to prepare myself and quiet.

...They were bargain hunting, because they have to minimize the cost. So maybe I was preparing myself to be more fresh, and the job it was two months that we were doing a lot of works. Maybe you get four hours' sleep that day.

So, if you are doing the job and the -- and actually I think there are a lot of elements involved, and there were a lot of people who were asking me money. So I went to there until this money will be paid. And it was kind of vacation. Slept, I slept very well.⁴

Mr. K had paid for the materials himself, without an advance, and assembled many electricians, carpenters, painters, and artists to artistically transform trucks to resemble fish, birds or sheep.

The work was done over about a two-month period on about four hours sleep a day. At the end of the job, when he still had not been paid, Mr. K went to the country to rest before continuing negotiations and to temporarily escape the pressure of his own creditors. This is how the 1980 incident was portrayed by Mr. K at the arbitration. No further details were presented about the 1973 incident, when Mr. K was 23 or 24 years old.

I found Mr. K's testimony about this period in his past to be plausible. In my view, the details provided by Mr. K in his testimony about the 1980 incident do not support that period as an example of a period of pre-accident clinically depressed behaviour. I view his behaviour in 1980 as a 'normal,' pragmatic reaction to the difficult circumstances he found himself in. However, I do not know if he described this incident in the same way, or in the same detail, to Dr. Nyhus and Dr. P. Posner in August 1993.

The main expert opinion proffered by Mr. K on the causation issue was presented by Dr. Robert van Reekum, a psychiatrist and research scientist presently with Baycrest Centre for Geriatric Care but previously a consultant and "responsible physician" with the Acquired Brain Injury (ABI) Program, Chedoke-McMaster Hospitals, from 1991-94. Dr. van Reekum maintains a link with the ABI Program one day biweekly.

Dr. van Reekum reviewed Mr. K's medical brief and met with him on one occasion after arrangements were made by his lawyer. It was Dr. van Reekum's view that Mr. K suffered a traumatic brain injury and musculoskeletal injuries due to this accident. He wrote: "The sequelae of these injuries include bipolar affective disorder, secondary to traumatic brain injury, cognitive impairments exacerbated by his fluctuating mood disorder, behavioural change consistent with frontal system (lobe) injury due to TBI and which includes severe impulsivity and amotivation.... and multiple losses including social isolation."

Dr. van Reekum testified and reported that support for his opinion that Mr. K's bipolar affective disorder is due to his brain injury is found in research showing that this disorder is much more common in the brain injured population than in the non-brain injured population—perhaps as much as five times more common. While acknowledging the report of two brief periods of low mood in his remote past, Dr. van Reekum found no evidence of pre-accident bipolar affective disorder or of the disorder in the immediate period after the accident. ("Research suggests that it tends to be a late sequelae" of brain injury).

In contrast, Allstate submitted that all the evidence points to Mr. K suffering only a mild head injury in the accident. This was the characterization proffered by neurologist Dr. Bruce Stewart, and the two neuropsychologists who examined Mr. K for the insurer. As well, Dr. van Reekum ultimately agreed to this characterization of Mr. K's injuries. The insurer submitted that Queen Street and Mt. Sinai's characterization of Mr. K's problems as bipolar affective disorder was predicated on him having received a severe head injury in the accident.

The insurer submitted that Dr. Stewart, the only neurologist who appears to have examined Mr. K, concluded in his February 7, 1996 report that Mr. K suffered a mild cerebral concussion and a psychiatric disorder not related to the brain injury. Dr. Stewart describes a body of literature on the relationship between head injury and some psychiatric disorders; however, he is of the opinion that "the cases are quire unlike this in that there is usually significant permanent brain injury and the behavioural disorders appear almost immediately afterwards and continue. "(In this case, the evidence is that Mr. K's unusual behaviour was observed by a medical doctor within three and a half weeks of the accident.) Dr. Stewart's report did not otherwise explain his conclusion that Mr. K's psychiatric illness was not caused by a traumatic brain injury.

Dr. A. Margulies, a psychiatrist who examined Mr. K for the insurer, stated that Mr. K likely suffered from a a characterological or personality disorder that long antedated the accident and that he maintained a facade of portraying himself as disabled in a manner far in excess of underlying physical pathology. It is clear from Dr. Margulies' report of July 6, 1995, that his opinion was based on a single, very unsatisfactory interview with Mr. K and on a meagre medical file provided by the rehabilitation caseworker. Dr. Margulies had none of the hospital records relating to Mr. K's treatment immediately after the accident (except, for some reason, an operative report about his arm), and none of the records of either Queen Street or Northwestern hospitals where, by that time, Mr. K had spent substantial periods under treatment and observation.

I also received a report of Dr. Harvey Stancer, of the Clarke Institute of Psychiatry, dated July 8, 1996. Dr. Stancer's careful, thoughtful opinion directly addressed the cause of Mr. K's psychiatric problems. Unfortunately, it appears that Dr. Stancer's opinion was not given to Dr. van Reekum, because it is not referred to in Dr. van Reekum's review of the medical brief, nor was it mentioned in his testimony.⁵ Dr. Stancer's curriculum vitae is not before me, so I do not know his expertise in the area of psychiatric disturbance of the traumatically brain injured. I do take notice, however, that Dr. Stancer is well known in the field of psychiatry and that Dr. van Reekum, himself, took part in three poster presentations at "Harvey Stancer Research Day," in June 1998.

Dr. Stancer's opinion is dated July 8, 1996, the day on which he met Mr. K for an interview. Dr. Stancer had two medical briefs about Mr. K that he considered, but I do not know exactly what documents he had, because the contents are unidentified, except for references to "relevant" documents in his report. Dr. Stancer accepted that Mr. K had been diagnosed with bipolar affective disorder, as a result of behaviour observed by psychiatric professionals, after the accident. He stated that the cause of this disorder is presently unknown. However, he felt that "there was insufficient disruption of brain tissue even to consider this as having any causal role in this psychiatric disorder." He wrote: "The fact that one has lucid, fairly normal behaviour between the episodes of either mania or depression, no matter how bizarre the episodes, would not support causation related to brain damage, even if the damage were much greater than has occurred in this accident." At the outset, he did think that there might be a question of whether the accident could be considered "a precipitant in initiating a psychiatric disorder which was lying dormant." In my view, Dr. Stancer never refuted this hypothesis in the report. He also initially considered "whether there was a high medical probability of this disorder occurring whether or not the MVA occurred." With respect to this hypothesis, Dr. Stancer accepted the report of "a probable pre-MVA history of two depressive episodes. This is not an unusual history in those patients who have manic depressive disorder where there has been no MVA." He also felt that "given the natural history of this major psychiatric disorder, it would [be] reasonable to assume that the MVA occurred coincidentally during a time when the patient had begun to exhibit signs of a manic depressive disorder." Yet, at the same time Dr. Stancer did note that "these events long preceded the MVA in question."

Dr. Stancer thought that "it would be difficult to substantiate the behaviour of a patient who does not even comply with referral to a psychiatrist by his own family physician." He also commented on how aware Mr. K is of protecting himself by refusing to sign "a simple document" despite the approval of someone in the office of his own lawyer. Dr. Stancer concluded: "For this reason, I cannot ignore the role of the litigation process in some of his behaviour when he is not psychiatrically disabled." At the same time, Dr. Stancer had observed earlier in his report that "This may also relate to sensitivity in his leaving a part of the world where one can be threatened by authority."

Conclusion on Causation

Mr. K was a pedestrian hit by a car. The force of the impact was severe enough to shatter a car windshield, throw him about 15 feet in the air, knock him unconscious, and cause severe breakage in his left humerus, as well as fracture a rib. In the two years prior to the accident, Mr. K had graduated from several adult training courses, held a responsible job for more than six months, and been elected to a leadership position in his community. His employer provided him with a favourable reference and called him "reliable, pleasant, punctual, and efficient." He appears to have been a healthy man, who saw no doctors at all from November 1991 until mid-January 1993. I accept the testimony of his brother and two friends that they had not encountered any manic or depressive behaviour in this man before the accident.

I am persuaded by the overwhelming evidence that Mr. K has a severe psychiatric illness. I find he suffers from bipolar affective disorder, which is the diagnosis that most frequently has been made of his condition. I accept Dr. van Reekum's evidence that research supports a highly increased incidence of BAD among the traumatically brain injured compared to the general population. I accept this evidence from Dr. van Reekum, even though a small study he conducted did not find BAD among the subjects with mild brain injuries.⁶ For that study only five of eighteen subjects in total had been diagnosed with a mild brain injury. I am not persuaded that Mr. K's development of bipolar affective disorder (BAD) was coincidental to the motor vehicle accident. I do not find it probable that this serious mental illness would begin to manifest itself within a period of three weeks following a frontal lobe brain injury, without significant connection to the accident.

I accept also that Mr. K has exhibited caution in dealing with signing consents and other documents for medical professionals since the accident. I find that he did not maintain a regular relationship with his family doctor following the accident, relying upon the orthopaedic surgeon, Dr. Kliman with respect to his physical injuries. However, I attribute nothing more to this behaviour than the degree of wariness of the legal system and unfamiliarity with the medical system that might be displayed by an accident victim who spent the first forty years of his life in a milieu very different from southern Ontario in the 1990s.

Weekly benefits from July 7, 1995 to February 3, 1996

Given that causation by the accident has been established, Mr. K is entitled to weekly benefits from July 7, 1995 to February 3, 1996, pursuant to section 13(1) of the Schedule, if he can establish that he suffered a substantial inability to perform the essential tasks in which he would normally engage, as a result of injuries received in the accident.

Arbitrators have had occasion to interpret this language since 1990. The distinction between the words "tasks" and "activities" in the Schedule has been the subject of some scrutiny. I agree with the comments of Arbitrators Makepeace and Mackintosh that "essential tasks" does not include casual social or recreational activities. Arbitrator Makepeace in her decision in Cabral and State Farm Mutual Automobile Insurance Company, (OIC A-005119, March 24, 1994) quoted with approval earlier comments of Arbitrator Mackintosh:

I interpret the words "essential tasks" in subsection 13(1) to refer to those activities connected to the ongoing business of living. I include the routine tasks a person performs to maintain themselves, their dependants, and their home. The words "essential tasks" also import an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants.⁷

Mr. K was a single man, unemployed for almost eight months at the time of the accident, who needed to cook, clean his apartment, shop for groceries, do laundry and carry out other ordinary activities of daily life. It is common ground that physically, nothing prevented Mr. K from carrying out his essential tasks during the period from July 1995 to February 1996. The question appears to be how mentally or psychologically disabled Mr. K was during this time.

The evidence is meagre as to other essential tasks Mr. K was carrying out at the time of the accident. Certainly, he had a life beyond the most mundane household chores. I heard repeated evidence of plans Mr. K had for his future, but little on what his key tasks actually were, beyond household duties, at the time of the accident. For example, the evidence does not disclose whether Mr. K was still compiling proverbs in January 1993, using his computer on a regular basis, or whether this task or activity was in suspension or completed. Mr. K's own evidence was that he was "weighing a lot of options" for his future and doing casual library research and reading to upgrade his English. He was not involved in a vigorous job search, but was "considering applying for a job." The duties Mr. K might have had as president of his clan organization were not explained at all.

Colleen Weatherseed, an occupational therapist, testified at the hearing. She was called as a witness by Allstate. Ms. Weatherseed visited Mr. K in 1994 and for a second time on January 12, 1995. She summarized her assessment of Mr. K's capabilities in January 1995 as follows:

Mr. K is physically capable of performing his essential tasks independently, i.e. adequate range of movement and muscle strength. His lack of regular performance of his household chores was reportedly due to his lack of initiation and motivation to perform these tasks.

[emphasis added]

Ms. Weatherseed was concerned about Mr. K's safety in the kitchen—although he had had a fire in his kitchen, he would not remain in the kitchen while food cooked. Mr. K complained that he had "difficulty initiating activities, i.e. clean the apartment [and] said that he was unable to concentrate and became frustrated." She recommended a life skills worker to ensure that Mr. K performs the various tasks of daily living on a regular basis (and provide reminders).

During February 1995, Mr. K was twice hospitalized at Northwestern Hospital suffering from emotional difficulties.

On March 27, 1995 the rehabilitation caseworker visited Mr. K with another occupational therapist, Sharon Ages, who was described as having extensive experience in working with head injury patients. Ms. Ages reported that Mr. K's apartment was "in complete disarray and that the state of his kitchen posed a hygiene risk." Ms. Ages described dirty laundry strewn throughout the apartment, although Mr. K's cupboards contained a good amount of clean clothing. Mr. K claimed not to have eaten in three days. He is reported to have said "I am scattered to the degree that I can't do anything for myself." According to the occupational therapist, Mr. K pleaded for a housekeeper, but did not wish the assistance of an occupational therapist who would help him take care of himself.

The records for the period April and May 1995 are sparse. Mr. K appears to have seen no medical professionals who billed OHIP in April at all. One visit to a general practitioner is recorded on May 9, 1995. No notes are before me for that visit.

Dr. L. Sokol, a family practitioner, who treated Mr. K from July 6, 1993 until December 1995 on about 12 occasions saw Mr. K twice in June 1995, mainly relating to an eye infection, but also relating to his emotional state. Dr. Sokol's abbreviated notes disclose Mr. K's report that he was: "troubled always very upset decrease INT social LIB-No energy. Really sad and difficult to do anything. Mind all over the place-a real mess."

Dr. Lawrence Freedman interviewed and conducted neuropsychological tests on Mr. K. (The date of his testing is not clear.) Dr. Freedman wrote in a report dated May 24, 1995 that Mr. K scored in the severely impaired percentiles on the tests, leading Dr. Freedman to conclude Mr. K's scores showed disproportionate cognitive impairment related to the acute neurologic findings. Dr. Freedman did not recommend any neurologic or neurocognitive rehabilitation, but stated:

On the other hand, he requires an immediate psychiatric examination for diagnostic and treatment purposes. I would also clinically recommend that consideration be given to referring him to a psychiatric day program where he can receive ongoing psychotherapeutic and social assistance.

Dr. A.I. Margulies, a psychiatrist, examined Mr. K on July 6, 1995, at the insurer's request. Mr. K was not very cooperative in answering Dr. Margulies' questions and the doctor found him manipulative and his poor memory to be self-serving. Dr. Margulies thought Mr. K's emotional state had little to do with the accident, but that Mr. K was attempting to maintain an image of being a disturbed person. As stated earlier, Dr. Margulies had very few records relating to Mr. K's symptoms and treatment since the accident.

On September 28, 1995 Mr. K went to the emergency department at Northwestern hospital and complained of depression and of being unable to take care of himself, or sleep or eat. He wanted to be admitted to the hospital. He was seen by a psychiatrists, Dr. H. Rosenblat, who felt he did not need to be admitted and should be managed by Dr. Sokol, his family doctor, and on an out-patient basis.

The next day, September 29, 1995, Mr. K saw Dr. Sokol, who wrote: "Doing awful. Lots of problems now all bad and things coming to head cannot differentiate B/W right and wrong. Cannot make a decision—no sleep[,] pains[,] no appetite... no longer taking any meds not seen psych in long long time would not go back ever!! Dep sad very very dep and lost. could not make decision. ever go to store stare then leave. I think of bad things alot. worry constantly about the future and dwell on past. living alone no friends no relatives cut me away now..." A further note on December 5, 1995 shows that Mr. K still appeared to be depressed and anxious. On December 12, 1995, he appeared to be very upset and angry.

Avi Nativ, Ph.D., Program Director of the Neurological Rehabilitation Institute of Ontario (NRIO) opined in his report of the previous January 19, 1995 that Mr. K often entered periods of "depression/passivity" when his ability to cook and care for himself with minimal supervision was greatly reduced. Dr. Nativ recommended helping Mr. K achieve a more normal sleep cycle so that he could increase his functional time during the day and become involved in some kind of pre-vocational activity. At that time, when Mr. K was about to be discharged from the NRIO program, he wrote: "...I would doubt whether Mr. K is capable of maintaining some form of employment. "

Dr. Bruce Stewart, the neurologist who examined Mr. K on January 10, 1996, a whole year after Dr. Nativ, although convinced Mr. K had suffered no "significant permanent brain injury" in the accident, similarly expressed that "I do not see how he could work in this frame of mind." These comments, when related to Mr. K's status as an non-income earner, give some insight into health care professionals' opinions, one year apart, of Mr. K's abilities to maintain a routine and behave in an acceptable manner [to an employer].

Dr. A. Moran, a general practitioner, examined Mr. K on January 8, 1996, and appears to have discussed Mr. K's current problems with him at length. He planned to refer Mr. K to a psychiatrist for ongoing care.

Based on the records of Dr. Sokol, Dr. Rosenblat, Dr. Stewart and Dr. Moran and the testimony of Mr. K and his lay witnesses, I find that during the period from July 1995 to February 1996, Mr. K still suffered from a debilitating mental illness, as a result of the accident of January 27, 1993. I find that although there were occasions when he was able to substantially perform his essential tasks, most of the time he was not. Specifically, I find that his motivation as well as his mental ability to plan his tasks and activities was substantially compromised as a result of the mental or psychological injury he sustained in the accident during most of that period. He was substantially unable most of the period to cook, clean his apartment, shop for groceries, do laundry and carry out other ordinary tasks of daily life in a reasonable manner when compared to his pre-accident level of performance. During this time Mr. K was substantially unable to carry out essential tasks like planning for his daily needs or his future. He was substantially unable to focus or sufficiently concentrate his mind to engage in library research, or plan initiatives for further education, training or future employment. By September 1995, Mr. K reported that he was feeling rejected and abandoned by his community, his friends, and his family. He was not receiving regular psychiatric care, nor was he taking psychotherapeutic medication on any regular basis.

Weekly non-income benefits after February 4, 1996

As of February 3, 1996 the test under which Mr. K is eligible for weekly benefits changed to one that is more strict. According to section 13(8) of the Schedule, Allstate is not required to pay benefits for a period in excess of 156 weeks unless Mr. K is continuously prevented from engaging in substantially all of the activities in which he would normally engage, as a result of injuries he received in the accident. Accordingly, to be entitled to these benefits, continuity of symptoms and a very high degree of compromised activity must be proven.

Few applicants have come to arbitration at the Commission claiming entitlement to this benefit, and very few have been successful. Mr. K's counsel put several cases forward for my consideration, but all of them, except one,⁸ dealt with employed persons. However, the Schedule imposes a different test on section 12 claimants for weekly income benefits after 156 weeks of benefits than for section 13 claimants like Mr. K. Some cases have also been considered under section 19(7)(c) of the Statutory Accident Benefits Schedule-Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by O.R. 635/94, which requires a "complete inability to carry on a normal life." A complete inability to carry on a normal life is defined at section 3 of that 1994-Schedule in terms very similar to the test of section 13(8) required here.⁹

Mr. K was hospitalized at Mt. Sinai from March 22 to April 18, 1996 during this post-156 week period. When he was discharged, he was to be visited three times weekly by a nurse, but that program was terminated on May 4, 1996 because he had not been available for the nurse's visits "despite many messages being left." The hospital staff also thought that Mr. K would benefit from having a "rehabilitation co-ordinator/counsellor" after his release.

Objective records of Mr. K's condition for the rest of 1996 and first half of 1997 are sparse. Over the summer of 1996 Mr. K was treated by his current psychiatrist, Dr. J. R. Johnson, on four occasions. Dr. Johnson's notes record that he was sleeping by day and insomniac at night. He had no motivation and was still depressed. He spent most of his time at home, sometimes not even answering the telephone. He was reported to have no sense of direction to decide what to do with the energy he had.

Mr. K was also taken to Etobicoke General Hospital by police on the afternoon of August 16, 1997, after being found near a café kicking cans, preaching on the street, and expressing paranoid ideas such as "the gypsies were following him." He was admitted on a Form 1 under the Mental Health Act in order to stabilize him on medication. He was kept in four locked restraints until August 18, 1997, then gradually decreased to three, and two alternate locked restraints until the 19th. He left the hospital without being discharged on August 21, 1997.

Mr. K returned to Dr. Johnson's care in April 1998, when his brother arranged an appointment. Dr. Johnson has treated Mr. K on seven further occasions thereafter, until the end of August 1998.

Mr. K has developed a psychiatric condition resulting from the accident of January 27, 1993. His treating psychiatrist calls his illness "episodic and chronic."¹⁰ Although I do not doubt that, from time to time since February 1996, Mr. K has been seriously debilitated and prevented from engaging in substantially all his normal activities, the evidence does not support a finding that Mr. K has been continuously, or is presently, continuously impaired to this extensive degree.

Although I have not found Mr. K entitled to ongoing weekly benefits after 156 weeks, he remains entitled to supplementary medical and rehabilitation benefits, including care benefits, under Part II of the Schedule. Mr. K's rehabilitation has been a challenging case, because of the nature of his impairment, his background and his personality. I would urge Allstate, Mr. K, and those interested in Mr. K's welfare to cooperate so that all reasonable measures will be advanced to care for Mr. K and to develop a personalized path for his continuing rehabilitation, for whatever period is necessary over the remaining entitlement period, until the tenth anniversary of the accident in 2003.¹¹

Special Award

According to the provisions of subsection 282(10) of the Insurance Act, an arbitrator must award a lump sum special award to an applicant where the arbitrator finds that "an insurer has unreasonably withheld or delayed payments." The maximum special award is set at fifty per cent of the amount to which the applicant was entitled at the time of the award, together with interest on all amounts then owing (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable.

Mr. K's lawyer made serious allegations about the conduct of the case manager who arranged the insurer's examinations. He contended that although records from the Queen Street Mental Health Centre and from Northwestern Hospital had been made available, they were not provided to the insurer's examiners. He submitted that the case manager selectively chose to present some evidence to these specialists, instead of all the evidence that was available. The implication of this allegation appears to have been that this withholding of records caused those practitioners to reach erroneous conclusions and led to the premature termination of Mr. K's weekly benefits.

The case manager was not called as a witness by either party, nor was the case manager's entire file before me, just selected reports. Despite the serious nature of these allegations, Mr. K's lawyer offered no evidence to support them, except the examiners' reports that set out the documentation provided to them. No document before me discloses who had possession of the psychiatric hospitals' records or when this disclosure was made and no witness testified about this issue. Without evidence, this allegation fails.

Allstate terminated Mr. K's weekly benefits in July 1995 based on Dr. Margulies' report, Dr. Menchions' reports, and Ms. Weatherseed's assessment. Although I have found that Allstate was in error in terminating the benefits, given the opinions before them and the nature of Mr. K's impairment, I do not find that they acted unreasonably.

Expenses:

I heard no submissions regarding expenses. Both parties were claiming expenses from each other. The parties did not advise if any offer to settle should be considered in connection with an award of expenses. If the parties are unable to resolve the expenses issue themselves, they should make arrangements with the case administrator to resume the hearing by teleconference for submissions on this issue.

Order:

1. Allstate Insurance Company of Canada shall pay Mr. K weekly non-income benefits from July 7, 1995 to February 3, 1996, pursuant to subsection 13(1) of the Schedule.

2. Mr. K is not entitled to weekly non-income benefits after February 4, 1996, pursuant to subsection 13(8) of the Schedule.

3. Mr. K is not entitled to a special award.

4. Allstate Insurance Company of Canada shall pay Mr. K interest on all amounts owing.

5. If the parties are unable to agree, either party may request that the hearing be resumed for submissions on expenses.

October 29, 1998

K. Julaine Palmer Arbitrator

Date

Appendix

Hearing:

The hearing was held at the Financial Services Commission of Ontario in North York on September 14, 15 and 16, 1998, before me, K. Julaine Palmer, Arbitrator.

Present at the Hearing:

Applicant: A. K. (September 14 and part of September 15 only)

Mr. K's Representative: Juan F. Carranza Barrister and Solicitor

Allstate's Representative: Ian D. Kirby Barrister and Solicitor

Allstate's Officer: Philip Langford Claim Manager

Witnesses:

A. K., Abdi Dirshe, A. K.'s younger brother, Abdurazak Noroddin, Robert Van Reekum, Colleen Weatherseed.

The parties filed 19 exhibits at the hearing, including four volumes of medical briefs and a document brief.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Effective July 1, 1998, the Ontario Insurance Commission became the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3as reported at paragraph 36 in the report of Dr. R. van Reekum, exhibit 2, tab 1.
4. 4Transcript, volume 1, pages 160 to 166.
5. 5At that point in the hearing, Dr. Stancer's report had yet to be made an exhibit. Exhibits 17, 18, and 19, the reports of Ann Taylor, Ph.D. dated June 25, 1996; Dr. Bruce Stewart, dated February 7, 1996; and Dr. Stancer's report were reports commissioned by the defendant in a companion tort action and disclosed to the Applicant through that process. To my understanding, these reports had not been made available to Allstate's counsel in this proceeding prior to the hearing.
6. 6van Reekum R, Boiago I, Finlayson MAJ, Garner S, Links PS: Psychiatric disorders after traumatic brain injury. Brain Injury, 10: 319-327, 1996.
7. 7Chor Ting Lui and Wellington Insurance Company, (OIC A-001894, April 28, 1993).
8. 8Ms. G and Allstate Insurance Company of Canada, (OIC A-013283, December 7, 1995), a decision of Arbitrator Young.
9. 9J.P. and Wawanesa Mutual Insurance Company, (OIC A96-001312, August 11, 1995), a decision of Arbitrator Jones.
10. 10clinical notes of Dr. J. R. Johnson, April 16, 1998.
11. 11as set out in sections 6 and 7 of the Schedule.