Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 180

FSCO A09-001224

BETWEEN:

M. R.

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Arbitrator Suesan Alves

Heard: By telephone conference call on November 24, 2009.

Appearances: Michael L. Lamont for Mr. R.

Joanne Rousseau for Gore Mutual Insurance Company

Issues:

The Applicant, M. R., was injured in a motor vehicle accident on December 1, 2006. He applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, (“the Act”). He seeks a determination that he sustained a catastrophic impairment, case manager services, medical and attendant care benefits and interest payable under the Schedule¹ as well as expenses and a special award under the Act. Gore Mutual disputes Mr. R’s entitlement to all the relief he claims and seeks its arbitration expenses.

Mr. R. brought a motion at the pre-hearing pursuant to section 67 of the Dispute Resolution Practice Code — Fourth Edition, Updated October 2003 for interim benefits pending the resolution of his dispute with Gore Mutual.

The issue on this motion is:

Is Mr. R. entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act?
Mr. R. also claims his expenses incurred on this motion.

Result:

Gore Mutual shall pay Mr. R. interim benefits in the amount of $5,953.46.
I leave the expenses of this motion in the discretion of the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Background

The Applicant was injured in a motor vehicle accident on December 1, 2006. At the time of the accident he was employed as a truck driver. Mr. R. applied for arbitration seeking a determination that he sustained a catastrophic impairment, benefits for case manager services, psychological treatment and attendant care, as well as interest, expenses and a special award. The Insurer disputes Mr. R’s entitlement to all the relief he claims and seeks its arbitration expenses.

Mr. Lamont, counsel for the Applicant, requested an early hearing date on behalf of his client at the pre-hearing held in late November 2009. He proposed dates in March, April and May 2010. These dates were within four to six months of the date of the pre-hearing, as contemplated by Practice Note 7 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003.

Ms. Rousseau, a claims specialist with Gore Mutual, represented the Insurer at the pre-hearing, and advised that the Insurer had not as yet retained counsel. She proposed dates commencing in September 2010, stating that these dates had been provided to her by the lawyer Gore Mutual intended to retain. These later dates were not acceptable to counsel for the Applicant.

The pre-hearing was recessed to allow Ms. Rousseau to obtain earlier hearing dates from the proposed counsel or to retain counsel who could offer earlier hearing dates. On resuming the pre-hearing, Ms. Rousseau provided earlier dates; however, these were not available to counsel for the Applicant. The only mutually available dates were in September 2010. The hearing was scheduled in September 2010.

Counsel for the Applicant asked whether the Insurer would consider payment of psychological treatment pending the hearing in light of the delayed hearing date, some ten months after the pre-hearing. Ms. Rousseau advised that Gore Mutual was not prepared to do so.

Counsel for Mr. R. made an oral motion for interim benefits for psychological treatment for his client pending the hearing. The Insurer’s representative opposed that request. I ordered payment of those benefits in the amount of $5,953.46 pending the final order in this matter, with reasons to follow. These are my reasons.

Test for interim benefits

Section 279(4.1) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, gives adjudicators at the Financial Services Commission of Ontario the discretionary authority to make interim orders pending the final order in any matter. Arbitrators have disagreed as to the test which should be used to guide the exercise of that discretion.

I agree with the reasons of Arbitrator Manji, that on a motion for interim benefits, the Applicant should put forward a prima facie case for entitlement. “That is, the Applicant must produce evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in

favour of entitlement.” Since benefits are usually awarded after a hearing on the merits, interim benefits should only be awarded where is need or urgency.² I will apply those criteria in this case.

My findings with respect to the question of whether the Applicant has established a prima facie case for entitlement to psychological treatment are for the purposes of this motion and are not binding on the hearing arbitrator.

Has the Applicant established a prima facie case, need or urgency?

There is conflicting opinion evidence as to Mr. R.’s psychological and psychiatric condition.

I find that Mr. R. has made out a prima facie case for entitlement to psychological treatment. I am satisfied that the reports of his treating psychologists, Dr. C. Dywan and Dr. R. D. Kaplan, and the rebuttal report authored by Kaplan and Kaplan demonstrate both need and urgency with respect to such treatment.

The Applicant’s document brief contains a number of reports. In December 2007, Dr. R. D. Kaplan diagnosed Mr. R. with concussion, chronic pain, headaches, severe depressive episodes with psychotic symptoms, adjustment disorder with symptoms of generalized anxiety, post-traumatic stress disorder, irritability and anger, automobile anxiety as a driver/passenger; problems related to unemployment; nonorganic insomnia; and limitation of activity due to disability.

In the opinion of Dr. Dywan and Dr. Kaplan, Mr. R sustained a brain impairment as a result of the motor vehicle accident of December 1, 2006. Of significant concern were Mr. R’s symptoms of “Significant agitation…symptoms of severe depression including suicidal ideation, symptoms of notable anger and aggressiveness, including reported homicidal ideation.”

The evidence of suicidal ideation suggests some risk that Mr. R. could harm himself. The evidence of homicidal ideation coupled with the presence of knives, baseball bats and other weapons in Mr. R.’s home, motor vehicle and on his person suggests a risk of harm to others. There is a reference to his road rage in an early report. There is some evidence that Mr. R. is unable to avoid escalation of social confrontations before they become violent.

Mr. R.’s symptoms include significant post-accident hoarding behavior. At one point, his home was considered to be almost uninhabitable. Treatment providers who had to work with Mr. R. in his home have had ongoing concerns for their own safety. A report authored in October 2008, documents that these concerns existed at least between May and October 2008.³ Treatment providers have consulted with Mr. R.’s psychologists to determine how they could work safely with Mr. R. in his home where numerous weapons were at times visible; when he expressed suicidal, aggressive, paranoid and homicidal ideation; and when efforts to work with his significant post-accident hoarding behaviour contributed to increased agitation.

Mr. R’s treatment providers appear to have assessed the risk of harm to themselves as a serious one, in that they have taken measures to protect themselves. They ensure that another treatment provider is in attendance before they enter Mr. R’s home. In May 2008, the Insurer scheduled a s.42 in-home assessment by an occupational therapist. She attended and waited outside Mr. R.’s home for a chaperone. When the chaperone did not attend after forty-five minutes, the assessor left and rescheduled the appointment to July 2008. In July 2008, the occupational therapist completed her assessment in the presence of Mr. R., his rehab support worker and a male chaperone.

Mr. R.’s treating psychologists’ report that they have worked with Mr. R.’s occupational therapist and rehabilitative therapists who were and remain at risk of becoming overwhelmed by the severity and complexity of Mr. R.’s ongoing psychological and neuropsychological rehabilitative needs.

Kaplan and Kaplan submitted a treatment plan to Gore Mutual for a further sixteen sessions of individual psychotherapy, each lasting one and a half hours, in October 2008. In November and December 2008, Dr. C. West, psychologist assessed Mr. R. on behalf of the Insurer. Dr. West noted the sparse medical documentation provided to him; considered Mr. R’s presentation during the assessment, including indications of significant symptom exaggeration on multiple measures, suboptimal levels of motivation and effort, concluded that he could not render an objective opinion with respect to Mr. R.’s current level of functioning and opined that the treatment sought was not reasonable and necessary. However, he reserved the right to alter or amend his opinions with regard to the current treatment plan. Gore Mutual denied the requested treatment.

There is opinion evidence in April 2009, that in the absence of treatment, Mr. R. has deteriorated from an emotional and psychological standpoint. In April 2009, Mr. R.’s treating psychologists described him as “… a very vulnerable man with very serious psychological impairments. He will continue to deteriorate further, without proper treatment, which at this point may necessitate hospitalization.”

I find that if the opinion evidence adduced on behalf of the Applicant by his treating psychologists is unanswered and believed, a reasonable conclusion from their evidence is that psychological treatment for Mr. R. is both reasonable and necessary.

For these reasons I was persuaded that an order requiring payment of interim benefits for sixteen sessions of psychological treatment, each of one and a half hour’s duration, pending the final order in this matter was reasonable, necessary and warranted in the circumstances of this case.

EXPENSES:

I leave the question of expenses in the discretion of the hearing arbitrator.

December 30, 2009

Suesan Alves Arbitrator

Date

Financial Services Commission of Ontario