Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 84 FSCO A10-000698

BETWEEN:

CHRISTOPHER HOANG (A MINOR BY HIS LITIGATION GUARDIAN, SAN TRIEU) Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Arbitrator Denise Ashby

Heard: April 26, April 27, April 28, May 2, May 3 and May 5, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Robert Ben for Christopher Hoang (A Minor By His Litigation Guardian, San Trieu) Todd J. McCarthy for Personal Insurance Company of Canada

Issues:

The Applicant, Christopher Hoang, (A Minor by His Litigation Guardian, San Trieu), was injured in a motor vehicle accident on August 6, 2004. Mr. Hoang applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal denied certain of Mr. Hoang’s claims for rehabilitation benefits. The parties were unable to resolve their disputes through mediation, and Mr. Hoang applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Hoang entitled to payment of rehabilitation benefits as follows:

(a) Tuition of $12,800.00 and related educational expenses of $500.00 in respect of Christopher Hoang’s admission to the Bond Academy as set out in Treatment Plan dated July 29, 2008; and

(b) Expenses of rehabilitation support worker services as set out in Treatment Plans dated December 11, 2009, May 11, 2010 and August 8, 2010;

claimed pursuant to section 15 of the Schedule?

2. Is Personal liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Hoang?

3. Is Personal liable to pay Mr. Hoang’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?

4. Is Mr. Hoang liable to pay Personal’s expenses in respect of the arbitration pursuant to subsection 282(11) of the Insurance Act?

5. Is Mr. Hoang entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Mr. Hoang is entitled to payment of $13,300.00 in respect of the tuition and related educational expenses of his admission to the Bond Academy.

2. Mr. Hoang is entitled to payment of rehabilitation support worker services as set out in Treatment Plans dated December 11, 2009, the sum of $14,303.72; May 11, 2010, the sum of $7,666.05 and August 8, 2010, the sum of $8,224.13.

3. Mr. Hoang is entitled to interest on the overdue payments of the expenses of the Bond Academy and rehabilitation support worker services.

4. Mr. Hoang is entitled to a Special Award fixed at $28,000.00, inclusive of interest.

5. The parties made no submissions with respect to expenses. If they are unable to resolve the issue between themselves they may request an expense hearing before me within 30 days of this decision pursuant to Rule 79 of the Dispute Resolution Practice Code.

PRELIMINARY ISSUE:

Personal is paying an attendant care benefit. The quantum of the monthly benefit is in dispute. Mr. Hoang sought to add this as an issue to be arbitrated notwithstanding it had not been mediated.

The Pre-hearing Arbitrator in his letter dated October 5, 2010 stated:

Following discussion between the parties it was agreed in principle that the issue should form part of the arbitration, but Mr. McCarthy requested further time to discuss and settle any terms consequent to the addition of this issue.

The parties have 14 days to advise me as to whether they have reached a consensus as to terms, in which case I will order that the issue be added. Failing that, a brief resumption of the pre-hearing may be necessary to deal with this issue.²

On October 20, 2010, Mr. Hoang’s counsel wrote to both Personal’s counsel and the Pre-hearing Arbitrator. He indicated if Personal was not consenting to the addition of quantum of attendant care as an issue for arbitration, a further pre-hearing was being requested.³ The Pre-hearing was not resumed.

Mr. Hoang submits that Personal’s silence in the face of the Pre-hearing Arbitrator’s time lines for voicing its objection was tacit consent to the addition of the issue.

Personal relies on the provisions of the Insurance Act and submits that in the absence of its consent an arbitrator has no jurisdiction to add the issue.

Subsection 281(2) of the Insurance Act provides:

No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under section 282 or agree to submit an issue for arbitration in accordance with the Arbitration Act, 1991 unless mediation was sought, mediation failed and, if the issues in dispute were referred for an evaluation under section 280.1, the report of the person who performed the evaluation has been given to the parties.

The statutory language is unambiguous. An issue cannot be referred to an arbitrator unless it has been mediated and failed. As mediation was not applied for and Personal has not consented I find there is no basis upon which the issue may be added.

EVIDENCE AND ANALYSIS:

Medical Evidence:

On August 6, 2004, Christopher Hoang, while attempting to retrieve his baseball cap which had been blown into the street, was struck by a car. He sustained a catastrophic brain injury. Christopher was 6 years old and had completed senior kindergarten. Since the accident, he has been supported by his family, the Holland Bloorview Kids Rehabilitation Hospital, (formerly the Bloorview MacMillan Children’s Centre and Bloorview Kids Rehab.), the Hospital for Sick Children and a multi-disciplinary team (Team) consisting of a case manager, psychologists, speech therapist, occupational therapist and a representative of his school.

The medical records indicate that Christopher underwent his first neuropsychological assessment in the fall of 2004 with the final report being issued on December 16, 2004. Dr. L. Dade opined that Christopher had difficulties with dual attention tasks such as listening and writing simultaneously. As well, he has a decreased processing speed which is consistent with “diffuse axonal injury due to brain trauma.” Although Christopher’s processing speed was average, his academic test results such as mathematics were superior. Dr. Dade suggested it was likely that Christopher’s processing speed had decreased as a result of the brain injury and might explain Christopher’s increased frustration and anxiety with respect to performance.⁴

Further psychological testing was conducted in the spring of 2005. The tests were administered to determine Christopher’s level of intellectual and socio-emotional abilities. The recommendations flowing from those tests for school adjustment were similar to those in the December 2004 report. However, individual psychotherapy for Christopher and family counselling were also recommended.⁵

On February 14, 2006, Christopher underwent another battery of neuropsychological tests. These tests confirmed that he continues to have slowed mental and motor processing. Christopher continues to manifest features of someone who has an acquired brain injury. The assessor recommended individual counselling for Christopher and his sister and couples therapy for their parents. As well, it was suggested that Christopher be provided with a tutor approximately twice a week.⁶

In September 2006, Christopher was seen for a follow-up by Dr. P.G. Rumney, at the Brain Injury Rehabilitation Clinic of Bloorview Kids Rehab. Difficulties with fatigue and aggressive behaviour towards his family were identified. The continuation of Rehabilitation Support Worker services (RSW) and counselling initiated since the assessments described above were supported. Further neuropsychological testing was recommended at the end of grade 5 to assist programming for the middle school years.⁷ This testing was subsequently conducted by Dr. McKinnon in January 2008 and her report is dated May 26, 2008.⁸

On September 3, 2008, Christopher was assessed by Dr. D L. MacGregor, a neurologist and paediatrician. She opined that:

This child thus has significant cognitive and behavioural deficits as a result of this accident. He is showing satisfactory scholastic functioning at the present time however, he must be considered to be at very high risk – given the findings of bilateral frontal lobe contusions, for emerging deficits in frontal lobe functioning during his adolescent years…

From the point of view of treatment to date, I would only note that for a period of, this child was not provided with supports at school and that this undoubtedly – although on a mild level, created frustration for him and he has persistent behavioural difficulties with aggression and frustration. The current headaches which he experiences are as a result of fatigue and school stressors.⁹

On October 27, 2008, Dr. Rumney reassessed him. He noted that Christopher was seeing an O.T. who was supervising an RSW. The RSW works with Christopher three times a week. As well, Christopher was continuing to work with his speech therapist. Dr. Rumney suggested a referral to Dr. A. Lefebvre, a paediatric psychiatrist, who would assess Christopher to determine whether medication would assist him and consult with Dr. Dong, who Christopher was seeing at the Main Street Clinic. In this report, Dr. Rumney commented on the Bond Academy. He would support admission to the Bond Academy if it would help with Christopher’s anxiety. While he noted that Christopher was doing well in the community with his current support, Dr. Rumney deferred to the opinions of Dr. McKinnon and the Team.¹⁰

In February 2009, Dr. Lefebvre assessed Christopher. She found that although Christopher was neither clinically depressed nor significantly anxious, he did exhibit symptoms of anxiety (tearfulness and hand twisting) when he discussed his brain injury. Christopher talked about letting his parents down because he was not achieving marks in his sister’s league. Dr. Lefebvre emphasized the need for Christopher’s parents to receive counselling. She also recommended a behaviour modification program to assist Christopher to practice his piano or do his homework. Dr. Lefebvre did not comment on either admission to the Bond Academy or Christopher’s work with an RSW.¹¹

A recent MRI conducted in the spring of 2010 shows atrophy in the frontal lobe.¹²

Rehabilitation Benefits:

Mr. Hoang claims rehabilitation benefits. Pursuant to subsection 15(2) of the Schedule, in force at the time of his accident, he must establish on a balance of probabilities that the tuition and related expenses of admission to the Bond Academy and the expenses of a Rehabilitation Support Worker are:

…reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and ….

Subsection 15(5) provides:

The rehabilitation benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in subsection (2) for,

(a) life skills training;

(c) social rehabilitation counselling;

(g) vocational or academic training; …

Ms. Trieu is Christopher’s mother and litigation guardian. She testified in support of her son’s claims for Rehabilitation Benefits. As well, Dr. Elaine McKinnon, a neuropsychologist, Dr. J. VanDeursen, psychologist, and Mavis Lee, Rehabilitation Support Worker, who are members of Christopher’s Team, testified. Dr. McKinnon and Dr. VanDeursen were qualified as experts. Dr. McKinnon was qualified as an expert in neuropsychology with a particular expertise in child psychology and Dr. VanDeursen as an expert in psychology. Dr. VanDeursen works with Dr. Dong, psychologist, at the Main Street Clinic referred to by Dr. Rumney.

Dr. Lawrence P. Tuff, neuropsychologist and Dr. Elaine MacNiven, neuropsychologist, were both qualified as experts in neuropsychology with particular expertise in child psychology. They had conducted assessments of Christopher on behalf of State Farm. As well, Mr. H. Movios, an adjuster employed by State Farm, testified.

Ms. Trieu testified that prior to the accident Christopher was a bright happy boy who was very confident. This description is consistent with that in his junior and senior kindergarten reports.¹³ However, after the accident Christopher became very difficult and required a lot of supervision and had problems at school.

On May 26, 2008, the Case Manager issued a report regarding the Team’s meeting. Christopher’s grade 4 teacher attended. She described Christopher as getting “easily distracted” and being “very emotional lately.” The teacher signed the Case Manager’s report on June 5, 2008 commenting on school changes for the coming year, but made no amendments to the section commenting on her observations of Christopher’s behaviour.

The Speech Pathologist also attended and reported observing Christopher in class. She commented that although he knows the rules, he “loses control in the situation.”

The RSW, at the time, also attended. She reported observing Christopher encroaching on someone’s personal space on the school grounds. She also described taking Christopher for a swim. Although initially excited about going, Christopher became very resistant, raising concerns about doors or the elevator getting stuck. She described him as panicking. However, he ultimately went and appeared to enjoy it.

In this report, the Case Manager reported that the Team discussed Christopher’s possible admission to a private school. The Team agreed that the smaller classes and after-school programs would be important to his socialization.¹⁴ This report was copied to Personal.

Dr. McKinnon testified and explained in her reports that the frontal lobe is the seat of abstract thinking, planning and problem solving or higher executive functioning.¹⁵ She referred to the recent MRI which indicates that Christopher has atrophy in this area of the brain. Dr. McKinnon testified that although Christopher has done well in school, this impairment will present challenges as he matures. As he progresses from childhood to adulthood it becomes necessary to process, reason and organize increasingly complex information and the impairment to the frontal lobe will likely become increasingly obvious.

Personal accepts that Christopher sustained a catastrophic brain injury within the meaning of section 2 of the Schedule. It submits that notwithstanding this impairment, Christopher’s school records indicate that he has had significant academic success achieving A or B averages with very few C’s in his post-accident academic records.¹⁶ As well, the school reports reflect a young boy who is quite social and integrated into classroom activities. Personal submits that Christopher’s family has unrealistic expectations for him academically as a consequence of the achievements of his older sister and two female cousins. As a consequence, they are seeking rehabilitation benefits which are neither reasonable nor necessary given Christopher’s performance and integration into his school community. Personal submits that the evidence of its two experts, Dr. MacNiven and Dr. Tuff, should be preferred to that of Dr. VanDeursen whose evidence is fatally flawed by virtue of his zealous advocacy for the Treatment Plans.

Tuition and Related Expenses

Mr. Hoang submits that the Bond Academy, a private school environment, is reasonable and necessary to his continued academic success as it provides an environment which would facilitate his social integration. The smaller class size afforded by a private school environment would maintain the academic successes he has enjoyed while assisting him to develop his abstract reasoning and higher executive functions. Ms. Trieu describes her son as being socially isolated. Christopher has few friends. At times Christopher has exhibited symptoms of extreme anxiety and agoraphobia. During grade 4 the Team including his teacher were very concerned about his social relationships.¹⁷ The Treatment Plan dated July 29, 2008 and related psychological report of Dr. VanDeursen dated July 25, 2008 set out the Team’s rationale for recommending the Bond Academy.¹⁸

I accept Dr. VanDeursen’s testimony that although he authored the report and Treatment Plan, they reflect the Team’s opinion that the Bond Academy provided programming that would sustain Christopher’s academic success and assist him to deal with increasingly abstract academic work. As well, the extensive after-school programming which included swimming, an activity that Christopher enjoys, would facilitate his developing friendships within his peer group.

Dr. McKinnon authored two reports related to the issue of attendance at the Bond Academy. The first was dated May 26, 2008 and the second was a rebuttal to Dr. MacNiven’s report dated November 25, 2008.¹⁹

In her report dated May 26, 2008, Dr. McKinnon provided her reasons for agreeing with the Team’s recommendation that a private school placement would be appropriate for Christopher commencing in grade 5. She opined:

Academically, Christopher is continuing to make steady and age appropriate gains in acquiring skills within current Language Arts and Math programmes. Mr. Hoang and Mrs. Trieu confirmed that he is a hard working student who can readily grasp new ideas and concepts but requires a high degree of predictability and structure for learning. Written expression, however, poses more of a challenge for Christopher particularly as more emphasis is placed on higher level organization, creativity and content development. In this regard, Christopher remains at risk academically. Moreover, the clear challenges in his executive cognitive development will only become more salient as he progresses academically and the curriculum demands become more complex and place greater emphasis on higher level organizational and processing skills.

At a recent case conference, Mr. Hoang and Mrs. Trieu spoke with Christopher’s rehabilitation team about the advisability of considering a private school placement for him in September 2008. Although his cognitive difficulties are subtle, I would anticipate that the more complex instructional demands of the middle and senior school curriculum are going to pose a greater challenge for Christopher. At this junction, Christopher would, in all likelihood, be better able to more efficiently and proactively realize his cognitive potential in a private school setting with a smaller teacher to student ratio as well as opportunities for additional and individualized support after school around homework and project completion. Of even greater relevance, Christopher will likely benefit to a greater extent from the more supportive psychosocial environment of the private school in better establishing and maintaining friendships.²⁰

Dr. McKinnon’s report indicates that Personal was on the distribution list.

Personal submits that given Christopher’s above average performance in school and the evidence that he is integrated into his classroom, his claim for tuition and related expenses of the Bond Academy are not reasonable and necessary to either Christopher’s academic training or his reintegration into the rest of society. It relies on Dr. MacNiven’s evidence and report.

On October 16, 2008, Dr. MacNiven issued her report. She notes that when she met with Christopher and Ms. Trieu, she explained: “…I was providing an independent neuropsychological opinion and that I was in no way responsible for any measures taken by the referral source or other parties as a result of my objective opinion.”²¹

At page 11 of her report, Dr. MacNiven indicates that Christopher “denied being shy or anxious about meeting other children, and he just feels that he does not have much in common with many of his peers.”

Dr. MacNiven opined:

It is clear from the neuropsychological assessment reports and the current data, although limited, that Christopher does not require an educational assistant or an Individual Education Plan (IEP). Of course, all children could benefit from smaller class sizes, but there is no indication that Christopher actually requires a small class size as a result of the accident.

There are no behavioural issues at school. Instead, the behavioural issues occur at home and it appears that certain contingencies were established initially after the accident and no one has intervened to address them. Based on the research literature regarding treatment of behavioural issues associated with brain injuries, it is my opinion that sending Christopher to the Bond Academy would not address his needs resultant from the accident. Although it does not appear that the behavioural issues at home are brain injury related because he is able to control himself in school and other environments (which one would expect if the results were related to frontal lobe dysfunction), the fact that the accident happened has led to the family dynamics that were established after the accident and that have played a role in the development and maintenance of the behavioural issues. In my opinion, enrolling Christopher at the Bond Academy would essentially be an “avoidance behaviour” and would allow the family to be excused from dealing with the problems that occur at home. Enrolling Christopher at the Bond Academy will not solve all of the issues. It may help with regard to the completion of homework; however, Christopher himself admitted during this assessment that his school has a homework program after school, but he had not been aware of it until shortly before this appointment. In addition, he can be assisted in joining community based activities to aid with socialization with other children.²²

In her testimony, Dr. MacNiven reiterated her opinion that an Individual Education Plan (IEP) was unnecessary for Christopher and he would not qualify for one in any event.

On August 15, 2008, Grace Mancini, Claims Advisor, issued an OCF 9 refusal to pay the benefit on behalf of Personal. She stated: “Treatment plan is not approved at this time. An Insurers Examination is requested to obtain second opinion of the proposed tuition for Bond Academy.” Ms. Mancini was the representative of Personal who received the Team report dated May 26, 2008.²³

On September 5, 2009, Personal’s “log notes” indicate that:

…WE HAVE SCHEDULED A NEUROPSYCH ON SEPT 12/08 TO ADDRESS A TX PLAN FOR PRIVATE SCHOOL. THE CLIENT IS CURRENTLY UNDERGOING A NEUROPSYCH ASSESSMENT ON THE TORT SIDE. WE CANNOT CONDUCT 2 NEUROPSYCH’S IN SUCH A SHORT PERIOD OF TIME. SPOKE WITH BEV HAND ON THIS ISSUE. SHE CONFIRMED WITH BICA THAT THE CLIENT HAS ALREADY ATTENDED THE FIRST PART OF THE NEUROPSYCH ASSESSMENT AT THE END OF AUG. THE SECOND HALF IS SCHEDULED FOR SEPT. 10. BEV SUGGESTED THAT WE SPEAK WITH THE LAWYER AND SEE IF SHE AGREES TO HAVE THE DEFENCE NEUROPSYCH (DR. STEPHENS) COMMENT ON THE TREATMENT PLAN AND ALLOW US TO PROVIDE A COPY OF THE AB FILE.²⁴

On September 9, 2009, the log notes indicate that Mr. Hoang’s counsel had agreed to providing a copy of the AB file to Dr. Stephens to facilitate her commenting on the Treatment Plan.

A further note on that date indicates that while Dr. Stephens agreed to review the Treatment Plan, Personal decided not to proceed in this manner on the advice of its counsel.²⁵

On October 10, 2008, the log notes indicate that Ms. Kool made the following entry:

CALLED EMILY BACK @ MEDISYS: THEY HAVE SPOKEN WITH DR. STEVENS [sic] WHO DID THE DEFENSE MEDICAL AND THE RAW TEST DATA SCORES WILL NOT BE AVAILABLE UNTIL 6-8 WEEKS. DR. MACNIVEN CAN PROVIDE A PRELIMINARY REPORT AT THIS TIME AND THEN AN ADDENDUM ONCE THE RAW TEST DATA SCORES ARE AVAILABLE. I ADVISED AS LONG AS HER REPORT WAS CLEAR THAT THIS WAS A PRELIMINARY REPORT AND EXPLAINED THE ABOVE THIS WOULD BE OK.²⁶

Ms. Kool’s log note entry of October 24, 2008 indicates she issued the OCF-9 and notes Dr. MacNiven’s recommendations that a trained behavioural psychologist complete an in-home assessment to develop a behaviour modification program. Ms. Kool does not refer to her previous instructions that Dr. MacNiven’s report was preliminary and should be identified as such.

On October 25, 2008, Andrea Kool, Claims Advisor, issued a further OCF- 9 in which she stated:

We have received the Insurer Examination report. Based on this report, you are not entitled to the Medical and Rehabilitation benefit.

Re: Bond Academy Tuition for Grade 5 for 2008-2009 recommended by Dr. VanDeursen. Total cost $12,800, plus books & uniform of $500.

Please refer to our letter of today’s date and the Insurer Examination report of Dr. MacNiven dated October 16, 2008.²⁷

Dr. MacNiven testified that she did not receive Dr. McKinnon’s raw test data and was unaware that her report was to be preliminary pending receipt and review of that data. Although Dr. MacNiven was satisfied that her testing was valid, she stated it “would have been nice to have the other data.”

Based on Ms. Kool’s log notes, I find that there was no intention to provide Dr. MacNiven with Dr. McKinnon’s raw data. Personal intended to provide Dr. Stephens’ raw scores and this was not done.

The four psychologists testified that generally neuropsychological or psychological testing should not be conducted more than once in a year. This is to avoid a “practice effect” undermining the validity of the test results.

Dr. MacNiven and Dr. Tuff testified that the effect can be minimized by administering different tests.

Dr. McKinnon testified that in attempting to minimize the effect, Dr. MacNiven had administered tests which are not standardized for children of Christopher’s age. Therefore, those test results would be less reliable.

Christopher was initially administered neuro-psychological tests by Dr. Dade in the fall of 2004. Further testing was conducted in the spring of 2005. Dr. McKinnon updated neuro-psychological testing in January, 2008 to assess Christopher’s recovery to that date and to identify his residual impairments.²⁸ In August and September, 2008, Christopher was tested by Dr. Stephens for the tort action. Further neuro-psychological tests were administered that month by Dr. MacNiven.

I find this to be an inordinate amount of neuro-psychological testing which undermines the validity of the tests administered after those of Dr. McKinnon. Therefore, I prefer Dr. McKinnon’s results to those of Dr. MacNiven who had further compromised the reliability of her testing by administering tests not standardized for Christopher’s age group.

Section 49 of the Schedule provides:

If an insurer refuses to pay a benefit under this Regulation or reduces the amount of a benefit that a person is receiving under this Regulation, the insurer shall provide the person with a written notice concerning the person’s right to dispute.

In Smith v. Co-operators General Insurance Company, the Supreme Court held that the notice of refusal must be “in straight forward and clear language directed towards an unsophisticated person.”²⁹

The initial OCF 9 denied the benefit on the basis that an Insurer’s Examination was required. The second, dated October 25, 2008, stated:

We have received the Insurer Examination report. Based on this report, you are not entitled to the Medical and Rehabilitation benefit.

Re: Bond Academy Tuition for Grade 5 for 2008-2009 recommended by Dr. VanDeursen. Total cost $12,800, plus books & uniform of $500.

Please refer to our letter of today’s date and the Insurer Examination report of Dr. MacNiven dated October 16, 2008.

There are no reasons provided save to state that based on the report of Dr. MacNiven “you are not entitled.” However, it is apparent that Dr. MacNiven perceived her role as confined to providing an opinion, not that of a decision maker. She stated she is “in no way responsible for any measures taken by the referral source or other parties as a result of my objective opinion.”

Ms. Kool did not testify. I was not provided with a copy of the letter referred to in Ms. Kool’s denial and therefore I find that it was an administrative covering letter. As Mr. Movios did not make the decision with respect to the tuition and related expenses, his evidence was of no assistance.

Where the insurer has numerous reports from an applicant’s treating medical professionals supporting a benefit, it is not sufficient to merely state that based on the insurer’s examination the benefit is denied. The insurer must provide reasons in “straight forward and clear language” for preferring its sole report to those of the treatment team.

It is the responsibility of the insurer to adjust a file in the utmost good faith. Blind acceptance of a report that purports to give a basis for denial does not fulfill this obligation. Particularly when the decision maker believes the report upon which she relies is a preliminary report, knew or ought to have known that the testing administered by Personal’s examiner was “too close” to ongoing testing, and some of the tests were not standardized for Christopher’s age group.

Therefore, I find that Mr. Hoang was not given a notice of denial which complies with the provisions of section 49 as interpreted by the Supreme Court in Smith v. Co-operators General Insurance Company and is entitled to payment of these expenses.

Further, I prefer the opinions of the Team and Dr. McKinnon to that of Dr. MacNiven. She denies that there are any behavioural problems outside of the home. The May 26, 2008 Team report and Dr. Rumney’s report of October 27, 2008 suggest otherwise. As well, Dr. D.L. MacGregor’s September 3, 2008 opinion was Christopher “has significant cognitive and behavioural deficits as a result of this accident.” Notwithstanding Christopher’s report cards which describe him as working well with his classmates, the teacher’s report to the Team indicates that in grade 4 Christopher was exhibiting immature behaviour which compromised his ability to make friends. I find that Christopher’s comments to Dr. MacNiven that he has nothing in common with his peers was his way of explaining that he has few friends.

I also find the Team’s analysis is persuasive regarding the challenges in abstract thinking and organizational skills becoming more pronounced. Christopher is described in all of the reports before me as intelligent and wanting to please. Consistent with this is his adopting a strategy of working hard to control inappropriate displays of temper until he is in the safety of his home. Dr. McKinnon and Dr. VanDeursen agree that the frontal lobe impairments are subtle. Given this, it is not surprising that Christopher is able to exert more control in social settings than someone whose deficits are more obvious.

Therefore, I find that in the spring and summer of 2008 it was both a reasonable and necessary plan to have Christopher admitted to the Bond Academy for grade 5. Its smaller class size and after-school programming would have provided significant opportunities for Christopher to find more commonality with his peers and thus expand his social circle. There is no evidence that there were suitable community programs available for Christopher which would have equated with those offered by the Bond Academy. Socialization was a significant concern for the Team and this setting would have addressed those concerns more readily than the public school system.

Further, Personal submits that subsection 15(2) requires that the insurer “pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability…” As there was no application for admission submitted to the Bond Academy there were no measures undertaken which would fulfill the requirements of this provision.

I do not agree. I find that the family undertook to investigate the appropriateness of the Bond Academy program by taking a tour with Christopher. The parents raised the idea with the Team. The Team agreed with the plan but also obtained its consulting Neuropsychologist’s endorsement before submitting the requisite Treatment Plan. Dr. Rumney of the Holland Bloorview Kids Rehabilitation Hospital was also consulted, and he deferred to the Team’s opinion. I find that these measures are more than sufficient to meet the requirements of the subsection.

As well, Personal submits that there is no jurisdiction to order tuition and expenses of a private school as academic modifies vocational training in subsection 15(5)(g) and cannot stand alone.

The subsection provides for “vocational or academic training.” The Schedule must be interpreted within the context of the benefit being claimed in a purposeful manner. In the context of Mr. Hoang’s claim, it must be interpreted as standing alone as either vocational or academic training. I do not find that there is any ambiguity in the language.

On the basis of the foregoing, Mr. Hoang is entitled to payment of the $13,300 claimed in respect of the tuition and related educational expenses of Bond Academy for the school year 2008 to 2009.

Rehabilitation Support Worker

There are three Treatment Plans relevant to the claim for expenses of a Rehabilitation Support Worker. They are dated: December 11, 2009, the sum of $14,303.72; May 11, 2010, the sum of $7,666.05 and August 8, 2010 the sum of $8,224.13.³⁰

The December 11, 2009 Treatment Plan is referenced in Dr. Tuff’s report. The Treatment Plan and Personal’s Explanation of Benefits were not tendered as exhibits. However, the parties did not object to being bound by the description of the Treatment Plan in Dr. Tuff’s report.

Dr. Tuff’s report dated February 9, 2010, sets out the treatment sought in the Treatment Plan dated December 11, 2009 as follows:

The purpose of this assessment is to determine whether the proposed Treatment Plan (OCF18) submitted by Dr. John VanDeursen, Psychologist, of Main Street Psychological Centre and Christine Kalkanis, Social Worker, of Post Traumatic Rehabilitation Services and dated December 11, 2009 is reasonable and necessary with respect to the motor vehicle accident of August 6, 2004. The Treatment Plan lists the following providers: Christine Kalkanis, SW– Provider A; Sharleen Calner, RHC – Provider B; and Sandy Grant, RHC – Provider C. Specifically, the Treatment Plan is requesting the following goods and services: 128 counts of Behavioural therapy (4hrs/day, 2 days per week) ($58.00 each) – Provider B; 3200 counts of Mileage (fluctuates if client in car) ($0.65/KM each) – Provider B; 32 counts of travel time ($58.00 each) – Provider B; 2 counts of team meeting ($116.00 each) – Provider B; 200 counts of Mileage (meeting) ($0.65/KM each) – Provider B; 2 counts of Travel time (meeting) ($58.00 each) – Provider B; Preparation of treatment plan ($63.72) – Provider A; 16 counts of Miscellaneous expenses ($50.00 each) – Provider B; 3 counts of Communication with team ($58.00 each) – Provider B; Prepare of progress report ($232.00) – Provider B; 4 counts of File supervision/planning ($125.00 each) – Provider A; and 12 counts of RSW supervision/planning ($58.00 each) – Provider C, for an Auto Insurer total of $14303.72 and in relation to the following listed impairments: Acquired brain injury; and Ongoing physical limitations/adjustment issues.³¹

Ms. Trieu testified that the family has paid for an RSW since they observed deterioration in Christopher’s behaviour following State Farm’s termination and denial of the benefit. However, they had to reduce the amount of the support due to affordability. Therefore they paid for the RSW to attend for a twice weekly three-hour session.

Ms. Trieu, Dr. VanDeursen and Ms. Lee testified that RSW services assist Christopher with developing social skills, strategies for dealing with his impairments and implementing the recommendations of the Speech Pathologist. Dr. VanDeursen testified that the RSW is an essential service required to reduce the effects of Christopher’s brain injury in reintegrating him into his family and the rest of society.

Again, Personal relies on Christopher’s school records to support its submission that the RSW services are neither a reasonable nor necessary expense. As Christopher is a high achieving student who is described as relating well to both his teachers and fellow students, such services are unnecessary. Personal submits that the family has extremely high expectations for academic achievement that are in themselves unreasonable and unattainable.

Personal relies on Dr. Tuff’s testimony that the RSW’s involvement with Christopher could iatrogenically cause a failure of socialization. Dr. Tuff explained that it is not normal for an adult to shadow a child engaged in extracurricular activities. This sets the child apart which makes it difficult for the child to make friends.

Dr. VanDeursen authored a rebuttal to Dr. Tuff’s assessment on March 22, 2010. He wrote that Dr. Tuff erred in characterizing the twice weekly four-hour sessions as “individual child psycho-logical counselling [sic].” Dr. VanDeursen explained that the purpose of the Treatment Plan was:

…In this instance, the proposed role for the Rehabilitation Support Worker is closely tied to the rehabilitation goals pursued by the more senior team members (i.e., RSW implementing interventions designed by OT, Speech Language, Psychology). In particular (and not discussed by Dr. Tuff) the tutoring component of the proposed Rehabilitation Support Worker services intends to implement goals and strategies following from Speech Language programming (the need to provide supports for specific language based processing deficits have repeatedly been identified). I note that “simply using a high school student for tutoring” as proposed by Dr. Tuff would not address this programming need.³²

On February 6, 2009, Dr. MacNiven reported that her testing supported Christopher benefiting from “ongoing assistance with oral and written communication skills, which would be within the domain of speech language therapy, which falls outside of my professional capacity as a neuropsychological consultant. The current results do not indicate any psychoemotional concerns that require any individual treatment at this point.”³³

On March 31, 2009, Ms. Patty Young, Speech Language Pathologist, wrote a rebuttal to Dr. MacNiven’s report. Ms. Young described the history of her involvement with Christopher as follows:

…He has been followed for speech-language pathology services (weekly therapy, monthly or bi-monthly consultation) by this writer since he was a Day Patient at Bloorview MacMillan Children’s Centre in October 2004 when he was 6 years old. At that time, although Christopher presented as a bright young boy with many preserved cognitive-communication, speech and language skills, a number of areas of concern were identified in the initial cognitive communication/speech-language assessment report dated November 10, 2004. These included word retrieval difficulties, attention and concentration problems, impulsivity, language pragmatic difficulties, reduced comprehension of some aspects of abstract language, and reduced cognitive flexibility. Written language difficulties were identified at a later time (he refused to engage in any writing tasks at all during the initial assessment). Results such as these, (i.e. that indicate preserved areas of strength, but also the existence of some gaps in abilities), are common in individuals who have sustained an acquired brain injury (ABI).

Since the time Christopher was first seen, he has made several gains in his cognitive-communication skills. He has been able to learn strategies to improve his attention and concentration skills and his language comprehension for some aspects of abstract language has improved. He has also learned to verbally list a number of word retrieval strategies and language pragmatic (social conversation) strategies. However, the generalization of these strategies to spontaneous situations outside of therapy continues to be poor, an observation commonly seen in individuals with acquired brain injuries. ...

These communication challenges (language pragmatics, discourse and word retrieval difficulties), coupled with Christopher’s anxiety about participating in community activities, has impacted negatively on his interaction with people in the community in the past, and are likely to do so in the future. It is essential that Christopher continue to be supported by a rehabilitation support worker in order to facilitate the generalization of these strategies to real-life natural environments (i.e. by having him practice the strategies in many different types of social situations that cannot be replicated during individual SLP sessions). ...

Providing Christopher with the services of a rehabilitation support worker who can carry out the goals and objectives of the speech-language (cognitive-communication) intervention, is more cost-effective than increasing the Speech-Language Pathologist’s allotment, as the former can provide more intensive services for a longer period at less cost.³⁴

Dr. Tuff concluded that the above noted services were not reasonable and necessary. He opined that:

This 11-year-old youth sustained a significant head injury in the accident of August 6, 2004 from which he appears to have made an excellent recovery from both a psychological and neuropsychological point of view. Current parental concerns are focused primarily around Christopher’s homework completion and social involvement (and the parent-child conflicts that arise in these contexts). It is his parent’s difficulties adjusting to the trauma of the accident and the potential impact they worry the accident has had on his academic and vocational outlook that is the primary problem at the present time; however, (neither Christopher nor his teacher report any clinically significant psychological, cognitive or adaptive problems). It is not clear how individual child psychological counselling [sic] would be warranted or of any benefit at this time. Simple strategies to provide homework assistance (the help of a local high school tutor a couple times a week around homework completion) rather than individual psychotherapy would go a long way to dealing with many of the current concerns.³⁵

Dr. Tuff submitted a rebuttal report on June 30, 2010. It does not appear that Dr. Tuff had the benefit of Ms. Young’s rebuttal report of March 31, 2009 although he had Dr. MacNiven’s report dated February 6, 2009 when he assessed Christopher on January 26, 2010. His opinion was unchanged notwithstanding his review of Dr. VanDeursen’s rebuttal report of March 22, 2010.

Dr. T. Dumitrascu, a psychologist, assessed Christopher on July 9, 2010 on behalf of Personal in respect of the Treatment Plan dated May 10, 2010. Dr. Dumitrascu agreed with Dr. Tuff’s recommendation that academic tutoring be provided for the academic year 2010 to 2011. She declined to comment on the reasonableness of the cost of the proposed treatment.³⁶ Among the reports reviewed by Dr. Dumitrascu were Ms. Young’s report dated April 13, 2010 and the Occupational Therapy reports dated October 6 and October 27, 2009.

On July 9, 2010, Dr. Rumney reassessed Christopher who was accompanied by his parents and his Occupational Therapist. He indicated that he was “disturbed” that Christopher did not have an Individual Education Plan. Dr. Rumney recommended one be developed to permit longer time for test completion and that a quiet environment for doing tests be provided, as well as ongoing rehabilitation support including speech pathology, twice per month, monthly O.T. intervention, tutoring 1 to 2 times per week, supportive counselling with Dr. Dong, assessment by a sleep clinic and some massage therapy for his back and ankle pain.³⁷

On August 3, 2010, Dr. Lefebvre reassessed Christopher who was accompanied by his parents and the Case Manager. Dr. Lefebvre agreed with the Case Manager’s opinion that Christopher has difficulty coping with activities outside the home and stated: “it is essential for Christopher to have a rehabilitation therapist to provide carry-over [sic] of therapeutic goals in the community…”³⁸ Dr. Lefebvre saw Christopher again on August 26, 2010. She reiterated her support for a rehabilitation worker and had offered to speak with a representative of Personal by telephone but had not yet been contacted.³⁹

On January 24, 2011, Christopher was again seen at the Brain Injury Rehabilitation Follow-up Clinic of Holland Bloorview Kids Rehabilitation Hospital. On this occasion he was seen by Dr. Hung, a paediatric neurologist. Dr. Hung attributed Christopher’s success following the brain injury to the multi-disciplinary support he has had. He recommended that the support continue at the level being provided. Specifically, Christopher should continue to have speech and language therapy, occupational therapy including an RSW to assist with his reintegration into the community. Dr. Hung recommended continued counselling with Dr. Dong to assist Christopher in coping with anxiety. Family counselling should be continued with Dr. VanDeursen. Dr. Hung recommended that the whole family should be seen by Dr. VanDeursen in order to observe the interaction between Christopher and his parents. As well, Christopher should continue to see Dr. Lefebvre in respect of anxiety and medications.⁴⁰

I am persuaded that each of the three Treatment Plans recommending the involvement of an RSW were both reasonable and necessary. The medical reports throughout 2008, 2009, 2010 and lastly in January 2011, indicate that the assistance of an RSW was important for Christopher’s social reintegration, developing strategies for dealing with his organizational and language deficits and practicing those strategies in social situations. I find that the reports of Dr. Tuff and Dr. Dumitrascu fail to deal with the Occupational Therapy and speech therapy elements of those treatment plans. This is understandable as such treatment is not within their sphere of expertise.

I agree with the opinions of various health care professionals that if Christopher were to attend the Bond Academy, it would have been necessary to obtain a focused and detailed plan of the integration of the school program with the treatment goals of the RSW services. This would likely reduce the cost of the RSW services. However, as he did not attend a private school, I find that Personal shall pay Mr. Hoang $30,193.90 for Rehabilitation Support Worker services as set out in Treatment Plans dated December 11, 2009, the sum of $14,303.72; May 11, 2010, the sum of $7,666.05 and August 8, 2010, the sum of $8,224.13.

Interest:

Mr. Hoang is entitled to interest for the overdue payment of Rehabilitation Benefits in respect of his claims for tuition and related educational expenses of his admission to the Bond Academy and the expenses of Rehabilitation Support Worker services pursuant to subsection 46(2) of the Schedule.

SPECIAL AWARD:

Having found that Mr. Hoang is entitled to both the Rehabilitation Benefits claimed, I will now consider whether Personal’s failure to pay those benefits was unreasonable within the meaning of subsection 282(10) and therefore warrants a special award.

Subsection 282(10) of the Insurance Act provides:

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 Statutory Accident 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.

Mr. Hoang submitted a DVD entitled “Impact Statements: Repeated Denial of Services” in support of her claim for a special award. The DVD contains statements of members of the Team and Ms. Trieu.⁴¹

During the hearing I declined to view the DVD except for those portions that were played during a witness’s testimony. However, I ruled that were I to find that Mr. Hoang was entitled to either of the rehabilitation benefits claimed, I would then view the DVD in its entirety.

The statements of the Team members, not called as witnesses, were unsworn and untested. Therefore, the opinions they expressed regarding the impact of Personal’s failure to accept the Treatment Plans cannot be relied upon. However, where a Team member’s DVD statement referred to areas dealt with in their reports admitted as Exhibits, I have relied on their written reports.

The testimony of Ms. Trieu and the other Team members was generally consistent with their statements on the DVD and where there was inconsistency, I have relied on their sworn testimony and their admitted reports.

On the basis of the foregoing, I place no weight on the DVD.

In Gan Canada Insurance Company and McConachie, the Director’s Delegate applied Erickson and The Guarantee Company of North America in holding that an insurer’s conduct need not be egregious to be unreasonable and cited the caution in Cripps and AXA Insurance Canada, that arbitrators should not judge an insurer’s actions on the basis of hindsight or hold an insurer to a standard of perfection having scrutinized its conduct as if under a microscope.⁴²

I find that Personal failed to reasonably assess the medical information available from Christopher’s Team and the medical professionals who assessed and treated him from The Hospital for Sick Children and Bloorview Kids Rehabilitation Hospital. I find that Personal acted unreasonably in denying Mr. Hoang’s claims for the expenses associated with admission to the Bond Academy and the services of a Rehabilitation Support Worker.

There was prodigious support from the treating health professionals, including those not on Christopher’s Team, for the involvement of an RSW.

I find that Personal’s reliance on the assessments of Dr. MacNiven, Dr. Tuff and Dr. Dumitrascu in the face of the overwhelmingly consistent opinions and reasoning of the Team and the other professionals who followed Christopher, amounts to an unreasonable disregard of the available information relating to the two rehabilitation benefits.

Personal’s failure to pay for the services of an RSW given Christopher’s tender years, his catastrophic impairment and the medical opinion that Rehabilitation Support Worker services were necessary for his progress, amount to a stubborn refusal to pay a reasonable and necessary benefit.

Personal’s conduct requires a significant award which I fix at $28,000.00 inclusive of considerations of interest.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue, failing which they may request an expense hearing before me within 30 days of this decision pursuant to Rule 79 of the Dispute Resolution Practice Code.

September 29, 2011

Denise Ashby Arbitrator

ARBITRATION ORDER

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

1. Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), $13,300.00 in respect of tuition and related educational expenses of his admission to the Bond Academy for the school year 2008 to 2009.

2. Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), $30,193.90 for rehabilitation support worker services as set out in Treatment Plans dated December 11, 2009, May 11, 2010 and August 8, 2010.

3. Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), interest on the overdue payments in respect of the expenses of the Bond Academy and the rehabilitation support worker services in accordance with subsection 46(2) of the Schedule.

4. Personal shall pay Christopher Hoang, (A Minor By His Litigation Guardian, San Trieu), a Special Award fixed at $28,000.00, inclusive of interest.

September 29, 2011

Denise Ashby Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Pre-hearing letter dated October 5, 2010
3. 3Exhibit 2, letter dated October 20, 2010
4. 4Exhibit 6, Tab 5, page 6
5. 5Exhibit 6, Tab 7, pages 15 to 17
6. 6Exhibit 6, Tab 8, pages 20 to 25
7. 7Exhibit 6, Tab 9
8. 8Exhibit 6, Tab 11
9. 9Exhibit 6, Tab 12, pages 21 and 22
10. 10Exhibit 6, Tab 13
11. 11Exhibit 6, Tab 14
12. 12Exhibit 10, Tab 2 and Tab 3, page 4
13. 13Exhibit 3, Tab 1, pages 38 to 41
14. 14Exhibit 3, Ontario School Records, Tab 1, pages 126 to 130
15. 15Exhibit 6, Tab 11, page 16 and Tab 21, page 21
16. 16Exhibit 3, Tab 1, page 41
17. 17Exhibit 3, Ontario School Records, Tab1, pages 126 to 130
18. 18Exhibit 19
19. 19Exhibit 6, Tab 11 and Exhibit 7, Tab 2
20. 20Exhibit 6, Tab 11, page 16
21. 21Exhibit 16, Tab 3, page 2
22. 22Exhibit 16, Tab 3, page 42
23. 23Exhibit 16, Tab 1, page 2
24. 24Exhibit 17, page 61
25. 25Exhibit 17, page 62
26. 26Exhibit 17, page 64
27. 27Exhibit 16, Tab 1
28. 28Exhibit 6, Tab 11, page 2
29. 29[2002], 2 S.C.R., page 7
30. 30Exhibits 21 and 22
31. 31Exhibit 16, Tab 6, page 2
32. 32Exhibit 5, Tab 7, page 2
33. 33Exhibit 5, Tab 3, page 21
34. 34Exhibit 5, Tab 4, pages 1 to 3
35. 35Exhibit 16, Tab 6, page 12
36. 36Exhibit 16, Tab 10
37. 37Exhibit 6, Tab 18
38. 38Exhibit 6, Tab 19
39. 39Exhibit 6, Tab 20
40. 40Exhibit 6, Tab 22
41. 41Exhibit 8
42. 42(FSCO P97-00069, October 28, 1998), page 3