Financial Services Commission of Ontario

Neutral Citation: 2012 ONFSCDRS 110

FSCO A09-002594

BETWEEN:

JEYAPALAN SUBRAMANIAM

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

*Minor errors on pages 4 and 18 and Order corrected on July 31, 2012 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Arbitrator Jeffrey Rogers

Heard: January 31 to February 3, 2011, March 26 to 29, 2012, and April 2 and 3, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. David S. Wilson, solicitor for Mr. Subramaniam

Mr. J. Claude Blouin, solicitor for Wawanesa Mutual Insurance Company

Background:

The Applicant, Jeyapalan Subramaniam, was injured in a motor vehicle accident on January 22, 2008. He was driving his 1994 Honda Civic when he was involved in a high impact collision. The accident caused extensive damage to the Honda on the front driver’s side. Emergency responders pried open the driver’s door and removed Mr. Subramaniam from the vehicle. The Honda was written off.

Mr. Subramaniam applied for and received various statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹

Wawanesa terminated attendant care benefits and housekeeping and home maintenance benefits on November 9, 2008 and June 30, 2009. It then terminated income replacement benefits on August 14, 2010. Wawanesa also refused to pay for some treatment Mr. Subramaniam requested. The parties disagree about his entitlement to these accident benefits. They were unable to resolve their disputes through mediation, and Mr. Subramaniam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

Attendant care benefits: Mr. Subramaniam claims $3,000 per month, from January 22, 2008 (date of accident) to September 22, 2008 and $1,364.65 per month from September 23, 2008 to (104 weeks) January 21, 2010 (less $6,827.95 paid).
Housekeeping and home maintenance benefits: Mr. Subramaniam claims $85 per week (less $3,588.92 paid), from January 22, 2008 to January 21, 2010.
Income replacement benefits (IRBs): Mr. Subramaniam claims $362.29 per week, from August 15, 2010, to present and ongoing.
Medical benefits: Mr. Subramaniam claims $2,378 for treatment at Pro Med, as set out in treatment plan dated April 15, 2009, and no less than $2,540.40 and no more than $4,877.51 for treatment by Dr. Shaul, as set out in treatment plan, dated June 22, 2010.
A special award: Mr. Subramaniam claims a special award with regard to all benefits.
Interest: Mr. Subramaniam claims interest for the overdue payment of benefits.
Arbitration Expenses: Both parties claim their expenses of the arbitration.

Result:

Attendant care benefits: Mr. Subramaniam is not entitled to the claimed attendant care benefits.
Housekeeping and home maintenance benefits: Wawanesa shall pay Mr. Subramaniam $85 per week (less $3,588.92 paid), from January 22, 2008 to November 9, 2008, $6.66 per week, for 4 weeks from November 10, 2008, and $6.66 per week, from July 1, 2009 to January 21, 2010.
Income replacement benefits (IRBs): Wawanesa shall pay Mr. Subramaniam $362.29 per week, from August 15, 2010, to present and ongoing.
Medical benefits: Mr. Subramaniam is not entitled to the claimed medical benefits.
A special award: Mr. Subramaniam is not entitled to a special award.
Interest: Wawanesa shall pay Mr. Subramaniam interest for the overdue payment of benefits at the rate of 2 per cent per month, compounded monthly.
Arbitration Expenses: The decision on arbitration expenses is reserved.

EVIDENCE AND ANALYSIS:

Overview

Mr. Subramaniam’s most significant injury in the accident was multiple undisplaced hairline fractures of the left knee. He also suffered soft tissue injuries to his neck, back and chest. The fractures have healed but Mr. Subramaniam continues to experience pain in his left knee. Mr. Subramaniam developed pain in his right knee as well, several months after the accident. It has never subsided. He still complains of pain in the neck, related headaches, pain in both shoulders, upper and lower back pain, and chest pain. He started to have difficulty sleeping, soon after the accident. He says he still has difficulty sleeping. In addition, he developed emotional and psychological issues after the accident which, he says are not fully resolved.

Mr. Subramaniam immigrated to Canada from Sri Lanka in 1985. He has been employed most of the time since coming to Canada, with brief periods of unemployment. His tax returns show steady employment in the 4 years before the accident.² He was laid off a few months before the accident when his long term employer moved its operations to Mexico. He was looking for work at the time of the accident, while receiving Employment Insurance Benefits.

Prior to the accident Mr. Subramaniam had been diagnosed with diabetes, hypertension and heart disease. These conditions were under control through medication and had not caused him to miss work for any significant period. He had no history of musculoskeletal injury or disease. He was independent with regard to self-care and he shared housekeeping duties with his wife. Although his heart condition has deteriorated since the accident, no one has concluded that he would be unable to work or engage in his other pre-accident activities, solely as a result of his diagnosed, pre-accident health issues.

Mr. Subramaniam has not worked since the accident. He has also ceased performing his pre-accident housekeeping activities. He no longer drives. He claims that he required attendant care for the two years following the accident.

There is no dispute that Mr. Subramaniam suffers some ongoing, accident-related impairment. Pain in his left knee is his main complaint. This is the principal reason for his claimed restrictions with regard to housekeeping and employment, and the basis of his claim for attendant care. Wawanesa says that the pain in Mr. Subramaniam’s knees was not caused by the accident. Wawanesa’s position is that Mr. Subramaniam is able to work and perform his pre-accident housekeeping and self-care tasks, despite any accident-related impairments.

The dispute between the parties is therefore resolved by first determining Mr. Subramaniam’s ongoing accident-related impairments and then assessing whether those impairments prevent him from engaging in the relevant pre-accident activities, or justify payment for the treatment in dispute.

Impairments as a result of the accident:

1) Left Knee

Mr. Subramaniam has arthritis and a torn meniscus in his left knee. He walks with a limp and uses a cane. His left thigh has begun to shrink from prolonged lack of use. But the fractures to his left knee that Mr. Subramaniam suffered in the accident are fully healed. Wawanesa’s position is that the arthritis and torn meniscus were there before the accident. It argues that any ongoing impairment with regard to the left knee is caused by these pre-existing conditions and not to the accident. Mr. Subramaniam submits that the accident caused the torn meniscus and caused his previously asymptomatic arthritis to become symptomatic.

I find that Mr. Subramaniam had arthritis and a torn meniscus in his left knee before the accident, but I reject Wawanesa’s submission that his left knee impairments are not caused by the accident.

Mr. Subramaniam was taken from the scene of the accident to the Toronto Western Hospital. Its records³ show that an x-ray of his left knee was taken on the date of the accident. The report states: “[V]iews of the left knee show mild osteoarthritis in the medial joint compartment.”

Later, an MRI confirmed the pre-existing arthritis. After he was released from the hospital, Mr. Subramaniam received follow-up care from Dr. Veillette at the Toronto Western fracture clinic. Dr. Veillette noted on June 24, 2008 that Mr. Subramaniam “continues to have pain, localized predominantly to the medial aspect of his knee.”⁴ Dr. Veillette suspected that Mr. Subramaniam may have suffered a meniscal tear at the time of the fracture. He therefore requisitioned an MRI which was done on July 17, 2008.

The MRI report⁵ states that the image revealed “a large degenerative tear involving the posterior horn and extending to the body of the medial meniscus.” The MRI also confirmed the osteoarthritis at the medial joint compartment that the x-ray had shown. The MRI radiologist rated the arthritis as moderate, not mild. The MRI also revealed “moderate-to-severe osteoarthritis at the patellofemoral joint with fissuring and cartilage irregularities” and “[M]ild tibiofibular osteoarthritis.” The report further noted “moderate tendinosis” of the patella tendon.

Two opinions link a torn meniscus to the accident. First to do so was Dr. Khalid Syed, an orthopaedic surgeon who assessed Mr. Subramaniam at the Toronto Western Hospital on October 2, 2009. He states in a report dated October 2, 2009⁶: “This patient likely has a tear in his lateral meniscus, which he sustained at the time of injury.”

Dr. Syed was apparently unaware of the earlier MRI which had shown a tear in the medial meniscus and no abnormality in the lateral meniscus. I do not find Dr. Syed’s opinion, expressed without the benefit of an MRI, to be persuasive.

The second opinion is that of Dr. Pierre Kirwin, who assessed Mr. Subramaniam at his lawyer’s request, on March 31, 2010. He provided reports dated July 11, 2010⁷ and August 15, 2010.⁸ In his first report he gave the opinion that the meniscus tear and tendinosis were caused by the accident. He also stated that the fractures “could have excerbated (sic) and accelerated the progression of the osteoarthritis…” In his second report, Dr. Kirwin confirmed his opinion on the cause of the torn meniscus. He now stated that it was “very unlikely that if the accident had not occurred, Mr. Subramaniam’s knee symptoms would be precisely the same as they are now.”⁹

Dr. Kirwin did not review the MRI himself. He did not explain how the radiologist who prepared the report, could have wrongly concluded that the tear was degenerative. He is not an orthopaedic surgeon and I have no information regarding his expertise in either interpreting an MRI, or assessing a report on an MRI. I do not accept his opinion.

Dr. Eric Zarnett is an orthopaedic surgeon of vast experience, whose clinical practice is almost exclusively restricted to knees. He examined Mr. Subramaniam on Wawanesa’s behalf on October 21, 2008 and June 21, 2010. He authored several reports and appeared at the hearing for cross-examination on his reports.

Dr. Zarnett did not have any x-ray or MRI reports when he examined Mr. Subramaniam in October 2008. He was satisfied that Mr. Subramaniam continued to suffer an impairment with regard to his left knee but reserved his opinion on causation. Dr. Zarnett had the MRI report for his second examination. Based on the evidence of the pre-existing arthritis and torn meniscus, he concluded that, since the fractures had healed, Mr. Subramaniam’s continuing impairment in the left knee was caused by the pre-existing conditions. In his report, he described the fractures to be “superimposed upon pre-existing degenerative changes.”¹⁰

Dr. Zarnett conceded under cross-examination that, although he viewed Mr. Subramaniam’s ongoing impairment to be caused by pre-existing conditions, the injury in the accident could have both precipitated the onset of symptoms, and contributed to their severity. His only reservation in expressing that opinion was based on apparently conflicting information in Dr. Veillette’s notes. Dr. Zarnett pointed out that Dr. Veillette noted on March 26, 2008 that Mr. Subramaniam had “no pain”. Then, on April 22, 2008, Dr. Veillette noted that Mr. Subramaniam had “no complaint”.¹¹ Dr. Zarnett reasoned that, if the accident triggered Mr. Subramaniam’s symptoms they would have appeared right away, not at some later date. Therefore Mr. Subramaniam’s reports of no symptoms soon after the accident suggest a different trigger of his symptoms.

I accept Dr. Zarnett’s logic. However, a closer look at Dr. Veillette’s records shows that the notes that caused Dr. Zarnett’s reservation relate to Mr. Subramaniam’s progress with regard to his fractures, and not to the general condition of his knee.

Mr. Subramaniam saw Dr. Veillette for follow-up about 4 weeks after the accident. At the time, his leg was still in a cast. On February 19, 2008, Dr. Veillette noted as follows: “Clinically there is no ankle swelling and there is no complaint.”¹² Mr. Subramaniam could not have been symptom free at that time. Dr. Veillette also saw Mr. Subramaniam on June 24, 2008. He noted at that time that Mr. Subramaniam “continues to have pain”.¹³ That note suggests that the pain is not a new report.

The conclusion that Mr. Subramaniam was never free of left-knee pain is supported by the records of Bloor-Dufferin Rehabilitation Centre where Mr. Subramaniam attended for physiotherapy following the accident. Its notes¹⁴contain consistent reports of left knee pain and reports of pain at around the same time that Dr. Veillette was apparently noting no symptoms. The day after Dr. Veillette noted “no pain”, Bloor-Dufferin noted ongoing knee pain.¹⁵ Two days after the note of “no complaint” on April 22, 2008, Bloor-Dufferin noted burning pain in the left knee at night.¹⁶

Mr. Subramaniam is not required to prove that his accident-related injuries are the sole cause of the symptoms in his left knee. He must only prove that they are a cause of his symptoms.¹⁷ I find that the injuries to his left knee that Mr. Subramaniam suffered in the accident precipitated the onset of symptoms in his left knee. As will be seen when I address Mr. Subramaniam’s right knee, his accident-related injuries continue to contribute to the severity of symptoms in his left knee. The impairments to Mr. Subramaniam’s left knee were therefore caused by the accident.

One further note with regard to the left knee. Dr. Kirwin opined that the tendinosis shown on the MRI was caused by the accident. He did not say how this might affect function. Dr. Zarnett testified that “tendinosis” describes normal degeneration of the tendon, which has no effect on its function, while “tendinitis” describes inflammation of the tendon. I accept Dr. Zarnett’s evidence. I find that the tendinosis in Mr. Subramaniam’s left knee was not caused by the accident and, in any event, it has no functional impact.

2) Right Knee

Mr. Subramaniam’s first documented complaint of right knee pain was on July 29, 2008.¹⁸ He acknowledges that his right knee pain started around that time. His position is that his right knee pain was caused by overuse from favouring his injured left knee.

Wawanesa’s position is that Mr. Subramaniam’s complaints of right knee pain started too long after the accident to have been caused by the accident. Dr. Zarnett addressed the issue under cross-examination. He stated that it is rare that favouring one leg would cause symptoms to appear in the other. His evidence was it was likely that both of Mr. Subramaniam’s knees had similar pathology before the accident. Thus, Mr. Subramaniam likely had asymptomatic arthritis in the right knee as well. He opined that the appearance of right knee symptoms after the accident was part of the natural course of the pre-existing disease. He also stated that the appearance of symptoms in the right knee gave a good indication of the course the left knee would have taken, regardless of the accident.

Dr. Zarnett’s opinion in this regard is confirmed by an x-ray of Mr. Subramaniam’s knees, taken on September 2, 2009.¹⁹ The radiologist found mild osteoarthritic changes in both knees. Dr. Zarnett testified that, although the x-ray does not show the more advanced arthritis that the MRI had revealed in the left knee, the important report was that both knees were similar. I agree. I note that the x-ray taken immediately after the accident also showed mild arthritis of the left knee. I attribute the difference between the MRI and x-ray results to the greater resolution of the MRI.

I reject Dr. Khalid Sayed’s opinion that Mr. Subramaniam’s right knee x-ray was normal, given after examining Mr. Subramaniam on October 2, 2009.²⁰ The radiological report Dr. Sayed relied on stated that there were degenerative changes bilaterally. In addition, Dr. Syed diagnosed a tear in the lateral meniscus of the left knee, when the only available imaging shows a tear in the medial meniscus.

I accept Dr. Zarnett’s opinion. I find that the pain in Mr. Subramaniam’s right knee was not caused by the accident. This finding reinforces the conclusion that the ongoing impairment to Mr. Subramaniam’s left knee was caused by the accident. Mr. Subramaniam reports greater pain and loss of function in the left knee than in the right. The records and opinions support those reports. Since the development of symptoms in the right knee gives an indication of the likely trajectory of the left knee, one would expect the knees to be the same. The existence of more severe symptoms in the left knee confirms that the accident continues to play a role in the impairment of Mr. Subramaniam’s left knee.

3) Other Impairments

Mr. Subramaniam suffered soft tissue injuries in the accident. He testified that the related pain has never fully resolved. He developed emotional and psychological problems after the accident. He testified that he still has difficulty sleeping, and still feels sad and stressed, more often than not.

In February 2008, when Mr. Subramaniam sought physiotherapy at the Bloor-Dufferin Rehabilitation Centre, his complaints were pain in the neck, pain in both shoulders, pain between his shoulder blades, pain in the chest and ribs and lower back pain.²¹ He still complains of pain in the neck, related headaches, pain in both shoulders, upper and lower back pain, and chest pain. He agrees that the intensity of his pain has somewhat abated.

The medical records and reports show that Mr. Subramaniam has consistently complained of pain as stated above and no one has doubted the sincerity of his complaints. He testified that he stopped getting physiotherapy at Bloor-Dufferin because he was not satisfied with his progress. He switched to Promed Rehabilitation Centre in August 2008. Promed’s records show that his complaints, when he was first assessed there were similar to those he made when first assessed at Bloor-Dufferin.²² Almost two years later, he continued to make similar complaints when a multidisciplinary assessment was conducted on Wawanesa’s behalf, in June 2010.²³

There was nothing in the oral evidence that leads me to doubt Mr. Subramaniam’s sincerity. I find his pain from the soft tissue injuries he suffered in the accident has never resolved and that he continues to suffer pain in the neck, related headaches, pain in both shoulders, upper and lower back pain, and chest pain.

Not long after the accident, Mr. Subramaniam began to experience emotional and psychological difficulties. In July he was referred for a psychological assessment at Active Therapy Works. He reported difficulty sleeping, feelings of helplessness, fear of reinjury, increased sadness and depression.²⁴ He says that he continues to feel sad and stressed. In their evidence, his wife and son generally confirmed his history of emotional and psychological difficulties.

I am satisfied that the accident had an adverse impact on Mr. Subramaniam’s psyche. However, Mr. Subramaniam does not allege that his psychological problems adversely affect his ability to engage in any of the activities in dispute in this arbitration.

I now turn to the question of how Mr. Subramaniam’s accident-related impairments affect his ability to engage in the activities that are the subject of his claims for accident benefits.

Entitlement to ongoing IRBs

Wawanesa paid Mr. Subramaniam IRBs for about 2 years and 7 months after the accident. It terminated payment on August 14, 2010. Mr. Subramaniam has not returned to work since the accident. He claims entitlement to ongoing IRBs. For the reasons that follow, I find that as a consequence of his accident-related impairments, Mr. Subramaniam is completely unable to engage in any employment for which he is reasonably suited by education, training or experience. He is therefore entitled to ongoing IRBs.

The threshold for entitlement to IRBs changes after 104 weeks of disability from employment. Until then, the test generally referred to as the “own occupation” test applies. The insured person must show that he or she “suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit…”²⁵

Mr. Subramaniam worked at Fenwick Automotive Products from April 2003 to November 2008. His job was assembling brake calipers. That was the employment in respect of which he qualified for IRBs. While paying IRBs, Wawanesa was satisfied that Mr. Subramaniam suffered a substantial inability to perform the essential tasks of his job assembling brake calipers.

After 104 weeks of disability, the test for entitlement to further IRBs changes to the “any occupation” test. This is a broader test. To qualify, the insured person must “as a result of the accident”, suffer “a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.”²⁶

Wawanesa conducted a multi-disciplinary assessment in June 2010, in order to determine whether Mr. Subramaniam met the “any occupation” test. The assessors concluded that Mr. Subramaniam did not meet the test.²⁷ I disagree with their conclusion. Their opinion was based on the wrong conclusion about Mr. Subramaniam’s accident-related impairments. I find that Mr. Subramaniam’s accident-related impairments render him unemployable in a competitive marketplace.

I reject Mr. Subramaniam’s further submission that he could not reasonably be expected to take the jobs Wawanesa identified as suitable because of the differential between the starting pay and what he made in the years before the accident and because of his lack of English skills.

(1) Wrong conclusion on impairments

The assessment team that Wawanesa relied on for its decision on post-104 IRBs included Dr. Zarnett who had earlier concluded that Mr. Subramaniam met the “own occupation” test. Under cross-examination, Dr. Zarnett agreed that, when he saw Mr. Subramaniam in June 2010, he continued to suffer similar impairments to the ones that informed his earlier opinion. The difference was that Dr. Zarnett had changed his mind about the cause of impairments to the left knee. As I noted earlier, Dr. Zarnett reached the wrong conclusion in this regard.

In addition, Dr. Zarnett reported no “accident-related impairment or disability”²⁸ that explained Mr. Subramaniam’s complaints of ongoing neck and shoulder pain. However, under cross-examination he agreed that his finding did not rule out the existence of pain. He did find “tenderness in the trapezial areas”.²⁹ As I noted earlier, the pain from the soft tissue injuries Mr. Subramaniam suffered in the accident has never resolved. He continues to suffer pain in the neck, related headaches, pain in both shoulders, upper and lower back pain, and chest pain. Because Dr. Zarnett did not take in to account Mr. Subramaniam’s left knee impairment and his pain restrictions, I reject his opinion that Mr. Subramaniam could engage in employment.

Dr. Amena Syed, a psychologist, and Mr. John Leopore, a vocational rehabilitation consultant, conducted a Psycho-Vocational Assessment as part of the multidisciplinary assessment team. They too concluded that Mr. Subramaniam did not meet the “any occupation” test. In doing so they discounted Mr. Subramaniam’s accident-related impairments and considered only his pre-existing diabetes and hypertension. They deferred the question of the impact of accident-related impairments to “the analysis of medical examiners”.³⁰

Dr. Syed and Mr. Leopore concluded that Mr. Subramaniam could engage in certain occupations that require “sedentary to light strength”.³¹ They also concluded that there were “non-accident-related disabilities that most likely will prevent the claimant to return to work.”³² They considered it likely that these disabilities would impair “work stamina, pace, and activity persistence.”

I find that Dr. Syed and Mr. Leopore reached the right conclusion on the likelihood of Mr. Subramaniam’s return to work, but I reject their conclusion on the cause. I find that Mr. Subramaniam’s accident-related injuries impair his “work stamina, pace, and activity persistence” and render it unlikely that he could engage in any competitive employment.

On this issue, I prefer the opinions of Mr. Atila Balaban. He is an exercise physiologist who assessed Mr. Subramaniam in February 2010, at his lawyer’s request. He conducted extensive physical testing and concluded that Mr. Subramaniam’s current functional capacities were not consistent with meeting the essential physical demands of sedentary work. As a result, he was unable to engage in any occupation.³³ Mr. Balaban’s report details numerous findings, consistent with my determination of Mr. Subramaniam’s accident-related impairments. They include:

Decreased lower back strength and imbalanced muscle activity between the left and right sides of the lower back;
Decreased leg strength;
Decreased strength in the neck and shoulders; and
Decreased grip strength;

My findings on Mr. Subramaniam’s substantial loss of function means that he is not suited for any job, in a competitive marketplace.

I give no weight to the findings by Ms. Pearl Mark, who performed a Functional Abilities Evaluation as part of Wawanesa’s multidisciplinary team. She declined to express an opinion on Mr. Subramaniam’s ability to work because she concluded that he gave submaximal effort on physical tests. All other assessors were satisfied with Mr. Subramaniam’s effort, including Dr. Syed and Mr. Leopore who assessed Mr. Subramaniam 5 days after Ms. Mark. I find Ms. Mark’s conclusion to be an anomaly. Even if correct, it does not impugn Mr. Subramaniam’s credibility.

(2) Suitable jobs identified

As I earlier stated, I reject Mr. Subramaniam’s submission that he could not reasonably be expected to take the jobs Wawanesa identified as suitable. Having concluded that Mr. Subramaniam meets the disability test, this issue remains relevant only to his claim for a special award. I will address it in detail when I get to that issue.

Entitlement to attendant care benefits

Section 16 of the Schedule requires an insurer to pay an attendant care benefit to an insured person who sustains an impairment as a result of an accident. The benefit includes payment for reasonable and necessary expenses incurred for services provided by an aide or attendant. The Schedule provides for maximum monthly payments, linked to coverage and the degree of impairment. In Mr. Subramaniam’s case, the monthly maximum is $3,000, limited to 104 weeks after the accident.

Mr. Subramaniam initially claimed attendant care benefits at the rate of $709.03 per month. Wawanesa received this claim by way of an Assessment of Attendant Care Needs (Form 1), dated May 6, 2008.³⁴ The Form 1 was prepared on Mr. Subramaniam’s behalf by Dr. Craig Rosenblatt, a chiropractor. Wawanesa approved payment of the benefit and requested that Mr. Subramaniam submit an Application for Expenses (OCF-6) as proof that the expenses were incurred. Mr. Subramaniam did not submit a completed OCF-6.

Wawanesa terminated this benefit on November 8, 2008. The termination was based upon the opinion of Kathryn Blaney, an occupational therapist who assessed Mr. Subramaniam on Wawanesa’s behalf on October 15, 2008. She concluded that Mr. Subramaniam was independent with regard to self-care.³⁵

On June 30, 2009, Wawanesa paid attendant care benefits at the rate Mr. Subramaniam claimed, plus interest, from the date of the accident, until November 8, 2008. It had still not received the completed OCF-6s it had requested. (Wawanesa overlooked a mathematical mistake in Dr. Rosenblatt’s Form 1. The actual monthly amount should have been $563.23, not $709.03)

Mr. Subramaniam now claims $3,000 per month, from January 22, 2008 to September 22, 2008 and $1,364.56 per month from September 23, 2008 to January 21, 2010, less the amounts paid. This revised claim is based on a Form 1 dated October 20, 2009, by Ms. Sophie Bielawski, an occupational therapist retained by Mr. Subramaniam’s lawyer to assess him.³⁶

Section 39(3) of the Schedule provides that an insurer may, but is not required to, pay an expense for attendant care, incurred before a properly completed Form 1 is submitted to the insurer. That section means that Wawanesa cannot be required to pay attendant care expenses in excess of $709.03 per month, for any period before Mr. Subramaniam submitted Ms. Bielawski’s Form 1. Technically, that section disposes of almost the entire claim for $3,000 per month.

Aside from the technical defect, I find that the evidence supports Ms. Blaney’s conclusion that Mr. Subramaniam was independent with regard to self-care when she did her assessment in October 2008. I find that Ms. Bielawski’s speculation about the assistance Mr. Subramaniam would have needed from the time of the accident until November 2008 to be less reliable than the more contemporaneous assessment by Dr. Rosenblatt. Mr. Subramaniam is therefore not entitled to payment of further attendant care benefits.

I am satisfied that Mr. Subramaniam told Ms. Blaney that he was independent with regard to most self-care tasks, when she interviewed him in October 2008. In his evidence, he confirmed that he did. He testified that he still needed assistance with socks and taking a shower. Thus, Ms. Blaney’s report of independence is largely confirmed by Mr. Subramaniam’s evidence. Also, it is consistent with the notes of other assessors.

Dr. Ariel Zielinsky, who conducted a Physiatry assessment on Wawanesa’s behalf on October 17, 2008, noted that “Mr. Subramaniam reported that he is fully independent in completing his personal care, but otherwise he cannot do too much… .”³⁷ Dr. Salituro, who assessed Mr. Subramaniam on Wawanesa’s behalf on June 11, 2009, reported that “Mr. Subramaniam denies having any restrictions with respect to his self-care activities… .”³⁸ Amanda Benyon and James MacDonald, who conducted a Functional Capacity Evaluation on Wawanesa’s behalf on January 29, 2009, reported that “Mr. Subramaniam confirmed that he is independently completing his own personal care… .”³⁹

As with Ms. Blaney’s report, Mr. Subramaniam’s evidence was that he did give this information to Ms. Benyon and Mr. MacDonald. He said that he nevertheless needed help with socks. All of the above assessors accurately report Mr. Subramaniam’s assertion that he had not returned to his pre-accident housekeeping and homemaking activities. The accurately reported information with regard to housekeeping supports the accuracy of the reports on the issue of personal care.

Although I do not doubt that Mr. Subramaniam still received assistance with socks and showering in October 2008, I accept Ms. Blaney’s evidence that he demonstrated the ability to complete these tasks on his own. Her report⁴⁰ contains numerous, accurate details regarding Mr. Subramaniam’s health and activities, showing a thorough approach. She considered function, rather than diagnosis and accurately reported Mr. Subramaniam’s functional limitations with regard to sitting, standing, crouching and kneeling.⁴¹ I accept her evidence that Mr. Subramaniam demonstrated reach to his feet, contradicting a requirement for assistance with socks. I find that Mr. Subramaniam demonstrated sufficient standing tolerance in October 2008, to allow him to shower on his own.

Ms. Blaney’s conclusions as to Mr. Subramaniam’s needs in October 2008 are consistent with the progression one would expect, based on the assessment by Dr. Rosenblatt in May 2008.

On the other hand, Ms. Bielawski’s conclusions, based on a retrospective calculation of Mr. Subramaniam’s needs, are inconsistent with what Mr. Subramaniam says he needed and with both contemporary assessments.

For instance, Ms. Bielawski concluded that Mr. Subramaniam needed 24 hours per day supervisory care, when both Dr. Rosenblatt and Ms. Blaney concluded that he needed none. I am not satisfied that Dr. Rosenblatt or Ms. Blaney failed to properly consider this issue or were less qualified to do so than Ms. Bielawski. I find that they were in a better position to do so, since they had contemporaneous information from Mr. Subramaniam about his ability and contemporaneous testing.

Ms. Bielawski also bases many of her findings upon Mr. Subramaniam’s reports of dizziness, shortness of breath and heart palpitations upon exertion. Mr. Subramaniam did not report these symptoms during earlier assessments. I am not satisfied that they are related to the accident.

As noted above, I reject Ms. Bielawski’s findings and conclude that Mr. Subramaniam is not entitled to further payment for attendant care.

Entitlement to Housekeeping and Home Maintenance benefits

If accident-related impairments cause an insured person to be substantially unable to perform the housekeeping and home maintenance services performed before the accident, section 22 of the Schedule requires the insurer to pay the reasonable and necessary additional expenses incurred. The maximum amount payable is $100 per week. Payments are limited to 104 weeks after the onset of disability, unless the insured person suffered a catastrophic accident. Mr. Subramaniam claims $85 per week (less $3,588.92 paid), for 104 weeks after the accident.

Before the accident, Mr. Subramaniam shared the housekeeping and home maintenance duties with his wife. By all accounts, he has not resumed any of those duties. His wife has assumed his responsibilities, with occasional help from his children.

In December 2008, Mr. Subramaniam submitted a statement to Wawanesa showing that his wife was spending between 7 to 10 hours per week on his pre-accident housekeeping duties. He claimed payment of an average of 8.5 hours per week, at $10 per hour. Wawanesa paid for 8.5 hours per week until November 8, 2008, but at the minimum wage rate of $9.50 per hour. After that date, payments were reduced to 40 minutes per week, at the same hourly rate. Those payments were terminated on June 30, 2009.

Wawanesa’s decision on housekeeping was based on the same assessment by Kathryn Blaney in October 2008 where she concluded that Mr. Subramaniam was independent with regard to self-care. Her conclusion with regard to housekeeping was that Mr. Subramaniam continued to require assistance for 40 minutes per week. That conclusion was based on recognizing that “Mr. Subramaniam demonstrated reduced capacity to complete several activities due to limited tolerance for weight bearing on the left leg, the use of a cane or crutch for all mobility, and the inability to kneel and squat.”⁴² Ms. Blaney recommended assistance with sweeping, mopping and bathtub cleaning, for 4 weeks, so that assistive devices and instruction on their use could be provided. In fact, Wawanesa paid at the reduced rate for a further 7 months.

Under cross-examination Ms. Blaney acknowledged that, when she assessed him, Mr. Subramaniam’s injuries still prevented him from completing his pre-accident housekeeping activities with pre-accident efficiency, even with the assistive devices she recommended. She testified that he could nevertheless complete the activities with reasonable efficiency, with pacing. She noted that many of her clients are able to complete their housekeeping tasks, even though confined to a wheelchair.

Ms. Blaney agreed that Mr. Subramaniam could not carry heavy objects on stairs. Therefore, he would not be able to take out the garbage or do the laundry on his own, at the house where he lived at the time of the assessment. His left knee impairments would prevent him from taking the laundry up and down the stairs to the basement, where the laundry room was located. They would also prevent him from taking the garbage down the exterior stairs to the curb. Ms. Blaney did not include assistance with these tasks in her assessment because she believed that Mr. Subramaniam could complete these tasks at the apartment where he lived at the time of the accident.

I accept Mr. Blaney’s opinion with regard to pacing, but I disagree with her approach to assessing Mr. Subramaniam’s ability to do laundry and take out the garbage. I also note that Ms. Blaney did not offer an opinion on Mr. Subramaniam’s ability to do the grocery shopping that he did before the accident.

I find pacing to be a reasonable consideration in determining whether an insured person suffers a substantial inability to perform housekeeping services. Pacing is usually an option because these services are not performed in a competitive environment. It is a viable option in Mr. Subramaniam’s case because his evidence was that he spent 30 to 45 minutes per day on housekeeping, before the accident. He apparently excluded cooking from that time estimate. His evidence was that he spent 1.5 to 2 hours per day cooking. I assume that he included preparation and cooking time. With a maximum pre-accident commitment of 2.75 hours per day, no deadlines, and no other significant demands on his time, pacing is a readily available option.

I find that Mr. Subramaniam did not suffer a substantial inability to perform most of his pre-accident housekeeping services, when Wawanesa reduced payments in November 2008. The exceptions are taking out the garbage, doing laundry, and shopping for groceries.

As I noted earlier, I disagree with Ms. Blaney’s approach to assessing Mr. Subramaniam’s post-accident ability to do the laundry and take out the garbage. Mr. Subramaniam and his family were living temporarily in an apartment at the time of the accident. The house they owned and had previously occupied was under renovation. As planned, they moved back into the house in April 2008. The insurer is required to compensate for loss of services “normally performed before the accident”. Ms. Blaney’s approach restricts entitlement to services performed at the time of the accident. That is an overly narrow interpretation.

I find that Mr. Subramaniam normally took out the garbage and did the laundry, both at the house and at the apartment. He could not do so after the accident. Because of his weight bearing and walking restrictions, he also could no longer do the grocery shopping.

I assign a further 40 minutes per week for assistance with these activities. That calculation takes into account the fact that Mr. Subramaniam could do everything with regard to laundry, except taking it up and down the stairs. As a result, Mr. Subramaniam is entitled to payment for an additional 40 minutes per week for the 4 weeks after Wawanesa initially reduced payments. He is also entitled to payment for 40 minutes per week, from July 1, 2009 (termination date), to January 21, 2010 (104 weeks).

In 2009, Ms. Bielawski assessed Mr. Subramaniam’s housekeeping needs, at the same time that she assessed his attendant care needs. She concluded that he required assistance for 19 hours per week with his pre-accident housekeeping tasks. That approached Mr. Subramaniam’s estimate of the maximum time he spent on housekeeping. It is more than twice the time that his wife took to perform those services after the accident, at his time of greatest need. Ms. Bielawski’s opinion was not grounded in Mr. Subramaniam’s real circumstances. I do not accept Ms. Bielawski’s opinion for this reason and the other reasons I gave in rejecting her opinion on Mr. Subramaniam’s need for attendant care.

There remains the question of the rate of payment. Mr. Subramaniam claims $10 per hour. Wawanesa says that its policy is to pay family members providing these services at the minimum wage. The Schedule requires compensation for “reasonable …expenses incurred”. Wawanesa provided no evidence to support the reasonableness of its position. The statements that Mr. Subramaniam gave to Wawanesa indicated that his wife considered $10 per hour to be a reasonable charge for her services. I find that rate to be reasonable. That finding is informed by the fact that the concurrent rate fixed by the Superintendent for Level 1 attendant care services was $11.23 per hour. Level 1 care includes services such as meal preparation and laundry that overlap with housekeeping.

Entitlement to further chiropractic treatment by Promed

Section 14 of the Schedule requires an insurer to pay reasonable and necessary medical expenses incurred by an insured as a result of accident-related impairments. Section 15 of the Schedule requires an insurer to pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of an accident-related disability.

Mr. Subramaniam submitted a treatment plan dated April 15, 2009. The plan proposed 16 further sessions of chiropractic treatment by Dr. Farzana Bandali of Promed Rehabilitation Centre. It also proposed the purchase of a TENS machine. The cost was $2,378. The plan was submitted about 15 months after the accident. Mr. Subramaniam had already received extensive similar treatment at Bloor-Dufferin Rehabilitation Centre and at Promed. His evidence was that he stopped going to Bloor-Dufferin because he was not satisfied with his progress.

Wawanesa denied payment after obtaining an opinion from Dr. P. Salituro, a chiropractor. His opinion was that Mr. Subramaniam “would have achieved maximum therapeutic benefit from formal passive and active treatment intervention well before submission of the April 15, 2009 Treatment Plan.”⁴³ Dr. Salituro also opined that use of a TENS machine would reinforce Mr. Subramaniam’s dependence on passive treatment.

I accept Dr. Salituro’s opinion. There is nothing in the evidence that suggests that Mr. Subramaniam was reporting any significant benefit from the similar treatment he had been receiving at Promed, since August 2008. Mr. Subramaniam’s evidence was that he derived about the same benefit from treatment as he did from the exercises he did at home.

I do not accept the submission that the proposed treatment was meant to address complications from injuries Mr. Subramaniam suffered in a fall at home. The fall occurred on April 29, 2009, after the plan was submitted. Dr. Bandali made no mention of treating new injuries in his rebuttal assessment, dated July 24, 2009.⁴⁴ I find that Mr. Subramaniam is not entitled to payment for the proposed treatment because it was not reasonable and necessary.

Entitlement to psychological treatment by Dr. Shaul

Mr. Subramaniam claims payment for psychotherapy treatment and related services, as set out in a treatment plan by psychologist, Dr. Andrew Shaul, dated July 22, 2010.

Wawanesa refused to fund the treatment after obtaining the opinion from Dr. Brian Hines, a psychiatrist. Although I find Dr. Hines’ approach to be unduly narrow, I find that Mr. Subramaniam is not entitled to payment because the proposed treatment is not reasonable and necessary.

In July 2008, Mr. Subramaniam was referred for a psychological assessment at Active Therapy Works, to address emotional and psychological difficulties he was experiencing. Linda Thomas assessed him, under the supervision of Dr. Andrew Shaul. Mr. Subramaniam reported difficulty sleeping, feeling of helplessness, fear of re-injury, increased sadness and depression.⁴⁵ A diagnosis of adjustment disorder, with depressed mood, was made.

Dr. Shaul prepared a treatment plan, dated July 4, 2008. It proposed 10 counselling sessions in Tamil. Mr. Subramaniam did not receive the treatment. His evidence was that he could not recall why. The evidence of Wayne Clay, Wawanesa’s adjuster, was that the treatment was approved but access to a Tamil speaking treatment provider was not available. I accept that evidence.

On July 8, 2009 Mr. Subramaniam attended at the Urgent Care Clinic of the Toronto Western Hospital on referral from the Psychiatry Emergency Unit, where he was seen on June 25, 2009. He was assessed by Dr. Jodi Lofchy, a psychiatrist. Dr. Lofchy diagnosed delusional disorder and prescribed medication.⁴⁶ Dr. Lofchy discharged Mr. Subramaniam two weeks later, to the care of his family doctor, upon his report of overall improvement.⁴⁷

In October 2009, Mr. Subramaniam consulted Dr. Deo Bodasing, a psychiatrist, upon referral from his family doctor. He reported concern for the safety of his family and other health issues. Dr. Bodasing concluded that Mr. Subramaniam was not suitable for psychotherapy and noted that Mr. Subramaniam agreed with this conclusion.⁴⁸

Mr. Subramaniam was again assessed at Active Therapy Works in June 2010.⁴⁹ He reported feeling high levels of distress, fear of driving and anxiety about the safety of his family, evidenced by withdrawal from social contact and frequent loss of his temper. The diagnosis of adjustment disorder was again made and the treatment in dispute in this arbitration was recommended. The principal recommendation was 12 psychotherapy sessions, with the assistance of a Tamil speaking health care professional.

Wawanesa referred the treatment plan for the opinion of Dr. Brian Hines. Dr. Hines concluded that the proposed treatment was not reasonable and necessary. He noted “I do not feel that any of Mr. Subramaniam’s subjectively reported emotional symptoms are of the degree or to the extent to currently justify any particular psychiatric illness or diagnosis.” Dr. Hines appeared to base his conclusion entirely on this lack of diagnosis.

Sections 14 and 15 do not restrict an insurer’s obligation to paying for treatment of diagnosed psychiatric illness. The focus is improving functional restrictions caused by the accident. Because his focus was diagnosis, Dr. Hines did not analyse the cause of Mr. Subramaniam’s reported symptoms or their effect on his ability to function. Thus, his opinion does not help the analysis, even if he is right on the issue of diagnosis.

In his evidence, Mr. Subramaniam confirmed his post-accident social withdrawal, feelings of helpless and loss of patience. His son and wife gave evidence that was consistent with his reports. Mr. Subramaniam was somewhat equivocal about the details. He testified that he stopped thinking about the things he discussed with Dr. Lofchy a long time ago, and also that there was no change in his mental state between the time of the two assessments by Dr. Shaul. He could not remember his complaints when he saw Dr. Shaul in 2010, until counsel prompted him.

The second assessment by Dr. Shaul made no reference to the first treatment plan. Therefore it did not address the practical issue of access to a Tamil speaking health care professional. It is therefore a proposal, with no concrete prospect of implementation in the real world. Mr. Subramaniam’s treatment by Dr. Lofchy is noted but there is no indication of why the medication she prescribed, with apparently good results, was not an adequate response to Mr. Subramaniam’s ongoing complaints. In addition, Mr. Subramaniam apparently did not mention his earlier consultation with Dr. Bodasing. Dr. Shaul therefore made no comment on Dr. Bodasing’s conclusion that Mr. Subramaniam was not a suitable candidate for psychotherapy and on Mr. Subramaniam’s statement that he agreed with this conclusion.

The lack of a means of implementing the proposed care, the failure to consider a previously successful alternative and the failure to consider whether Mr. Subramaniam would undergo the recommended treatment, lead me to the conclusion that the disputed treatment is not reasonable and necessary.

Dr. Amena Syed’s off-the-cuff comment in her report of July 2010 does not affect this conclusion. As noted above, Dr. Syed was part of the multidisciplinary team that assessed Mr. Subramaniam’s ability to return to work in June and July 2010. She noted as follows: “It would appear that Mr. Subramaniam has not completed the approved psychological treatment. It is recommended that this treatment be implemented.”⁵⁰ Dr. Syed did not consider Mr. Subramaniam’s history of treatment, his willingness to be involved or the availability of the recommended treatment. At best, Dr. Syed comments on the necessity of the proposed treatment, but not on its reasonableness.

Entitlement to a special award

Section 282(10) of the Insurance Act⁵¹ requires an arbitrator to make a special award, upon finding that an insurer unreasonably withheld or delayed payment of benefits found to be owing. The award is a lump sum, with a fixed maximum limit, in addition to the benefits and interest owed to the insured.

Mr. Subramaniam made written submissions claiming a special award with regard to all benefits. Since the award can only be made with regard to benefits owed, I will address only his claims with regard to IRBs and housekeeping.

No special award re IRBs

I reject Mr. Subramaniam’s submission that, in terminating his IRBs, Wawanesa unreasonably relied on assessors who ignored his complaints of pain. That is simply not accurate. None of the assessors believed that Mr. Subramaniam was not in pain. The principal disagreement was whether the pain in Mr. Subramaniam’s left knee, his most disabling impairment, was caused by the accident.

Wawanesa relied on Dr. Zarnett’s opinion with regard to the cause of left-knee impairments. Although I did not accept Dr. Zarnett’s opinion, I find that it was not unreasonable for Wawanesa to rely on it. Dr. Zarnett based his opinion upon clear evidence of Mr. Subramaniam’s pre-existing arthritis. The competing opinion was that of Dr. Kirwin, who wrongly concluded that the meniscal tear and tendonosis were caused by the accident, and who connected the ongoing pain to the accident by way of a bald statement, without analysis. The true pathology of the left-knee only became clear after extensive analysis, conducted during and after the hearing.

I also reject Mr. Subramaniam’s submission that Wawanesa unreasonably relied on a flawed vocational report when it terminated his IRBs. As earlier noted, I find that Wawanesa did not fail to identify suitable jobs as alleged.

Mr. Subramaniam is required to prove that his accident-related impairments prevent him from engaging in suitable employment. However, if Wawanesa claims that there is specific suitable employment, it must prove that point.⁵²

Remuneration is an important factor in deciding whether employment is suitable. However, it is not the only factor. The particular circumstances of the insured person must be considered. Mr. Subramaniam was 57 years old in June 2010. He is functionally illiterate in English. Although functional in spoken English, he is not fluent. He has no specialized training in any field. He had been laid off a few months before the accident and was looking for work. He had started at the entry level at every job he had in Canada and he had advanced through on-the-job training and good performance. He would likely have had to take that course again, had he been able to find a job before the accident. Thus, although he earned $34,310 in 2006 and had earned $27,808 in the 10 months before he was laid off in 2007⁵³, he would not likely have found another job paying as much, at the time of the accident.

In their report, Dr. Syed and Mr. Leopore proposed several jobs paying between $20,118 and $22,893 per annum, at the entry level, and increasing close to Mr. Subramaniam’s pre-accident income, with 3 to 10 years’ experience. I find that these jobs are not disqualified as suitable employment, in Mr. Subramaniam’s particular circumstances.

Even if I had found that Wawanesa underestimated Mr. Subramaniam’s earning capacity because it used his earnings in the 9 months of the year before the accident as his annual income, I would not have found that error to be unreasonable. Mr. Subramaniam contributed to the error. Mr. Subramaniam had his income tax returns at the time of the assessment. He did not provide them to Wawanesa or its assessors. He did provide them to his own assessors for his rebuttal assessment.

I also reject the submission that the jobs identified are not suitable because of Mr. Subramaniam’s functional illiteracy in English. Mr. Subramaniam has demonstrated the ability to function in an English-speaking workplace. The record is replete with notes from assessors and healthcare providers who were able to communicate with Mr. Subramaniam in English. Mr. Subramaniam demonstrated this ability during the hearing. He sometimes answered questions in English. He often answered questions before interpretation. He sometimes corrected the interpreter. At one point he advised that he was forced to use English because there was no Tamil word such as “continuously”.

No special award re housekeeping

Wawanesa paid housekeeping benefits for 8.5 hours per week, from the date of the accident until November 9, 2008, and for 40 minutes per week, from November 10, 2008 to June 30, 2009. It made the payment in one lump sum, on June 30, 2009.

Mr. Subramaniam submits that the delay in payment was unreasonable because he had submitted housekeeping expenses in January 2009. He also submits that Wawanesa’s decision to base his entitlement only on the services he performed at the apartment was unreasonable. For the following reasons, I do not accept those submissions.

In January 2009, Mr. Subramaniam submitted a statement from his wife. The statement covered the period from the date of the accident to the date of December 2008. The statement described the services in general and stated: “I would reasonably estimate that I spend between 7 to 10 hours per week on these duties…”⁵⁴ Wawanesa responded by requesting details of the time spent.⁵⁵ Mr. Subramaniam did not provide the details. Wawanesa eventually paid without receiving them.

Mr. Subramaniam argued that it was unreasonable for Wawanesa to insist on the details because the decision in Belair Insurance Company and McMichael⁵⁶ means that an insurer is not entitled to proof that housekeeping expenses are incurred, before paying. However, the facts were very different in McMichael. There, the insurer had failed to properly assess the needs of the insured. As a result of the insurer’s failure to pay for the services to which the insured was entitled, he had not been able to obtain them. The court held that “incurred” was capable of a broad enough interpretation to require “the insurer to do now what it would have done if the assessment had been correct.”⁵⁷

In this case, Mr. Subramaniam claimed to be receiving specific services and submitted a single statement, with little detail, covering a period of almost a year. In those circumstances Wawanesa was entitled to require Mr. Subramaniam to provide the details requested, pursuant to his obligation under section 33(1) of the Schedule. That section requires an insured person to provide information reasonably required to assist in determining entitlement to the benefit. McMichael does not erode that obligation. Wawanesa is to be credited for paying, despite Mr. Subramaniam’s breach of that obligation.

Turning to Mr. Subramaniam’s second submission, I find that, although Wawanesa’s approach to fixing the location of Mr. Subramaniam’s pre-accident activities was wrong, it was not unreasonable. Mr. Subramaniam’s circumstances were novel and unusual. I could find no precedent addressing his circumstances. In the normal course, activities “normally performed before the accident” will be the same as activities performed at the time of the accident. In fact, “normally performed before the accident’ is capable of that narrow interpretation. The fact that other sections of the Schedule base entitlement on activities at the time of the accident increased the likelihood of Wawanesa’s mistake. I find that it was not an unreasonable mistake in the circumstances.

Entitlement to Interest

When Mr. Subramaniam was injured in 2008, his right to accident benefits was governed by the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996⁵⁸ (the Old SABS). Effective September 1, 2010, that schedule was replaced by the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the New SABS).

Section 46(2) of the Old SABS required an insurer to pay interest “[I]f payment of a benefit under this Regulation is overdue…on the overdue amount…from the date the amount became overdue at the rate of 2 percent per month…” Section 51(2) of the New SABS mirrors the old section, except that the rate of interest is changed to 1 percent per month.

Both SABS provide that payment of a benefit is overdue “if the insurer fails to pay the benefit within the time required… ”.⁵⁹ Both SABS contain similar provisions that set time requirements for an insurer’s obligation to pay a benefit. Neither SABS states that the obligation to pay any benefit is triggered by the occurrence of the accident.

Mr. Subramaniam submits that he is entitled to interest at the rate of the Old SABS on all benefits owing, regardless of whether the payment became overdue before or after September 1, 2010.

In Federico and State Farm Automobile Insurance Company⁶⁰, the Arbitrator took the approach Mr. Subramaniam suggests. The Arbitrator declined to follow the contrary interpretation suggested in of the Superintendent’s Bulletin No A-04/10: Transition to the New Statutory Accidents Benefits Schedule — Effective September 1, 2010.

Referring to the relevant transitional provisions, the Bulletin states:

Interest on amounts that become overdue on or after September 1, 2010, in respect to old accidents will accrue at the New SABS rate of one percent per month and be compounded monthly (Old SABS s.3(1.2), New SABS s.2(2) ⁶¹

and

Interest on amounts that become overdue before September 1, 2010, in respect to old accidents, will accrue at the Old SABS rate of two per cent per month and be compounded monthly both before and after September 1, 2010 (Old SABS s.3(1.4); New SABS s.2(2) 2)⁶²

In Federico, the Arbitrator stated that above excerpts on interest are confusing. I disagree. I see no confusion in the Bulletin. It clearly suggests that the transitional provisions are to be interpreted so that the new rate of interest will apply where the payment benefit becomes overdue on or after September 1, 2010, but the old rate applies, where the payment becomes overdue before that date.

The Arbitrator reasoned that the transitional provisions do not show an intention to interfere with rights to interest which vested under the Old SABS. That may be so, but the point is not helpful in the analysis because the right to interest does not vest at the time of the accident. The right vests when the payment of the benefit becomes overdue.

The Arbitrator also reasoned that the transitional provisions support the interpretation that, although interest is paid under the New SABS, it is paid an amount calculated under the Old SABS. I agree.

Earlier revisions of the Schedule changed the rights of insured persons by reference to the date of the accident. The 2010 revision took a different approach. With limited exceptions, the New SABS applies to accidents that occurred before and after it was implemented. The Legislature addressed the transition by an amendment to the Old SABS, and a companion transitional provision in New SABS. The amendment and the transitional provision mirror each other. I will focus my analysis on the New SABS. The relevant section states as follows:

Application and transition rules

2(2) Subsections 25 (1), (3), (4) and (5), Parts VIII and IX, other than subsections 50 (2) to (5), and Parts X, XI and XII apply with such modifications as are necessary in respect of benefits provided under the Old Regulation (Old SABS) with respect to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and, for that purpose, the following rules apply:…

An amount that would, but for subsection 3 (1.3) of the Old Regulation, be paid under the Old Regulation after August 31, 2010 shall be paid under this Regulation in the amount determined,

i. under the Old Regulation, other than under section 24 of that Regulation, or

ii. under subsections 25 (1), (3), (4) and (5).

The interest provisions are contained in Part X of both SABS. The amendments to the Old SABS stated that Part X does not apply after August 31, 2010 and contain the same provision as the transitional provision above. Section 3(1.3) of the Old SABS states “No amount referred to in this Regulation shall be paid after August 31, 2010.” Section 2(2) above modifies this restriction and allows for payment of certain amounts as though the restriction did not exist.

Two things stand out in section 2(2) of the New SABS. First, Part X applies, with necessary modifications, to old benefits. That language contemplates that Part X of the New SABS is not to be strictly applied to old benefits.

Second, the rule in section 2(2)2 requires payment with regard to old benefits in the amount determined under the Old SABS, with specific exceptions. The exceptions do not include the interest provisions in section 46(2) of the Old SABS. Because the Legislature listed specific exceptions, but did not include section 46(2), I conclude that it did not intend to erode the right to payment of interest at the old rate.

I find that the language of the transitional provisions does not support the interpretation in the Bulletin. I find that Mr. Subramaniam is entitled to interest under section 46(2) of the Old SABS, regardless of whether the payment of the benefit became overdue before or after September 1, 2010.

Procedural Rulings[^63]

Documents not in briefs

Mr. Subramaniam objected to the admission of the report of Amanda Benyon and James MacDonald, dated February 12, 2009.⁶⁴ Wawanesa proposed to put the report to Mr. Subramaniam during cross-examination. The report was served more than 30 days before the hearing, but was not included in the document briefs delivered for the hearing. Counsel submitted that he assumed that Wawanesa was not relying on this report and had therefore not put it to his client during examination-in-chief.

Mr. Subramaniam relied on my decision in Zoozan and Markel Insurance Company of Canada.⁶⁵ In that case, I ruled that the requirement for service of documents at least 30 days before the first day of the hearing is not met, where the document is not included on the document briefs. I reasoned that a party does not otherwise know the case that must be met.

I decided here that I took the wrong approach in Zoozan. I ruled that my earlier approach did not properly consider the fact that our Rules encourage early production of documents and there is no specific requirement for delivery of a document brief. Nevertheless, the question of fairness does arise, when a brief is delivered. A party receiving one can reasonably assume that other documents will not be introduced, even though properly served. Here, I addressed the issue by allowing counsel the opportunity to re-examine his client with regard to any questions asked about the report.

Failure to cross-examine on reports

Mr. Subramaniam submitted that Wawanesa could not challenge the expert opinions he relied on, when it had not cross-examined them. I did not accept this submission. I pointed out that the submission was rejected in the decision by the Director’s Delegate in Turner and State Farm Automobile Insurance Company.⁶⁶

EXPENSES

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

July 13, 2012

Jeffrey Rogers Arbitrator

Date

ARBITRATION ORDER

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

Wawanesa shall pay Mr. Subramaniam housekeeping and home maintenance benefits in the amount of $85 per week (less $3,588.92 paid), from January 22, 2008 to November 9, 2008, $6.66 per week, for 4 weeks from November 10, 2008, and $6.66 per week, from July 1, 2009 to January 21, 2010.
Wawanesa shall pay Mr. Subramaniam income replacement benefits in the amount of $362.29 per week, from August 15, 2010, to present and ongoing.
Wawanesa shall pay Mr. Subramaniam interest for the overdue payment of benefits at the rate of 2 per cent per month, compounded monthly.
Mr. Subramaniam’s claims for other benefits and a special award are dismissed.
The decision on arbitration expenses is reserved.