Neutral Citation: 2012 ONFSCDRS 22

FSCO A11-000191

BETWEEN:

WAYNE HENRY Applicant

and

AVIVA CANADA INC. Insurer

Before: Judith Killoran

Heard: December 7, 2011 at the offices of the Financial Services Commission of Ontario. Written submissions were received on December 14, 2011.

Appearances: Geoffroy Pavillet for Mr. Henry Susan Bromley and Leanne C. Storms for Aviva Canada Inc.

Issues:

The Applicant, Wayne Henry, was involved in a motor vehicle accident on May 17, 2008. He applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Henry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Henry has brought a motion pursuant to section 67 of the Dispute Resolution Practice Code for interim benefits to be paid to him pending the resolution of his dispute with Aviva.

The issue on this motion is:

Is Mr. Henry entitled to interim benefits pursuant to section 279(4.1) of the Insurance Act?

Mr. Henry also claims interest on any amounts owing and his expenses incurred on this motion.

Result:

Aviva shall pay Mr. Henry interim attendant care benefits of $3,000 monthly, interim caregiving benefits of $300 weekly, and interim housekeeping benefits of $100 weekly, retroactive from March 9, 2010 to May 17, 2010 together with interest under the Schedule on the outstanding amounts, pending the final order in this arbitration.
Aviva shall pay Mr. Henry his expenses of the motion.

EVIDENCE:

Mr. Henry is seeking interim benefits for his attendant care, housekeeping and caregiver claims. Subsection 279(4.1) of the Insurance Act gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

An attendant care benefit is payable for all reasonable and necessary expenses incurred by Mr. Henry, if he sustained an impairment as a result of the accident, for personal care at the rate of $3,000 monthly if he did not sustain a catastrophic impairment or $6,000 monthly if he did sustain a catastrophic impairment. The test for payment of the housekeeping and caregiver claims requires that Mr. Henry suffer a “substantial inability” to engage in the housekeeping and caregiving activities in which he was engaged at the time of the accident. Mr. Henry is not entitled to payment for housekeeping services more than 104 weeks after the onset of disability unless he sustained a catastrophic impairment as a result of the accident. Aviva is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life. Mr. Henry seeks a determination that he is catastrophically impaired and continues to be entitled to benefits post-104 weeks following the accident.

Mr. Henry received from Aviva attendant care, housekeeping and caregiver benefits following his motor vehicle accident on May 17, 2008. He was a front seat passenger in a vehicle where the front seat driver died as a result of the accident. Mr. Henry was airlifted to Sunnybrook Hospital where he was diagnosed with bilateral fractures to his femurs, a fractured nose, multiple lacerations, a closed head injury and major depression. On May 29, 2008, he was transferred to St. John’s Rehabilitation Hospital where he was eventually released on August 15, 2008.² According to Dr. Anthony Feinstein, a psychiatrist who is the Director of the Neuropsychiatry Program at Sunnybrook Health Sciences Centre, Mr. Henry has been restricted to his wheelchair following the accident as a result of an accident-related conversion disorder.³

Mr. Henry’s benefits were paid until March 8, 2010 when they were terminated after a pre-104 week multidisciplinary assessment ordered by Aviva. All of the insurer’s assessors concluded that the Applicant did not suffer from a substantial inability to perform his pre-accident caregiver or housekeeping activities and did not require attendant care. As a result, Mr. Henry has been receiving attendant care and housekeeping services from his wife and children while providing some caregiving to his children as far as supervising them and assisting with their homework.

Mr. Nick Livadas, an occupational therapist, performed an in home occupational therapy assessment of Mr. Henry on December 14, 2009⁴ as part of the pre-104 week multidisciplinary assessment. He concluded that Mr. Henry could resume assisting his children and found that there were inconsistent results during functional testing which led to his diagnosis of symptom magnification.

Dr. James Delaney, an orthopaedic surgeon, assessed Mr. Henry on January 19, 2010 as part of the multidisciplinary assessment. He also reviewed a surveillance video dated September 15, 2009. He concluded that the video showed that Mr. Henry was able to do much more than he had suggested.⁵ Both Dr. Delaney and Nicholas Livadas reached their conclusions based on reliance on a surveillance video that allegedly depicts the Applicant walking, while the third insurer’s examiner, Dr. Kerry Lawson, a clinical psychologist, does not comment on the video surveillance.

Dr. Lawson, in his report of February 1, 2010⁶, diagnosed Mr. Henry with an adjustment disorder with depressed mood and anxiety, somatoform disorder, features of chronic pain syndrome, as well as persistent post-concussive syndrome. However, he believed that these impairments did not result in a substantial inability to perform pre-accident caregiver or housekeeping activities.

According to Mr. Henry’s most recent in-home assessment, he still requires housekeeping and personal care assistance and some caregiving assistance outside the home although in lesser amounts than recommended in his earlier in-home assessment report.⁷

Mr. Henry testified at the hearing that while he does not remember the accident, he does remember being in the hospital afterward for a period of several months. He claimed that he continues to suffer from the psychological effects of the accident on a day to day basis with bouts of anxiety and general depression. He is very stressed and edgy, especially near trucks on the road. He has been in a wheelchair since the accident and his wife and family continue to suffer from the consequences of his disability. His wife is the sole breadwinner for their family. There have been more and more financial fallouts for her and for their children as a result of the accident. His sons are 12 and 14-years old respectively. Mr. Henry believes that the payment of interim benefits would help his children participate in athletic programs and other activities rather than care for him. He submitted that his is an extraordinary hardship due to being confined to a wheelchair and the effect on his sons of having to provide care for their father.

At the hearing, surveillance videos were reviewed from Mantis Investigation Agency which spanned dates from September 9 to September 17, 2009 and were summarized in a report dated October 5, 2009.⁸ Mr. Henry testified that he is not the person in the surveillance video. The subject in the surveillance video can be seen at night leaving the 4 storey apartment building where Mr. Henry resides. He walks to a Canadian Tire store which is located nearby. He is seen briefly talking to a store clerk before exiting the store. He then walks in the parking area toward another store which is a Mark’s Work Warehouse. The subject exited the store about 10 minutes later and proceeded back to the apartment building. In the video, the subject was viewed walking in a normal fashion for several minutes.

Mr. Henry attended a multidisciplinary catastrophic assessment in July 2011 where the insurer’s assessors concluded that he did not suffer from a catastrophic impairment. The assessment included an orthopaedic assessment; a neurological assessment; a psychiatry assessment; and an activities of daily living functional assessment.

Dr. Gallimore, an orthopaedic surgeon, concluded that there was no musculoskeletal or orthopaedic impairment that would justify an impairment rating.

Dr. Yufe, neurologist, concluded that the Applicant did not meet the threshold for catastrophic determination using either the Glasgow Coma scale or the Glasgow Outcome Scale.⁹ He characterized Mr. Henry as evasive, deceitful and blustering. He found that Mr. Henry was making manipulative attempts to benefit from the accident.

Dr. Eisen, a psychiatrist, diagnosed Mr. Henry with factitious disorder and concluded that it was not caused by the accident but rather, it was a “manipulative attempt to benefit from it.”¹⁰

Mr. Henry relies on the reports submitted by Dr. Harold Becker and Dr. Lisa Becker as evidence that he is catastrophically impaired. On May 25, 2011, Dr. Harold Becker completed an OCF-19 application for the Catastrophic Designation. However in their report, Drs. Harold and Lisa Becker state that they are not certain whether the applicant’s impairments are rateable and that further testing needs to be done.¹¹

TEST FOR INTERIM BENEFITS

Many considerations have been relied on by arbitrators to determine entitlement to interim benefits. Principally, arbitrators have applied the prima facie test and that of urgency/necessity.¹² A prima facie case is one in which a party provides evidence, which if unanswered and believed, is sufficient to render a reasonable conclusion in favour of entitlement. In Nguyen and State Farm Mutual Automobile Insurance Company of Canada,¹³ Arbitrator Wilson embraced a “look at the whole case” approach to awarding interim benefits.

Aviva relied on Z and Dominion of Canada General Insurance Company of Canada¹⁴ which emphasized the importance of having a full hearing of all the evidence and not awarding interim benefits on a routine basis. Aviva claims that a summary review of the evidence does not demonstrate a prima facie case in the matter before me. A multidisciplinary assessment in December 2009/January 2010 ruled that Mr. Henry did not suffer a substantial inability to perform pre-accident caregiver or housekeeping activities.

Aviva submitted that this case hinges on questions of credibility and competing medical opinions which must be determined at a full hearing. The parties are entitled to the hearing of all the evidence at a full hearing. Aviva submits that whether Mr. Henry suffers from a conversion disorder or a factitious disorder is a matter for the hearing arbitrator to decide. However, if Mr. Henry suffers from a conversion disorder, then the question for the interim benefits motion is one of extraordinary hardship.

Aviva submitted that Mr. Henry was capable of giving his children the same caregiving as prior to the accident and failed to prove any necessity or urgency. It is prejudicial to Aviva to improperly award benefits which may need to be repaid and Aviva will not be able to recover. To summarize, Aviva submitted that there is no prima facie case, there is contradictory evidence, no sense of urgency or necessity and there is potential prejudice to the respondent.

Aviva relied on Coutu and Wawanesa Mutual Insurance Company ¹⁵ where there was no order because there was no urgency. The arbitrator held that virtually all claimants will suffer some financial hardship while waiting for the resolution of a dispute. However, in his view, the Schedule already contains provisions to compensate an applicant for such financial hardship by way of a high compounded interest rate and the potential of a special award. In Huynh and TD Home and Auto Insurance Company,¹⁶ the Arbitrator also refused to order interim caregiver benefits where the applicant had not demonstrated any urgency.

Mr. Henry’s wife’s affidavit states that the household is in dire financial distress as the monthly liabilities well exceed the monthly income.¹⁷ Also, in the affidavit of Susan Abraham, she states that the Applicant has called her on a nearly bi-weekly basis since the termination of his benefits and advised of his dire financial condition.”¹⁸

Mr. Henry submits that the test of need/urgency is met by the fact that he and his boys and his wife need help now, not later in life and Mr. Henry is not able to provide for his family but needs to receive help from them instead. This reversal of roles causes irreparable harm whereas an interim benefits award only creates a potential prejudice to Aviva as it is subject to a final order and must be repaid if Mr. Henry is not successful at the arbitration hearing.

Mr. Henry makes a compelling argument that while he is accused of lying about his condition in a manipulative attempt to benefit from it, Aviva, in turn, may have either negligently or maliciously relied on surveillance of an unidentifiable black male filmed walking in the middle of the night and used the surveillance to taint its medical evidence. Although the case is one of symmetrically serious accusations requiring a hearing, Aviva’s termination of benefits to a man in a wheelchair has asymmetrical consequences in the interim which go to the root of family relationships which may not be reparable.

Aviva’s argument is that Mr. Henry should be denied interim benefits due to credibility issues, competing medical opinions, and routine financial hardship, concluding that because his family is providing his care, Mr. Henry is not in a worse position from the accident. Mr. Henry responds that a person died in the accident, a person who was sitting beside him in the vehicle, he spent 4 months hospitalized, is still in a wheelchair today, and the only help he can afford is from his family. This is not a routine accident with routine consequences.

CONCLUSION

I agree with Aviva that both parties require the holding of a full hearing in order to determine Mr. Henry’s entitlement to post-104 week benefits and a catastrophic impairment designation. However, whether I apply the prima facie test or Arbitrator Wilson’s “big picture” test, which I prefer, I find that Mr. Henry qualifies for benefits until the expiration of the 104 week period following the accident.

Mr. Henry has filed strong medical evidence which supports his claim for accident benefits for 104 weeks following his accident. I attach more weight to his medical evidence than that of Aviva, much of which was tainted by reliance on a surveillance video and report of questionable probative value.

It is worthwhile to review the additional criteria for awarding interim benefits suggested by the arbitrator in Ioannidis and Canadian General Insurance Group. ¹⁹ Four additional concerns were addressed.

First, there must exist an element of necessity or urgency. I find that Mr. Henry has been reduced to obtaining all attendant care help from his family which has deleterious effects on everyone in the family. Not only he but his sons and his wife could have benefited from the provision of attendant care, caregiving and housekeeping assistance from external providers. Although Mr. Henry was not employed at the time of the accident, it was as a result of being laid off from his employment the previous year and there was no expectation that he would not work again.

The arbitrator in P.M. as representative of the Estate of D.M. and Dominion of Canada General Insurance Company²⁰ expressed the following concern in a case similar to the one before me: “[t]he stress of the [Applicant’s] financial situation, the possible loss of the family home, and the loss of a sense of security cannot possibly be helpful to her son’s recovery. Indeed, it may further compromise or jeopardize that recovery. Depending on his circumstances, the harm may become irreparable. Even if this is not the case, I am not persuaded that the emotional health of a teenager can be repaired at some later stage by an award of interest or a special award.”

Second, a blatant disregard by the insurer of the Schedule or the Act is a consideration when recognizing the consumer protection aspect of the legislation.

The surveillance evidence filed by Aviva was grainy, taken at night and did not establish to my satisfaction that the subject was Mr. Henry, who denied that it was him. I am concerned that this poor quality surveillance was provided to a number of medical assessors as surveillance of Mr. Henry. As could be expected, the conclusions of the insurer’s assessors about Mr. Henry were based on a belief that they were assessing a man who was confined to a wheelchair during the day and roaming the streets upright nightly. It is little wonder that the assessors drew adverse conclusions about Mr. Henry.

Third, an interim order is subject to a final order and an arbitrator may order interim benefits repaid. Mr. Henry submitted that although his tort action is expected to be lengthy, it will likely give him the means to repay any interim order of benefits if he is not successful at the arbitration hearing.

Fourth, the onus of proof remains on the insured person. I find that Mr. Henry has satisfied his burden of proof, on a balance of probabilities, with respect to his claims for pre-104 week accident benefits under the Schedule.

Consequently, I find that Mr. Henry is entitled to interim attendant care benefits of $3,000 monthly, interim caregiving benefits of $300 weekly, and housekeeping benefits of $100 weekly, retroactive from March 9, 2010 to May 17, 2010 together with interest on the outstanding amounts, pending the final order in this arbitration.

EXPENSES:

Mr. Henry is entitled to the expenses of this motion. I encourage the party to resolve the quantum of expenses. However, if they are unable to agree, they may apply for an expense hearing before me, pursuant to the Dispute Resolution Practice Code.

March 1, 2012

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario