Neutral Citation: 2015 ONFSCDRS 12 FSCO A13-005129

BETWEEN:

DOUGLAS RELF Applicant

and

PRIMMUM INSURANCE CO. Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Alan Mervin Heard: August 21, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Appearances: Stacey L. Stevens for Mr. Relf J. Claude Blouin for Primmum Insurance Co.

Issues:

The Applicant, Douglas Relf, was injured in a motor vehicle accident on August 4, 2010. He applied for and received statutory accident benefits from the Insurer, Primmum Insurance Co. (“Primmum”), payable under the Schedule.¹

The parties were unable to resolve their disputes through mediation, and Mr. Relf applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Relf has brought a motion pursuant to Section 67 of the Dispute Resolution Practice Code — Fourth Edition for interim benefits to be paid to him pending the resolution of his dispute with Primmum.

The issues on this motion are:

Is Mr. Relf entitled to interim benefit payments for Attendant care and Medical and Rehabilitation expenses pursuant to Section 279(4.1) of the Insurance Act in excess of the statutory maximums for non-catastrophic injuries prior to a determination as to whether or not the Applicant has suffered a catastrophic impairment?
Is either party liable to pay the expenses of this motion?

Result:

Mr. Relf is not entitled to interim benefits for attendant care or Medical and Rehabilitation expenses.
The question of entitlement to expenses in this motion proceeding is remitted to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Introduction

Mr. Relf seeks interim attendant care and rehabilitation benefits on an ongoing basis, pending the outcome of his arbitration hearing scheduled to commence on June 22, 2015, in Cobourg, Ontario. Mr. Relf will seek a determination that he has suffered a catastrophic impairment at that hearing.

Mr. Relf was struck by a combine tractor while driving his motorcycle on August 4, 2010, allegedly suffering a traumatic brain injury and other personal injuries as a result of the collision. He was assessed as requiring 24-hour attendant care benefits, and required funding for medical/rehabilitation services. He was paid attendant care benefits at the maximum monthly rate of $6,000.00 until May 2012, when he had exhausted the policy limits of his non catastrophic attendant care benefit. The policy limits for his rehabilitation and medical services at non-catastrophic levels was exhausted in August 2012.

The issue of whether Mr. Relf has suffered a catastrophic impairment has not yet been determined. However, Mr. Relf is seeking payment of these benefits in excess of the non-catastrophic limits on an interim basis pending a determination that he has suffered a catastrophic impairment.

For the reasons that follow, I conclude that since the non-catastrophic policy limits are exhausted, I have no jurisdiction to order payment of interim benefits. I also conclude that, in any event, Mr. Relf does not meet the test for entitlement to interim benefits.

NO JURISDICTION

The authority to order payment is interim benefit is derived from Section 279(4.1) of the Insurance Act ("the Act") which gives arbitrators the discretionary authority to make interim orders pending the final order in any matter.

It is clear that in the usual case, an arbitrator has discretion to order interim benefits prior to a full arbitration. However, this is not the typical claim for interim benefits, as there has been no termination or denial. There is no authority that counsel has been able to produce or that I am aware of to suggest that interim benefits can be ordered where the issue to be considered is whether or not the Applicant has suffered a catastrophic impairment, and the non-catastrophic policy limits are exhausted.

Section 16 of the Schedule deals with Attendant Care Benefits for accidents occurring prior to September 10, 2010.

Section 16(5) states as follows:

The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rule:

If the accident occurred on or after October 1, 2003, and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

(i) $3000 per month if the insured person did not sustain a catastrophic impairment as a result of the accident, or

(ii) $6,000 per month if the insured person sustained a catastrophic impairment as a result of the accident.

Section 18 of the Schedule deals with duration of the attendant care benefit. It states:

(2) No attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.

(3) Subsections (1) and (2) do not apply in respect of an insured person who sustains a catastrophic impairment as a result of the accident.

The monetary limits for the Medical Rehabilitation and Attendant Care Benefits are contained in Section 19. That section states:

(1) The sum of the medical and rehabilitation benefits paid in respect of an insured person shall not exceed, for any one accident,

(a) $100,000; or

(b) if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000.00.

(2) the amount of the attendant care benefit paid in respect of an insured person shall not exceed, for any one accident,

(a) $1,000,000.00 if the insured person sustained a catastrophic impairment as a result of the accident;

(b) nil, if the accident occurred after April 14, 2004 and the insured person’s impairment is a Grade I or Grade II whiplash associated disorder that comes within a Pre-approved framework guideline; or

(c) $72,000.00 in any other case.

The monthly maximums in Section 16, and the total amounts in Section 19 are limits prescribed by statute. The wording of the sections, which states that the amounts “shall not exceed…” are mandatory, and I find that I do not have discretion to allow benefits over these amounts prior to a finding of catastrophic impairment.

In my view, that finding is a condition precedent to ordering any payment over the non-catastrophic limits found in these sections, and as a result, under the circumstances of this case, where there has not been a finding of catastrophic impairment, I cannot grant this motion.

In the absence of statutory authority to award amounts over the non-catastrophic limits without a finding of catastrophic impairment having been made, and in the absence of any binding or persuasive authority in cases where such an order has been made, I agree with the Insurer that I do not have jurisdiction to make such an order.

The Insurer stated at the hearing of this motion, that, “in order to make an order for post-104 attendant care benefits, which is what you’re being asked to do, you have to find he’s CAT, and I submit to you that that’s putting the cart before the horse because that issue has not been decided.” ²

I agree with this submission. In my opinion, I am lacking jurisdiction to make the order requested, and bound by the limits expressly stated in the Act.

MR RELF DOES NOT MEET THE ENTITLEMENT TEST

The Act itself contains no guidance to an arbitrator with respect to the factors to consider in deciding whether or not to exercise the discretion to order payment of interim benefits. Arbitral decisions with respect to the granting of interim benefits have incorporated various approaches.

In the decision of Nguyen and State Farm Mutual Automobile Insurance Company,³ Arbitrator Wilson’s preferred approach is to look at the whole case, and consider the strength of the case from the perspectives of both parties.

Under this approach, it is open to an arbitrator to award interim benefits where, based on the evidence before the Commission, the applicant would ultimately be successful.

Where a summary review of the evidence leads to an ambiguous result (perhaps because further elaboration or cross-examination is required), then it cannot be said that the applicant is likely to be successful, and interim benefits should not be ordered. I prefer this approach.

In this case, a summary review of the evidence leads to an ambiguous result, and it cannot be said that based on what has been put before me at this time, that Mr. Relf will ultimately be successful.

There is a marked disparity between the findings of the doctors with respect to catastrophic impairment that cannot be resolved without a full hearing. I do not find it appropriate to ignore the evidence of the insurer, as the Applicant has urged me to do, in order to find for the Applicant.

I am sympathetic to the Applicant. Clearly, there is some urgency if the medical evidence of his assessors is accepted, and I cannot ignore the fact that the insurer acknowledged this need by paying attendant care at increased levels until the maximums were reached, and never terminated this payment for any other reason. While the evidence supporting financial need is somewhat lacking, the evidence with respect to the emotional impact on the family is compelling.

However, urgency and need alone do not create entitlement to interim benefits. The application for interim attendant care benefits and medical/rehabilitation must be denied because the evidence does not satisfy the threshold test for entitlement.

EXPENSES:

No submissions were made with respect to expenses in the submissions of either party. The question of entitlement to expenses in this motion proceeding is remitted to the hearing arbitrator.

January 26, 2015

Alan Mervin Arbitrator

ARBITRATION ORDER

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

Mr. Relf is not entitled to interim benefits for Attendant Care and Medical and Rehabilitation expenses at this time.
The question of entitlement to expenses in this motion proceeding is remitted to the hearing arbitrator.