Bhupinder Singh Grewal v. AIG Commercial Insurance Company of Canada, 2015 ONFSCDRS 165

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 165

Appeal P14-00032

OFFICE OF THE DIRECTOR OF ARBITRATIONS

BHUPINDER SINGH GREWAL

Appellant

and

AIG COMMERCIAL INSURANCE COMPANY OF CANADA

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. Frank J. Burns for the Appellant, Mr. Bhupinder Singh Grewal

Mr. J. Claude Blouin for the Respondent, AIG Commercial Insurance Company of Canada

HEARING DATE:

June 19, 2015

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. This appeal is dismissed and the Arbitrator’s August 7, 2014 order is confirmed.

2. An appeal expense hearing shall be requested, as set out below, within sixty days of the date of this decision.

August 13, 2015

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL AND BACKGROUND

The Appellant, Mr. Bhupinder Singh Grewal, was injured in a January 18, 2009 motor vehicle accident and applied to his first-party automobile insurer, the Respondent AIG Commercial Insurance Company of Canada, for statutory accident benefits payable under the 1996 Schedule.¹

At the appeal hearing, the parties confirmed their agreement that the accident had caused the Appellant to sustain a catastrophic impairment, as defined in the 1996 Schedule. The parties, however, disagreed on the Appellant’s entitlement to income replacement (“IRB”), caregiver, housekeeping, attendant care and medical benefits, as well as the cost of certain assessments.

The August 7, 2014 decision of Arbitrator Feldman (the “Arbitrator”) dismissed the Appellant’s claims other than any amounts left to be paid under a February 4, 2009 treatment plan.

The Appellant’s appeal is limited to the Arbitrator’s denial of:

(1) IRBs ongoing from July 9, 2009; and,

(2) US $56,600 for a September 24, 2012 Treatment and Assessment Plan (OCF-18) of Dr. S. Connell, psychiatrist, for treatment at the Sierra Tucson facility.

II. ANALYSIS

(1) Motion to allow Fresh Evidence

The Appellant argues, in part, that the Arbitrator erred in not admitting into evidence a September 10, 2013 neuropsychological assessment of Dr. G. as fresh evidence.

Within this appeal, the Appellant brought a motion that he be allowed to adduce the following additional reports into evidence:

1. March 9, 2015 Insurer Medical Examination (“IME”) neuropsychological report of Dr. K. Lawson

2. March 23, 2015 IME psychiatric re-assessment report of Dr. K. Walsh

3. April 7, 2015 psychiatric report of Dr. S. Connell

4. Dr. Young’s September 10, 2013 neuropsychological report

Brookes and Aviva Canada Inc., (FSCO P09-00004, December 2, 2009), set out the following criteria on whether fresh evidence should be allowed on appeal:

1. Could the evidence, by due diligence, have been adduced at the arbitration?

2. Is it relevant in that it bears on a decisive or potentially decisive issue?

3. Is the evidence credible, in the sense that it is reasonably capable of belief?

4. If believed, could it reasonably, when taken with the other evidence adduced, be expected to have affected the result?

This recitation follows both Visagie v. TVX Gold Inc., 2000 CanLII 5749 (ON CA) and R. v. Palmer, 1979 CanLII 8 (SCC).

The Appellant submits that in the present case:

• As Drs. Walsh and Lawson’s IME reports post-date the arbitration decision, that evidence could not be obtained by due diligence at the arbitration hearing.

• All four reports speak to the Appellant’s disability ongoing from the accident and thus bear on decisive issues at arbitration and on appeal. It is submitted that Dr. Lawson’s report speaks to the Appellant’s cognitive deficits and Dr. Walsh’s to the Appellant’s ability to work and need for treatment.

• The expert evidence is capable of belief. Drs. Walsh and Lawson are qualified experts chosen by the Respondent. Their reports show the Appellant having significant cognitive impairment which, the Appellant argues, addresses the question of his credibility and explains any discrepancies in his oral evidence. The Appellant argues that when taken with the other evidence at arbitration it would have affected the result.

The Respondent objects to this fresh evidence for the following reasons:

• The Appellant is attempting to re-litigate the issues argued before the Arbitrator. As the Appellant’s file is still being adjusted with further IMEs being generated, this present litigation could go on endlessly.

• The evidence is not relevant to the issue of IRBs.

• While the evidence is possibly relevant to the issue of treatment at Sierra Tucson, that issue is now to be heard at arbitration on July 21, 2015.

• The Appellant had every opportunity to put his case before the Arbitrator.

The Appellant notes the Court of Appeal decision in Mercer v. Sijan, (1977) 1976 CanLII 654 (ON CA), 14 O.R. (2d) 12, that the “competing considerations, on the one hand, are the public interest in the finality to litigation, and, on the other hand, the affront to common sense involved in a Court shutting its eyes to a fact which falsifies the assessment.” In a case note on the House of Lords decision in Mulholland v. Mitchell [1971] AC 666, Lord Wilberforce is noted as saying that fresh evidence may be admitted “if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant.”

The Appellant also submits, citing in support Children’s Aid Society of Peel v. W. (M.J.), 1995 CanLII 593 (ON CA), 23 O.R. (3d) 174, that if admitted, the fresh evidence must be reviewed with the other evidence to determine the appropriate disposition of the appeal.

Balancing the public interest in finality to litigation with the public interest in an ongoing, fair and open-minded adjusting of a first-party automobile insurance claim, the Legislature allows for variation applications. Subsection 284(3) of the Insurance Act, R.S.O. 1990, c. I.8, states:

If the arbitrator or Director is satisfied that there has been a material change in the circumstances of the insured or that evidence not available on the arbitration or appeal has become available or that there is an error in the order, the arbitrator or Director may vary or revoke the order and may make a new order if he or she considers it advisable to do so.

This, however, is not a variation proceeding. This is an appeal.

In oral submissions, the Appellant stated that if successful on appeal in setting aside the Arbitrator’s IRB order, the issues of IRB entitlement and quantum should return to arbitration for determination. Appeals, under subsection 283(1) of the Insurance Act are restricted to questions of law. I have no jurisdiction in this appeal to usurp the Director’s powers under the variation provisions of the Insurance Act to return this matter to a new arbitration hearing simply on the basis there is new evidence available.

Regarding the Sierra Tucson treatment plan, I am not persuaded to accept the fresh evidence in order to review these new reports together with the prior evidence that is available (most of the transcript evidence having not been ordered) to vary the Arbitrator’s prior order with my own findings of fact or to usurp the role of the hearing arbitrator who is rehearing the matter.

The Appellant argues that the Arbitrator erred in not allowing Dr. Young’s September 10, 2013 report into evidence. The Arbitrator held at Footnote 13 of his decision:

In October 2012, the Insurer approved a plan for a new neuropsychological assessment by Dr. Young. Dr. Young, however, did not prepare a report until September 10, 2013. The Insurer objected to the introduction of this report into evidence at this proceeding because this report was not delivered to the Insurer at least 30 days prior to the commencement of this hearing (as required by Rule 39.1 of the Dispute Resolution Practice Code). The Applicant was unable to demonstrate extraordinary circumstances justifying the admission of such late evidence (pursuant to Rule 39.2 of the Dispute Resolution Practice Code). I therefore did not grant permission to the Applicant to file the report of Dr. Young as evidence in this proceeding.

The Appellant argues that Dr. Young’s report could not have been adduced earlier by due diligence. At paragraph 65 of his April 3, 2015 written submissions, he submits that his counsel had been attempting to obtain a valid neuropsychological assessment for over two years and that Dr. Young’s assessment was the first valid neuropsychological result that could be obtained despite his counsel’s diligence. I inquired where I would find evidence for this submission. The Appellant advised there was none before me.

The Appellant states that the practice effect of earlier neuropsychological testing was the reason for the delay in obtaining Dr. Young’s report. I inquired where I would find the evidence for this submission. The Appellant advised there was none before me. In the absence of evidence, I am not persuaded that Dr. Young’s September 10, 2013 report, with due diligence, could not have been properly served in accordance with Rule 39.1 of the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014) (the “Code”) prior to the arbitration hearing.

The Appellant notes the Arbitrator’s June 11, 2014 letter changing his mind and allowing into evidence the November 27, 2013 IME home assessment of Ms. N. Kazim, O.T., and the December 9, 2013 IME speech language pathology report of Ms. J. Peacock. The Arbitrator held, in part, that the reports might well be relevant and he preferred to have as much relevant information before him as possible, especially as the parties had opted to rely primarily upon documentary evidence and expert’s reports and adduced rather limited oral evidence. The Appellant argues the Arbitrator should have applied the same principles to Dr. Young’s report.

It is to be noted it was not the Respondent insurer, but rather the Appellant who asked that the IME reports of Ms. Kazim and Ms. Peacock be allowed into evidence. The Respondent opposed that request. The Respondent states it does not understand why the Arbitrator, after initially not allowing those IME reports into evidence, changed his mind.

The pre-hearing in this case was held January 25, 2011. The arbitration hearing was set for August 2011. The January 25, 2011 pre-hearing letter, at page five, specifically noted the 30-day requirement for serving documents, with the exception of extraordinary circumstances.

Five days before the arbitration hearing was to start, it was adjourned on consent to October 2012 to allow a private mediation. The hearing was then adjourned a second time to allow for mediation and due to the Appellant’s counsel’s scheduling conflict. The Appellant’s October 24, 2011 letter stated he was at real risk of losing his home. The arbitration hearing was moved up to April 2012. However, in January 2012, the Appellant requested that date be adjourned due to his counsel’s busy schedule and mediation now scheduled for July 2012. On consent, the arbitration hearing was put over to December 2012. Due to the trial commitments of the Appellant’s counsel, the hearing was again adjourned, this time to September 30, 2013.

The 30-day rule for service of documents under Rule 39.1 of the Code does not exist in a vacuum. It exists in the context of Rule 1.1 that the purpose of the Rules is to achieve the most just, quickest and least expensive resolution of the dispute. It exists in the context of the consumer protection purpose of this legislation, as stated in in Rocheleau and Allstate Insurance Company of Canada, (FSCO P11-00017, February 23, 2012), of providing timely assistance to victims of motor vehicle accidents. This includes both parties moving matters to resolution in a timely and reasonable manner.

The Appellant had two and a half years from the pre-hearing to prepare for the hearing. The Respondent approved Dr. Young’s new neuropsychological assessment eleven months before the arbitration hearing. There is no evidence of extraordinary circumstances, as required, allowing late service. I am not persuaded the Arbitrator erred in law in exercising his discretion under Rule 39.2 of the Code not to set aside the Rule 39.1 30-day rule regarding Dr. Young’s report.

(2) IRB Quantum

In March 2009 the Appellant elected, under the 1996 Schedule, to claim weekly caregiver benefits. In July 2009, he re-elected to receive weekly IRBs. The Arbitrator permitted that re-election. That decision is not appealed.

The Arbitrator found that in the summer prior to the accident the Appellant had begun driving a tractor-trailer full-time, moving auto parts between Michigan and Toronto. This continued until the January 2009 accident. The Arbitrator stated the Appellant “admitted to working extensively after the accident of January 2009” but had “provided virtually no documentation to verify the details of his post-accident employment and income.” The Arbitrator concluded the Appellant had failed to adduce sufficient evidence of loss of income to permit an IRB calculation.

The Appellant’s written submissions argue that the Arbitrator erred in addressing IRB quantum as only IRB entitlement had been mediated. As subsection 281(2) of the Insurance Act requires a failed mediation as a mandatory prerequisite for a matter to proceed to arbitration, the Appellant submits the Arbitrator had no jurisdiction to determine the quantum of the IRB payable.

The Appellant also argues that at no time prior to the arbitration did the Respondent request from him a Declaration of Post Accident Income and Benefits (OCF-13) or any financial information.

He maintains he had no notice that IRB quantum was in issue at arbitration and, notwithstanding his brain injury and cognitive impairment, the Arbitrator gave him no “opportunity to gather and collect income information with respect to his earnings post accident.”

I find these arguments in this case to be without substance.

The October 20, 2009 Report of Mediator (four years before the arbitration hearing) specifically states the Appellant was seeking IRBs at the maximum rate of $400 per week ongoing from July 8, 2009. Rule 23 of the Code states that if a party believes the Report of Mediator is not accurate, the party must notify the mediator and the other parties in writing, with reasons, within ten days of receiving the Report. I was not referred to any correspondence. In oral submissions, the Appellant withdrew his submission that IRB quantum had not been mediated.

Arbitrator Bujold’s January 25, 2011 pre-hearing letter (two and a half years before the arbitration hearing) notes the same counsel as those who attended the arbitration hearing. Arbitrator Bujold states the parties identified and agreed the issues in dispute included:

2. Is Mr. Grewal entitled to receive a weekly income replacement benefit from July 8, 2009 and ongoing, pursuant to section 6 of the Schedule?

After receiving weekly caregiver benefits, Mr. Grewal re-elected to receive a weekly income replacement benefit from July 8, 2009 and ongoing. AIG disputes Mr. Grewal’s right to re-elect in the circumstances of the case.

3. What is the amount of the weekly income replacement benefit that that Mr. Grewal is entitled to receive, pursuant to s. 6 of the Schedule?

Mr. Grewal claims that he is entitled to a weekly income replacement benefit from July 8, 2009 and ongoing in the amount of $400 per week.

[Emphasis Added]

The Appellant retained Rich Rotstein LLP, Chartered Accountants, in this matter. Their August 9, 2011 report (two years before the arbitration hearing) notes, at Schedule 3, the Appellant’s IRB as $183 per week, which would be subject to any post-accident income. The same amount was provided in their July 12, 2012 report (more than a year before the arbitration hearing).

Notwithstanding the argued lack of jurisdiction the Appellant requests, at paragraph 126 of his April 3, 2015 written submissions, in addition to an appellate order of ongoing IRBs from July 9, 2009, a reference back to arbitration to determine the amount of the weekly IRB payable.

The Arbitrator set out the IRB issue as whether the Appellant was “entitled to receive weekly income replacement benefits from July 8, 2009 onwards at the rate of $183 per week.” I am not persuaded that the Arbitrator erred in law in this regard.

The Arbitrator held, at pages 14 to 15 of his decision:

The onus is upon the Applicant to establish both that he meets the threshold level of impairment to qualify for the benefits claimed (i.e., a substantial inability to perform the essential tasks of the pre-accident employment) and also the quantum of the benefit to which he is entitled. In this case, where the Applicant has admitted working extensively after the accident, this requires credible and sufficient evidence of post-accident earnings to permit quantification of the Applicant’s loss of income, if any, and to permit calculation of any income replacement benefit to which he might be entitled (after appropriate deductions for post-accident income); I find that the Applicant has failed to meet this onus.

… Commencing July 8, 2009, the Applicant purported to re-elect and claim income replacement benefits. For the period from July 8, 2009 to December 31, 2009, even if I were to assume that the Applicant met the requisite test for disability, I am unable to calculate an income replacement benefit in the absence of credible and sufficient evidence as to the income earned by the Applicant during this period.

I am not satisfied that I can rely upon the tax return for 2009 provided by the Applicant (showing income from employment of $2,858.70). No supporting documentation (such as T4s) has been provided and no Notice of Assessment for 2009 has been submitted. The evidence demonstrates that the Applicant did some work in a factory in 2009 and also began driving his truck again (earning up to $2,500 per month) at some point in 2009 but no documentation concerning those jobs or the income generated has been provided. As previously stated, there is some indication (from Dr. Badhwar) that the Applicant may have returned to full-time work by the summer of 2009 (if not earlier). Given the fact that the Applicant has testified that the income he earned prior to the accident was substantially greater than the income he reported to Canada Revenue Agency, I find that I cannot rely upon the Applicant’s 2009 income tax return without further supporting documentation and further particulars, which the Applicant has simply failed to produce without any explanation.

As for 2010, once again, I have difficulty relying solely upon the 2010 tax return without supporting documentation and further particulars. Nevertheless, even if I take the 2010 income tax return at face value, the Applicant’s reported income for 2010 was virtually identical to his reported annual income at the time of the accident. Limited as it may be, the Applicant’s own evidence suggests that he sustained no loss of income in 2010.

The Appellant argues that the particulars of his post-accident employment are to be found in the July 20, 2011 Evergreen Rehabilitation Services report of Ms. H. Klein, Rehabilitation Counsellor. Ms. Klein states that since October 2010 the Appellant had been working part-time, “approximately 3-4 days per week.” The Appellant submits “it was unfair for the Arbitrator to rely on [his] vague recollection of cash income he had received from attempts to work part-time as a truck driver.”

The Arbitrator states, at page 17 of his decision:

From 2011 through 2013, the Applicant (according to his own reports) may have been working 50 hours each week, more or less continuously. According to other reports by the Applicant, at the very least, he worked 25 to 30 hours per week for 5 or 6 months each year. Given the conflicting reports of the Applicant, his vague testimony on this topic at the hearing and the lack of any documentation from either the Applicant or third parties regarding the Applicant’s post-accident employment, I am unable to get a clear picture of the Applicant’s work history subsequent to the January 2009 accident.

In Liberty Mutual Insurance Company and Young,² Delegate Evans cited Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003):

…errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was “no evidence” to support a finding and a mere “insufficiency of evidence.”

Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, stated that “an appeal is not a retrial of a case.” The Supreme Court quoted with approval Underwood v. Ocean City Realty Ltd. (1987), 1987 CanLII 2733 (BC CA), 12 B.C.L.R. (2d) 199 (C.A.):

The appellate court must not retry a case and must not substitute its view for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

Rothwell v. Raes (C.A.), 1990 CanLII 6610 (ON CA), held that it is not for an appellate level “to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony.” Subsection 283(5) of the Insurance Act allows an appellate officer, based on an error of law, to vary the arbitrator’s order appealed from or substitute his or her order for that of the arbitrator. There is no provision for the appellate officer varying or substituting his or her findings of fact for that of the arbitrator.

I agree with the Arbitrator the insured person has the onus of establishing the quantum of the weekly IRB payable. I am not persuaded, as argued by the Appellant, to now take note of alleged statistics that truck drivers make $70,000 yearly. The Appellant concedes that no such evidence was before the Arbitrator. I am not persuaded by the Appellant’s argument that he had the onus only to prove his pre-accident income (which was not in dispute) and had no requirement, when he conceded working extensively post-accident, to establish his post-accident income to allow the Arbitrator to determine the quantum of the weekly IRB to which he was entitled.

The Appellant retained counsel as well as an accounting expert. IRB quantum had been in issue for five years prior to the arbitration hearing. I am not persuaded the Appellant had no notice of this issue. I am not persuaded the Arbitrator was unfair in having this issue proceed. I am not persuaded the Arbitrator should have ignored the Appellant’s oral evidence. I am not persuaded by the Appellant’s recollection he could not have been on the stand for more than one hour of the four-day hearing. The Appellant did not order a transcript of his evidence. The Respondent states the Appellant testified for two days, including three hours in chief.

The Appellant argues that Ms. Klein’s report was just as good as sworn viva voce evidence to determine IRB entitlement and quantum because it was expert evidence.

The Appellant, at paragraph 63 of his written submissions, cites Walker and State Farm Mutual Automobile Insurance Company, (OIC A-009905, February 23, 1996), upheld on appeal

(OIC P96-000036, December 3, 1996), as having “aptly summarized the role of the arbitrator:”

… the arbitrator has the responsibility of considering all the evidence — not just the evidence from the DAC [Designated Assessment Centre, designated medical experts under prior legislation] — and making a final determination based on his or her best judgement. It is not sufficient to simply accept or adopt the judgement of the DAC assessor, who does not have the legal responsibility or opportunity to hear and weigh all the available evidence in a particular case.

Ms. Klein is not an adjudicator. The Appellant concedes that Ms. Klein’s estimate of post-accident employment was simply based on information he gave her. The Appellant conceded that information could not be relied upon based on his submission that he is cognitively impaired.

I am not persuaded that Ms. Klein’s report can overrule the Arbitrator’s findings. I am not persuaded the Arbitrator erred in law in finding the Appellant had not met his onus in establishing the IRB quantum to which he was entitled. I am not persuaded I have jurisdiction to retry that issue and make new findings of fact.

The Appellant states he still wishes to have a reference regarding IRB quantum. References are addressed in Rules 54 and 55 of the Rules of Civil Procedure. They apply where all affected parties consent, a prolonged examination of documents or an investigation is required that, in the opinion of a judge, cannot conveniently be made at trial, or a substantial issue in dispute requires the taking of accounts. The Appellant submits that further employment and income documents are required and he can prove his IRB quantum by calling his bookkeeper and filing his post-2012 income tax returns and assessments.

References do not exist in the Code. The Code is meant to enhance a simpler, less costly and more expeditious resolution of first-party claims of victims of motor vehicle accidents. I am not persuaded the question of IRB quantum should go back to arbitration for a new hearing to allow the Appellant to properly prepare for this issue the second time around.

(3) Entitlement to Pre-104 week IRBs

The Appellant argues that his cognitive injuries resulting from the accident prevent him from safely operating a long-haul transport truck on a major Ontario highway. He states that notwithstanding that his licence was suspended by the Ministry of Transportation he continued working as a truck driver, but only in a reduced capacity and only out of economic necessity, poor judgment and a lack of insight into the dangers of his driving.

The Appellant submits it is not a question of what work he was doing but whether he could do that work safely. He notes the July 20, 2011 opinion of Ms. Klein that until his cognitive impairment, amongst other concerns, was properly understood:

… I do not feel that Mr. Grewal should continue operating a large transport truck. I believe that he is placing himself and others on the road at risk for potential serious injuries should he not be able to react appropriately or should his concentration lapse when driving. Rather, I feel that he would be better suited to some form of sedentary employment.

The Appellant states that the Arbitrator did not mention Ms. Klein in his reasons and that he further erred in failing to address the voluminous evidence including that of Dr. Young, Dr. M.P. Rathbone, neurologist, and Ms. N. Tamir, OT. The Appellant argues that the Arbitrator ignored the expert evidence of both parties and erred in determining IRB entitlement based on only physical rather than also on cognitive function.

The Appellant argues that Dr. Rathbone’s evidence is especially credible as he saw him four times and interviewed his wife, a friend who accompanied him on many of his work trips and his family doctor, Dr. A. Dhillon. The Appellant conceded that neither his wife nor his friend testified at arbitration. I am not advised whether Dr. Dhillon testified.

In written argument, the Appellant submitted that Arbitrator Huberman, in Taylor and Pembridge Insurance Company of Canada, (FSCO A12-004886, June 11, 2014), at page 20, stated that the failure to address and deal with evidence constitutes an error of law. At oral submissions, the Appellant was unable to find that statement. Arbitrator Huberman, however, did state that “Adjudicators decide cases, experts do not.” With that statement I fully agree.

The Ontario Divisional Court, in State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099, stated that “[n]ot reciting all of the evidence does not mean the arbitrator failed to consider it.” The Supreme Court of Canada, in F.H. v. McDougall, 2008 SCC 53, stated that “[n]or are reasons inadequate because in hindsight, it may be possible to say

that the reasons were not as clear and comprehensive as they might have been.”

The Appellant submits that the Arbitrator erred in failing to apply the proper IRB entitlement test, the Arbitrator being “side-tracked” by assessing credibility.

Under section 5 of the 1996 Schedule, for the period up to and including 104 weeks of disability, IRBs are payable during the period the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualified for IRBs. In this case, the accident took place on January 18, 2009. The Appellant claims continuing disability ongoing from that date. 104 weeks of disability would end in January 2011.

The Appellant cites, in part, Cohoe v. Safeco Insurance Co. of America, [1993] O.J. No. 834 (Ont. Ct. Gen. Div.) and Cubello v. Guidolin, [2000] O.J. No. 1468, for the proposition that an accident victim’s post-accident return to work does not, by itself, determine whether he or she can perform the essential tasks of their employment. I agree.

I also agree with Reid J. in Foden v. Co-Operators Insurance Association (Guelph), 1978 CanLII 1622 (ON SC), as the Appellant submits:

No one, in my opinion, should be discouraged from attempting to take up their former work, or any work, out of fear that the attempt might be held against him. Far from necessarily proving that an insured has the capacity to perform his task it may, as in my opinion it does here, prove the reverse. There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.

The Appellant argues that the Arbitrator erred in addressing the issue of the quantum of the weekly IRB and then foreclosing the issue of IRB entitlement.

The Arbitrator states at page 11 of his decision that post-accident employment may not only speak to the amount of IRBs payable to the insured but also the insured person’s level of function and, thus, eligibility for IRBs. As noted, the Arbitrator was unable to determine the level of work to which the Appellant returned. The Arbitrator states that the Appellant admitted to working extensively after the accident of January 2009 but provided virtually no documentation to verify the details of his post-accident employment and income.

The IRB issue at the arbitration hearing, as both parties had agreed at the pre-hearing discussion two and a half years before, was whether the Appellant was entitled to receive IRBs “from July 8, 2009 onwards at the rate of $183 per week.”

The Arbitrator found that the Appellant’s post-accident 2009 income tax return did not fully report the Appellant’s income. There was evidence from the August 10, 2009 disability certificate of Dr. Badhwar, D.C., that the Appellant had returned to work in the summer of 2009 (IRBs are claimed from July 7, 2009). The Arbitrator found that the Appellant’s 2010 income tax return, even if taken at face value, reported income “virtually identical to his reported annual income at the time of the accident.”

The Arbitrator did note the Appellant’s argument that because it was reckless and unsafe for the Appellant to drive a truck after 2009 because of cognitive and psychological impairments, he should be found to meet the IRB entitlement test.

I agree with the proposition that an insured person may indeed meet a disability test if it is unsafe for that person to perform certain work as a result of injuries sustained in an accident. I do not agree that the income from such post-accident employment is not to be considered in determining the quantum of the weekly benefit payable. I am not persuaded the Arbitrator erred in law in finding the Appellant not entitled to payment of IRBs of $183 a week, or some lesser amount, for the 104-week period up to January 2011.

(4) Entitlement to Post-104 week IRBs

The Appellant submits that the Arbitrator erred in failing to apply the proper IRB test for post-104 week IRBs. He argues that while he may have been able to do some physical work, he met the complete inability IRB entitlement test on a cognitive basis.

Paragraph 5(2)(b) of the 1996 Schedule states that for any period longer than 104 weeks of disability, IRBs are payable if the insured person, as a result of the accident, is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

The Appellant cites Arbitrator Palmer, in Terry and Wawanesa Mutual Insurance Company, (FSCO A00–000017, July 12, 2001):

Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits (and an employer should be obliged to hire him for that job). As Arbitrator Sampliner pointed out in Lombardi, a literal reading of total disability clauses has been rejected in many previous cases and a literal reading of “complete inability” would mean an insured would have to be unable to perform any function of any job to qualify.

I agree. The Appellant also cites Arbitrator Killoran, in Carr and TD General Insurance Company, (FSCO A09-003154, July 23, 2010):

I echo the conclusion of the judge in Neumeyer v. Wawanesa Mutual Insurance Company [2005 CanLII 27522 (ON S.C.)] when I find that Mr. Carr’s disability must be viewed in the context of his competitiveness in the existing marketplace.

I agree. The Appellant further cites Arbitrator Richards, in McLeod and State Farm Mutual Automobile Insurance Company, (FSCO A10-000755, May 25, 2012):

… a job may be a suitable alternative if substantial upgrading or retraining is not required [Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479, p.11].A holistic approach is necessary in assessing employment suitability. It is not enough to identify the job tasks in artificial testing and then to put them together into a theorized ability to engage in employment. Engaging in employment means to actively participate in the work relationship over a reasonable period of time [Shubrook and Lombard General Insurance Company of Canada, (FSCO A03-000361, Nov. 26, 2004)].

I concur.

The Arbitrator dismissed the Appellant’s claim for the following reasons:

• The Appellant’s statements to health care professionals as to the extent of his work from January 18, 2013 varied greatly, driving his truck between 25 and 50 hours per week and six to twelve months each year. However, the Appellant provided no documentation concerning his income from 2011 to 2013 (the arbitration hearing being in September and October 2013). The Arbitrator was unable to determine whether the Appellant had sustained any loss of income and, therefore, unable to find the Appellant entitled to any IRBs during this period.

• While the Appellant noted his cognitive and emotional impairments regarding his driving a truck for extended periods, the test for IRBs after 104 weeks of disability is more stringent and is not necessarily tied to the work the insured was doing at the time of the accident.

• In his September 2, 2011 report, the Applicant’s own assessor, Dr. N. Dhaliwal, psychiatrist, concluded the Applicant “... can work on any job he is qualified for ... [and] does not have any major psychiatric issues to prevent him from doing his previous job.”

• At page five of his decision, the Arbitrator found that the Appellant came to Canada in 1997. He had a university-level education and spoke two languages in addition to, with some limitations, English. He worked from 1998 to 2004 in a factory, “where he was promoted to a position of some authority.” He was able to read and follow written instructions in English.

The Arbitrator found, at page 17 of his decision, that the Appellant possessed education, training and experience, in addition to driving smaller as well as larger vehicles and working with machinery, factory work including supervising others and doing quality control. He found that the Applicant had demonstrated sufficient functional ability, motivation and endurance to work at a job that would pay at least as much as his reported pre-accident income.

The Appellant argues, at paragraph 102 of his April 3, 2015 written submissions, that he has poor English skills, no transferable skills to obtain suitable alternative employment to a long-haul truck driver and that his physical restrictions include prolonged sitting.

However, as stated above, appeals from the order of an arbitrator are restricted to questions of law. I am not persuaded there was a complete absence of supporting evidence for the Arbitrator’s findings of fact. I am not persuaded the Arbitrator erred in law in finding that the Appellant had failed to prove his entitlement to weekly IRBs of $183 after 104 weeks of disability on the basis he suffered a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

(5) Sierra Tucson

Dr. Young’s September 24, 2012 Treatment and Assessment Plan (OCF-18) recommended an intensive 45-day residential, multidisciplinary neuro-rehabilitation at the Sierra Tucson facility in the United States to treat the Applicant’s traumatic brain injury and post-traumatic stress disorder, at a total estimated cost of US $56,600.

The Appellant cites Arbitrator Anschell, in Sidhu and State Farm Mutual Automobile Insurance Company, (FSCO A13-004231, December 15, 2014), who found a similar Sierra Tucson program reasonable and necessary, preferring Dr. Connell’s evidence over that of Dr. Walsh.

I am not persuaded that the factual findings of fact in Sidhu were somehow binding on the Arbitrator.

The Arbitrator accepted the opinion of Dr. Walsh, an IME psychiatrist, that before such proposed extensive treatment be undertaken it was crucial to obtain current, valid neuropsychological test results for the Appellant. The Arbitrator held that the Appellant could then submit a new treatment plan for such treatment considered reasonable and necessary.

The Respondent had approved, in October 2012, a new neuropsychological assessment by Dr. Young. The Appellant submits that Dr. Young’s neuropsychological assessment, prepared almost a year later on September 10, 2013, provided the testing the Arbitrator required.

In oral submissions, the parties advised that the Appellant had initiated a further arbitration application (FSCO A14-003045) regarding a Sierra Tucson treatment plan. The parties further advised that the arbitration hearing of that issue was scheduled to be heard July 21, 2015.

Nonetheless, the Appellant wishes me to (1) find that the Arbitrator erred in law in not ordering payment of this claim and (2) either rule that the initial treatment plan was reasonable and necessary and should be paid, or refer that treatment plan to a re-hearing. The reason for this requested re-hearing as opposed to the scheduled July 21, 2015 re-hearing is that the Appellant does not wish to lose the interest that would accrue from the initial plan.

The Appellant argues that the longer the delay in his treatment, the greater the harm to his condition. It is not presently clear how setting aside the July 21, 2015 hearing and ordering an arbitration hearing on this issue for some uncertain time in the future meets that concern.

As stated above, I do not find that the Arbitrator erred in law in declining to allow late service of Dr. Young’s report. Given the evidence of Dr. Walsh, I am not persuaded there was a complete absence of supporting evidence for the Arbitrator’s decision to allow the Sierra Tucson treatment plan to be resubmitted, as set out above, so as constitute an error of law.

I am not persuaded I have jurisdiction to take over an arbitrator’s role in determining whether the Sierra Tucson plan is reasonable and necessary. I am not persuaded to usurp the adjudicative role of the new hearing arbitrator, including determining pre-judgment interest. I dismiss this aspect of the appeal.

(6) Special Award

Subsection 282(10) of the Insurance Act provides:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Arbitrator dismissed the Appellant’s claim for a special award, providing his reasons at page 37 of his decision.

At paragraph 126 of his April 3, 2015 written submissions, the Appellant submits that based on the “facts a special award should be made to him for withholding treatment and the respondent’s failure to pay income replacement benefits.” The Appellant argued that the Arbitrator erred in failing to address the Respondent’s conduct, its duty of fairness to investigate his head injury that potentially made it dangerous for him to drive a commercial truck on highways, or to consider the Respondent’s “unfair, high-handed” conduct.

The Appellant, however, stated in oral submissions he was not appealing the Arbitrator’s denial of a special award. Accordingly, I am not addressing this issue.

III. APPEAL LEGAL EXPENSES

If the parties cannot agree on the legal expenses of this appeal amending Rule 79.1 of the Code, as allowed by Rule 81.1, an appeal expense hearing shall be requested, as the parties agreed, within sixty days of the date of this decision.

As stated at the oral appeal hearing, the request for an appeal expense hearing shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as submissions on such entitlement and/or quantum appeal expense issues as are in dispute.

August 13, 2015

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(FSCO P03-00043, June 20, 2005), application for judicial review dismissed, 2006 CanLII 7286 (ON SCDC), leave to appeal to the Court of Appeal refused (M33635, June 12th, 2006), leave to appeal to the Supreme Court of Canada refused (2007 CanLII 1144 (SCC).