Anthonidas Aloysius v. Royal & SunAlliance Insurance Company of Canada, 2015 ONFSCDRS 199

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 199

FSCO A12-003310

A12-003311

A13-005353

BETWEEN:

ANTHONIDAS ALOYSIUS

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY

OF CANADA

Insurer

Before: Stuart Mutch

Heard: October 20, 21, 22, 23, 28, 2014 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. David Wilson for Mr. Aloysius

Mr. Robert Franklin for Royal & SunAlliance Insurance Company

The Applicant, Anthonidas Aloysius was injured as the result of three motor vehicle accidents that took place on January 31, 2003, (“the 2003 accident”), December 10, 2005, (“the 2005 accident”) and May 8, 2006 (“the 2006 accident”). He applied for benefits from Royal and SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ Disputes arose as to Mr. Aloysius’ claims. The parties were unable to resolve their disputes through mediation, and Mr. Aloysius applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues

A. Procedural issues:

Royal alleges that it has a section 32 defense in regard to the following:

· the claim for housekeeping benefits post-104 weeks arising from the 2003 accident

· the claim for all housekeeping benefit claims arising from the 2006 accident.

· the claim for attendant care benefits arising from the 2003, 2005 and 2006 accidents

Royal alleges that it has a limitation defense in regard to the following:

· the claim for housekeeping benefits arising from the 2005 accident

· the claims for attendant care benefits arising from the 2003 and 2006 accidents.

B. Substantive Issues

Has Mr. Aloysius sustained a catastrophic impairment as the result of any one of the accidents referred to above?
Is Mr. Aloysius entitled to attendant care benefits at the rate of $481.60 per month from January 31, 2003 to date and ongoing, $527.65 per month from December 10, 2005, to date and ongoing and $571.30 per month from May 8, 2006, to date and ongoing?
Is Mr. Aloysius entitled to benefits for housekeeping and home maintenance from February 1, 2005 to date and ongoing? If not, is he entitled to same from the date of the second accident, December 10, 2005 to date and ongoing? If not is he entitled to same from the date of the third accident, May 8, 2006 to date and ongoing?
Is the treatment plan dated June 22, 2012 by Dr. T Hoff, in the amount of $1,852.00 reasonable and necessary?
Is Royal liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Aloysius?
Is Royal liable to pay Mr. Aloysius’s expenses in respect of the arbitration?
Is Mr. Aloysius liable to pay Royal expenses in respect of the arbitration?
Is Mr. Aloysius entitled to interest for the overdue payment of benefits?

Result:

The Applicant has sustained a catastrophic impairment as a result of the 2003 accident.
The Applicant is not entitled to Attendant Care Benefits.
The Applicant is entitled to housekeeping and home maintenance benefits from February 1, 2005 in the amounts claimed, to date and ongoing.
The Applicant is not entitled to a medical benefit in the amount of $1,852.00 as set out in the treatment plan of Dr. T. Hoff dated June 22, 2012.
The Applicant is not entitled to a Special Award.
If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.
Royal shall pay the Applicant interest on any outstanding amounts according to the terms of the Schedule.

EVIDENCE AND ANALYSIS

Procedural Issues

Housekeeping claims arising out of the 2003 accident

Section 32 of the Schedule, in force at the time of the 2003 accident, states that a person shall notify the insurer of his or her intention to apply for a benefit no later than the 30^th^ day after the circumstances arose that gave rise to entitlement to the benefit. Subsection 32(3) provides that a person shall submit an application for the benefit to the insurer within 30 days of receiving the application forms. Section 31 provides that failure to comply with the time limits set out in that part of the Schedule does not disentitle the person to a benefit if the person has a reasonable explanation.

Royal alleges that the applicant did not notify the insurer of his intention to apply for a housekeeping benefit until 10 years after the 2003 accident.

The documentary evidence does not bear this out.

I have been provided with a copy of an Application for Accident Benefits dated February 14, 2003² that was apparently completed in response to Royal’s letter to the Applicant dated February 5, 2003³, well within the time limits set out in section 32.

Even if section 32 is applicable to individual benefit claims, it is evident a claim for housekeeping was made sometime over the six week period following the completion of the Application for Accident Benefits. While I have no evidence of the submission of an Expense Claim Form, there is an OCF-9 dated April 3, 2003, denying housekeeping expenses and making reference to a Home Assessment report.⁴ The issue went on to be mediated on February 16, 2005.⁵The Report of Mediator describes the claim as being from December 21, 2003 to date and ongoing. There is no reference anywhere to a delay in making the claim, including the Response to Application for Arbitration, and in fact Royal paid two years of housekeeping expenses. The only issue is whether the Applicant is entitled to benefits beyond the two-year mark.

I find there to be no significant delay in making an application for housekeeping and home maintenance expenses with regard to the 2003 accident such as to prejudice Royal in their adjustment of this claim. The argument that the Applicant’s claim for housekeeping arising out of the 2003 accident is barred by section 32 has no merit.

Housekeeping Claims Arising Out of the 2006 Accident

The same issue is raised by Royal with regard to the housekeeping claims arising out of the 2006 accident. The Application for Accident Benefits was not completed until July 27, 2006. There is no reference to an Expense Claim Form. The first documentary evidence of a claim for housekeeping arising out of the 2006 accident is an Application for Mediation dated March 19, 2014.⁶ The application states that a claim for housekeeping expenses was submitted January 23, 2014 and that there has been “no response from insurer”.

Given that the Applicant was, by his own admission, doing no more than a nominal amount of housekeeping at the time of the 2006 accident, due to the injuries suffered in the 2003 and perhaps to some degree the 2005 accident, the procedural issues raised by counsel are perhaps moot. Nevertheless I will address them.

By the time of the 2006 accident, section 32 had been amended to require a person to notify an insurer of his or her intention to apply for a benefit no later than the seventh day after the circumstances arose that gave rise to entitlement to the benefit.

One would assume that the circumstances that gave rise to the entitlement to the benefit were essentially the accident itself. The Applicant did not make an Application for Accident Benefits until some 80 days after the accident. The earliest reference to an application for housekeeping benefit appears in the aforementioned Application for Mediation and names the date of March 29, 2014.

The Applicant’s counsel takes the position that the time limits in section 32 only allow an insurer to delay paying a benefit. They do not disentitle the insured to a benefit. He cites Hosein and Royal and SunAlliance Insurance Company of Canada⁷ in support of this. Royal argues that this case does not apply to this situation as Hosein does not deal with section 31, which states that a person’s failure to comply with a time limit in s. 32 does not disentitle the person to a benefit if the person had a reasonable explanation. I agree with Royal’s submission that the situation in Hosein is quite different. The arbitrator found that the insurer had been provided with sufficient information within one month of the accident to evaluate the claim.

Applicant’s counsel cited Harril and Pilot Insurance Company⁸ as support for the proposition that subsection 32(6) of the Schedule does not prescribe a sanction for late applications, it merely allows the insurer to delay making payment. In that case, the insurer was put on notice and in fact paid housekeeping benefits for about three months after the accident. The insured’s intention to claim beyond that period was not raised until the Application for Arbitration was filed some two years later. Nonetheless, the arbitrator found that Ms. Harril was not precluded from making that claim.

Counsel for the Applicant also cited Horvath and Allstate Insurance Company of Canada⁹ and Halliday and Certas Direct Insurance Company¹⁰ in support of the proposition that consumer protection principles should apply to notice provisions as well as to limitation periods. The arbitrators in both of those cases opined that insureds should be informed of the time limits set out in section 32 and the consequences of failure to abide by those time limits. I note that in the letter dated May 9, 2006 from Royal to the Applicant,¹¹enclosing an Accident Benefits Package, there is no specific mention of section 32 or the time limits set out therein. However there is the statement that “…we require the fully completed Accident Benefit Package before any payment can be made” [emphasis mine].

I am not so concerned by the delay in returning the completed Accident Benefit Package. It is evident from an OCF-9 dated June 6, 2006¹² that the Applicant had applied for a medical benefit and that Royal had some notice that the Applicant intended to pursue benefits arising out the 2006 accident. However there is no reasonable explanation for the fact that there appears to be a nearly eight year gap between the accident and the time the Applicant first applied for housekeeping and home maintenance benefits. The Applicant had been represented by counsel for this entire period. To my mind this is exactly the situation that s.32 is designed to prevent. I do not agree with Applicant’s counsel that s. 32 merely permits an insurer to delay payment, otherwise the reference to disentitlement in subsection 32(1) would be meaningless. The Applicant is barred from advancing a housekeeping claim arising out of the 2006 accident by operation of s.32.

CLAIMS FOR ATTENDANT CARE BENEFITS ARISING OUT OF THE 2003, 2005 AND 2006 ACCIDENTS

2003 Accident

The same facts and reasoning apply to this issue as to the housekeeping claim arising out of the 2003 accident. The aforementioned OCF-9, dated April 3, 2003¹³, states “As per the Insurer’s Examination, home assessment conducted by Herrold & Vernon, you are not substantially disabled from performing your pre-accident activities of daily living including your personal care. No attendant care assistance is required.” As stated earlier, one can deduce that the Applicant applied for these benefits, if not within 30 days, then very shortly after that deadline. Royal promptly assessed the Applicant’s Attendant Care needs. This is not an egregious breach of s.32. This claim does not fail because of non-compliance with s. 32.

2005 Accident

The first documented indication the Applicant applied for Attendant Care benefits as a result of the 2005 accident is contained in the OCF-9 dated March 18, 2014.¹⁴ The OCF-9 refers to a Form 1 dated June 18, 2013. Royal claims this is not the correct form and that nothing had been submitted within 30 days of the expense being incurred and no reasonable explanation for the delay was provided.

It is a flagrant violation of the terms and spirit of s.32 to make a claim for benefits nearly eight years after the accident, particularly when one is already familiar with the accident benefits scheme and is represented by counsel. The Applicant is barred from advancing an attendant care claim arising out of the 2005 accident by operation of s.32.

2006 Accident

There is no evidence of any claim for Attendant Care Benefits arising out of the 2006 accident before the Form 1 dated August 7, 2013.¹⁵ There is no explanation proffered as to the delay in making this claim. The Applicant is barred from advancing an attendant care claim arising out of the 2006 accident by operation of s.32.

LIMITATION DEFENSES

Royal alleges that it has limitation defenses in regard to the following:

· the claim for housekeeping benefits arising from the 2005 accident

· the claim for attendant care benefits arising out of the 2003 and 2006 accidents

Housekeeping Benefits – 2005 Accident

Royal claims it has a limitation defense with regard to the housekeeping claim arising out of the 2005 accident.

The documentary evidence indicates that the housekeeping claim was denied on March 10, 2006.¹⁶ The Application for Mediation appears to have been received March 11, 2011.¹⁷ Even if one relies on the date of the Application for Mediation, June 1, 2010, the Application is well outside of the limitation period.¹⁸ As well, the OCF-9 denying the claim sets out the right to dispute so as to comply with Smith v. Co-operators General Insurance Company.¹⁹ With regard to the housekeeping claim arising out of the 2005 accident, the Applicant has failed to comply with the limitation period set out in the Insurance Act and in the Schedule. This claim is denied.

Attendant Care Benefits – 2003 Accident

Royal alleges that it has a limitation defense to the Applicant’s claim for attendant care benefits arising out of the 2003 accident. Royal alleges that attendant care benefits were never claimed but were nonetheless denied on April 3, 2003 and that the Applicant did not dispute the denial within the two years as required by section 281.1 of the Insurance Act. Royal cites Sietzema v. Economical Insurance Company²⁰ for the proposition that even in the absence of a claim, a denial is sufficient to start the two year limitation period running. The cases of Katanic v. State Farm Mutual Automobile Insurance Company²¹ and Sagan v. Dominion of Canada General Insurance Co.²² were also cited in support of this argument.

Is a Claim Necessary for a Proper Denial?

The Applicant’s counsel takes the position that the aforementioned cases do not apply and that other cases clearly state that there must be a claim before there can be a proper denial. He cites the cases of Ross and TTC Insurance Company²³, Zeppieri and Royal Insurance Company of Canada²⁴, Adami and Wawanesa Mutual Insurance Company²⁵, and Mannarino and ING Insurance Company of Canada.²⁶ As well, Applicant’s counsel states that the proper procedure for denying the claim was not followed, specifically referral to a Designated Assessment Centre, that the reasons for the denial were not clear and unequivocal and therefore there is no denial and the limitation period does not start to run. Finally the Applicant’s counsel argues that the OCF-9 form denying attendant care benefits does not include the insured’s right to dispute the denial and therefore does not conform to the principles set out in Smith.

In Ross, Arbitrator Alves stated “I find that an insurer cannot gratuitously deny a claim which has not been submitted. I find no evidence that Ms. Ross claimed an amount which would cause the limitation period to begin to run. It would be invidious if the TTC were allowed to characterize it as a refusal which triggers the running of a limitation period”. She goes on to state that it is ‘implicit” in the two-step process outlined in Zeppieri “that there must first have been a claim which has crystallized, that is to say become definite, a claim which has been submitted, and properly denied”. This reasoning was cited with approval in Adami. It is noteworthy that these decisions pre-date the decisions cited by Royal’s counsel. They are FSCO decisions. The decisions cited by Royal are court decisions.

In each of Sietzema, Katanic and Sagan the respective courts found that a claim for a specific benefit was not necessary. All that is necessary is a clear and unequivocal denial of that benefit to start the limitation period running.

While the FSCO decisions before 2011 view a claim as a prerequisite to a valid denial that sets the limitation period running, the subsequent decisions of the courts take the opposite view. It appears that the state of law is that if the insurer has made a clear and unequivocal denial of a benefit, regardless of whether it has been claimed, the limitation period begins to run.

The issue now becomes whether Royal’s denial was clear and unequivocal. In all of the court decisions it appears that the denial of benefits was clear and unequivocal and the applicants in those cases received a complete description of the dispute resolution process.

Counsel for the Applicant argues that Royal has failed to provide proof that the OCF-9 denying attendant care benefits was actually delivered to the Applicant. I have no reason to think that it was not. As well, the wording of the denial is clear enough. However, what is equally important is the requirement set out in section 49 of the Schedule, that the claimant be provided with a written notice concerning the claimant’s right to dispute. In Smith, the Supreme Court of Canada emphasized the necessity of providing a complete description of the dispute resolution process as well as notification of the limitation period. With regard to the denial of Attendant Care Benefits for the 2003 accident, I have no evidence that Royal provided the Applicant with any information regarding the right to dispute the denial or the limitation period applicable to that right. I therefore find that there was no proper denial of these benefits, the limitation period did not begin to run, and the Applicant was within his rights to mediate and arbitrate this issue.

Royal also claims that the Form 1 submitted in support of the Applicant’s claim for Attendant Care benefits is not the proper form. I will address this issue later in this decision.

Attendant Care Benefits – 2006 Accident

As explained earlier, the Applicant is precluded from advancing this claim because of failure to comply with s. 32. There is no need for me to consider the argument that this claim is outside the limitation period.

Conclusion Regarding Procedural Issues Raised

The attendant care and housekeeping claims arising out of the 2005 and 2006 accidents are denied either because of failure to comply with section 32 or with the limitation periods. The only issues to be determined are those arising from the 2003 accident: the attendant care benefits and housekeeping claim post 104 weeks. As no housekeeping is payable post-104 weeks unless the insured is catastrophically impaired, I must determine whether the insured falls into that category.

The Question of Catastrophic (“CAT”) Impairment

The Applicant claims to suffer a catastrophic impairment and therefore is entitled to housekeeping and attendant care benefits beyond the two year mark. He has rooted his claim in subsection (g) of section 1.1 of the Schedule.

The definition of catastrophic impairment applicable to the 2003 accident is contained in section 2(1.1)(g) of the Schedule. The definition was amended in October 2003, but subsection (g) remains unchanged.

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(3) For the purpose of clauses (1.1) (f) and (g) and (1.2) (f) and (g), an impairment that is sustained by an insured person but is not listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.

The American Medical Association’s Guidelines to the Evaluation of Permanent Impairment (the “Guides”) are designed to aid in estimating the degree of impairment in a person’s function. The Guides define a moderate impairment as “compatible with some but not all useful functioning” and a marked impairment as “a level of impairment that significantly impedes useful functioning”.²⁷

It has been well-established by Pastore²⁸that an insured person need only to demonstrate a marked impairment in one of the domains of function set out in the Guides::

· Activities of daily living

· Social Functioning

· Concentration, Persistence and Pace

· Deterioration or decompensation in work or work-like settings (Sometimes referred to as Adaptability)

Because the last domain is at issue in this arbitration I will quote directly from the Guides:

Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is decompensate and have difficulty maintaining activities of daily living, continuing social relationship and completing tasks.

The evidence relating to the question of CAT impairment can be broken down into four categories:

The reports of Dr. Rosenblat
The report(s) of Dr. Shapiro
The reports of other medical experts.
The viva voce and documentary evidence provided by the Applicant and his wife.

Procedural Issues Regarding the Claim that the Applicant is Catastrophically Impaired

The Applicant’s counsel has raised the argument that Royal never properly denied the Applicant’s claim that he was catastrophically impaired as a result of the 2005 and 2006 accidents. As the claims from those accidents have been denied on procedural grounds, there is no need for me to consider whether there is any merit to this argument.

No Cross-Examination of Experts

No medical experts were called to give evidence at the hearing. Royal notes in its submissions that the Applicant’s counsel indicated he would be calling multiple experts but then later in the hearing process indicated that he would not. I do not agree with Royal’s argument that I may draw an adverse inference from the Applicant’s counsel’s failure to call expert witnesses. The excerpt from The Law of Evidence in Canada²⁹ quoted by Royal refers to “a material witness over whom he or she has exclusive control” (italics mine). There is no property in a witness, at least not in the arbitral process. Where the Applicant relied on an expert’s report, it was open to counsel for Royal to request an adjournment so that this expert could be made available for cross-examination. The parties are essentially on an even footing in that none of the opinions set out in the reports entered into evidence were tested under cross-examination. I am left to judge the reports on their thoroughness and the soundness of the evidence and the persuasiveness of the arguments made in reaching their respective conclusions.

Causation

Royal claims that a catastrophic impairment must be the result of one particular accident and not a combination of any of number of accidents. As I have found that the Applicant is barred from the benefits claimed that arise out of the 2005 and 2006 accidents, I need only consider whether the Applicant is catastrophically impaired as a result of the 2003 accident. In its submissions, Royal concedes that the CAT claim arising out of the 2003 accident was properly applied for.

Royal argues that the Applicant had significant health problems prior to the 2003 accident. It is undisputed that the Applicant was in two previous car accidents, in 1996 and 1999. In its submissions, Royal also mentions a third accident, in 1997. According to Dr. Virey’s report he complained of overall body pain from the 1996 accident but recovered fully. According to Royal, the Applicant underwent diagnostic imaging after the 1996 and 1997 accidents, and consulted an orthopaedic surgeon regarding ankle problems after the 1999 accident. In the 1999 accident he suffered pain but recovered after about a month of physiotherapy and returned to work after about six or seven weeks.

Royal also alleges that the Applicant had previous mental health issues. It cites an entry in November 1999 in the decoded OHIP summary that notes the Applicant had “anxiety neurosis, hysteria, neuroasthenia, obsessive compulsive neurosis”. It notes that the Applicant was prescribed Imovane in the year prior to the 2003 accident and that Dr. Marguilies felt the Applicant was an unreliable historian whose claims to good mental health prior to the accident may be called into question.³⁰

The Schedule is concerned with the degree of a person’s impairment as related to a motor vehicle accident(s).With the exception of an approximately six week period following the 1999 accident, although he may have had medical issues, there is no evidence that the Applicant was significantly impaired in his work, family or social functioning prior to the 2003 accident. For whatever reason, the 2003 accident resulted in a rapid decline in the Applicant’s functionality. The question is whether this decline amounts to a catastrophic impairment.

EVIDENCE AND ANALYSIS

Substantive Issues

The Applicant’s Evidence

The Applicant is 47 years of age, married and has three children of the marriage, presently aged 18, 15 and 13. At the time of the accidents the Applicant resided in a three bedroom, two-storey house in Mississauga. At the time of the first accident he was employed as an assistant machine press operator at Indalex Aluminium Solutions in Mississauga since 1994. He testified that he enjoyed his work and this is reflected in the reports of several of his treatment providers.

The Applicant worked shift work. He testified that he worked a four week cycle: mornings, 7 a.m. to 3 p.m., afternoons, 3 p.m. to 11 p.m., nights 11 p.m. to 7 a.m. and then a week off. The Applicant’s testimony regarding his overtime hours was confusing. He was consistent that he would work overtime on a regular basis. From what I could gather on Fridays and Saturdays he would sometimes work 12-hour shifts and that he would sometimes pick up shifts on his week off. I think it is fair to state that the Applicant rarely worked less than 50 hours per week on average.

The Applicant testified that before the 2003 accident he had no difficulties getting along with his wife, children, relatives, friends or co-workers, he had no issues around his ability to work or mental health issues. His wife’s testimony corroborated his testimony.

The accident of concern in this hearing occurred on January 31, 2003. The Applicant was driving. His sister-in-law was a front seat passenger. The Applicant was slowing to make a left- hand turn. The driver behind him decided to pass him on the driver’s side of the car and hit him on the driver’s side. The Applicant described the collision as “heavy”. He stated that he felt scared and panicky and that he had injuries to his neck, shoulder and jaw. He stated that his pain became worse in the days after the accident, that he developed pain in the left lower back, headaches and disturbed sleep. The Applicant testified that from the 2003 accident to the 2005 accident his pain was always present. The Applicant testified that he began to feel sad all the time and anxious. He became irritable and would lose his temper. He admitted to damaging drywall with his fist and damaging garbage cans. He became depressed, lethargic and unmotivated. He developed memory problems. He avoided both friends and members of his extended family. He stated that he is irritable and would argue with his friends for no reason and so they have stopped calling him and he has stopped calling them. His wife corroborated his testimony, stating that he was confrontational with others and that he had no interest in socializing both with friends and members of the extended family.

The Applicant also stated that he felt evil was “ruling” him and that he suffered from auditory and visual hallucinations, as well as suicidal thoughts. He stated that his auditory hallucinations began after the 2005 accident. The July 27, 2004 report of Dr. Virey contradicts this. He states “[the Applicant] has had the auditory hallucination (sic) now for about the past three or four months”.³¹ Dr. Virey also notes that he denied having visual hallucinations.

He also testified as to his forgetfulness, missing medical appointments and failing to complete household tasks.

He was referred to Dr. Bautz, a psychologist. In early 2004, he was referred to a Dr. Virey who has been his attending psychiatrist ever since.

The Applicant testified that he could not return to work after the 2003 accident because he could not manage his job physically or mentally. He stated that he was required to make decisions in the course of his job and that he can no longer do that. He indicated that serious injury could result if he was inattentive at work.

Despite this he told Dr. Hoffman he made two attempts to return to work.³² Dr. Virey noted that he was a very motivated individual who would like to return to work.

Medical Evidence

Drs. Rosenblat and Shapiro are the only two physicians who were asked to address the issue of CAT impairment. Dr. Virey and Dr. Hoff also rendered opinions as to the Applicant’s CAT status, which I will discuss later. The reports of Drs. Rosenblat and Shapiro were completed in 2009, (although Dr. Rosenblat completed his assessment in 2007) after the occurrence of all three accidents. Because I have decided that the claims arising out of the 2005 and 2006 accidents are barred for procedural reasons I am concerned only with the impact of the 2003 accident and whether the Applicant was catastrophically impaired as of February 1, 2005, the date from which he claims housekeeping and home maintenance benefits. Royal admits in its submissions that “the vast majority of his symptoms were present after the first accident” and “other assessors agree that the second and third accidents were not particularly significant in terms of his overall condition”. While the reports of Drs. Rosenblat and Shapiro, because of their focus on CAT impairment, carry considerable weight, I will also closely consider medical evidence regarding the Applicant’s impairment in the period between the 2003 accident and February 1, 2005.

In their conclusions, Drs. Rosenblat and Shapiro differ only in the degree of impairment the Applicant has in the Adaptability domain. For the reasons that follow, I believe that as the result of the 2003 accident the Applicant is markedly impaired in that domain.

Dr. Rosenblat

In his report of May 13, 2009,³³ Dr. Rosenblat judged the Applicant to be catastrophically impaired on the basis that the Applicant had a marked impairment (Class IV) in the domain of work adaptation.³⁴

Dr. Rosenblat reviewed other medical documentation, relating to the Applicant, including reports from Drs. Bautz, Virey and Ozersky relating to his psychological state. He found the Applicant to be severely depressed based on testing, what the Applicant told him, and his observations of the Applicant. He found the Applicant to be suffering from a major depressive episode with psychotic features of chronic severe intensity, posttraumatic stress disorder and a pain disorder, aspects of which were linked to the accident and aspects of which were not. Dr. Rosenblat felt that the 2003 accident was the greatest contributor to the Applicant’s catastrophic status, with the subsequent accidents making a lesser, but material contribution to the development of that status.

Dr. Rosenblat’s finding of a catastrophic impairment rests solely on the finding that the Applicant is markedly impaired with regard to adaptability. This domain is concerned with the Applicant’s ability to adapt to stressful circumstances. Individuals may cope by withdrawing from a situation and may have exacerbated signs and symptoms of a mental disorder. They may have difficulty completing activities of daily living and continuing social relations.

Dr. Rosenblat based his finding on the Applicant’s:

· Very low activity level with virtually no productive activity on a daily basis;

· Withdrawal from dealing with simple circumstances such as being with his children;

· Description of pain levels that significantly affected his ability to work; and

· Leaving stressful day-to-day situations for his wife to manage.

He confirmed that finding in his supplementary report in 2014.

Dr. Shapiro (MDAC)

The Applicant was evaluated by the Multi-Disciplinary Assessment Centre (MDAC) in November and December 2009. The consensus report of the multi-disciplinary team found that the Applicant had a physical impairment score of 7% and a traumatic mental and behavioral impairment score of 16%. With regard to definition (g), the Applicant was found to have a class 2 to 3 (mild to moderate) mental and behavioural impairment in all four domains and thus did not meet the threshold for CAT.

Dr. Shapiro reviewed the Applicant’s medical documentation including reports from Drs. Virey, Ozersky and Bautz.³⁵

In my view, several of his observations are at odds with the rest of the evidence.

In Dr. Shapiro’s opinion, the Applicant’s severe depression with psychotic symptoms is an atypical outcome of what he describes as a “rather benign and uncomplicated motor vehicle collision”. He notes that the Applicant has never been admitted to hospital, continues to operate a vehicle and was never referred to day treatment. In fact, the Applicant attended a four-week day program from March 27 to April 21, 2006 at the Chronic Pain Management Unit at Chedoke Hospital in Hamilton. According to the discharge report he had no absences.³⁶

Dr. Shapiro described the Applicant’s demeanor as subdued, even somber but he did not note any unusual or impulsive behaviour, nor did he note any restlessness or agitation on the Applicant’s part. He noted no signs of formal thought disorder.

Dr. Shapiro found the Applicant’s psychotic symptomatology inauthentic. He noted it is highly atypical for psychotic symptomatology associated with depressive illness to remain unchanged despite pharmacological intervention. At the same time, he seems to view the Applicant’s psychotic symptomatology as real in that he finds its origins are more likely due to biological/ familial and genetic background than to a motor vehicle accident.

Atypical is not the same as impossible. It simply means unusual. Unexpected outcomes are no less real than expected ones.

In the summary of his report, Dr. Shapiro indicates that the Applicant “Retains the ability to communicate effectively, maintains a meaningful relationship with his family…visiting relatives”. This directly contradicts the evidence of the Applicant, his wife and the reports of other treatment providers and assessors that consistently portray the Applicant as being socially avoidant, both with his own children and with relatives. The Applicant and his wife testified that he had friends and enjoyed socializing prior to the 2003 accident. After the accident Dr. Virey noted that the Applicant was unable to interact appropriately with others in social and work situations. He states “underlying hatred, anger and hostility, lack of motivation, loss of interest, poor concentration, easy fatigability and psychotic experiences do not enable him to interact appropriately with others”.³⁷ The Applicant himself testified that after the accident he was more irritable and that he tried “to keep a distance” from his children. He would go to the basement when he felt angry, which he stated happened two or three times per day.

In the domain of Adaptability, Dr. Shapiro notes that the Applicant attends all facets of his rehabilitation, including various appointments and that he follows his physician’s recommendations. He attended a trial to dispute a charge. This, in Dr. Shapiro’s view, is sufficient to indicate only a mild to moderate impairment.

In fact, this domain speaks to the ability to adapt to stressful circumstances. Attending to routine treatment can hardly be described as stressful. There appeared to be no enquiry as to whether the Applicant attended his appointments unescorted. The “trial” described by Dr. Shapiro never took place; the Crown’s witness did not appear. This is a one-off. It is not the same as attending and performing in the work place day after day, week after week, month after month.

Royal also questions Dr. Rosenblat’s diagnosis of PTSD. This is based on Dr. Shapiro’s characterization of the 2003 accident as “benign and uncomplicated”. It did not seem that way to the Applicant. In his testimony he described the 2003 collision as “heavy”. He testified that he had a headache, that he panicked and was very scared. He said ‘It’s like a nightmare, I don’t like to remember, I feel very bad”. He evidently told a similar narrative to Dr. Rosenblat, as Dr. Rosenblat reports: “from a physical point of view immediately after the accident, he could not move or speak. He recalls his heart beating quickly. He experienced a headache, upper and lower back pain as well as left shoulder pain. Emotionally he felt afraid, helpless and horrified. He was not afraid to die in this accident…”³⁸

Counsel for Royal misstates the diagnostic criteria when he asserts that the traumatic event must include a threat of death or serious injury. The manual merely speaks of “a threat to the physical integrity of self or others”. The Applicant, in his testimony and in his reporting to treatment providers, consistently portrays the accident as traumatic.

The Applicant may well have over-reacted. Nonetheless he experienced the accident as a threat to his physical integrity. I am therefore not inclined to question Dr. Rosenblat’s and Dr. Virey’s diagnosis of PTSD.

The Applicant’s counsel argues that Dr. Shapiro has no prior experience conducting CAT assessments, that Dr. Rosenblat’s reports were longer and that the documentation available to Dr. Rosenblat was more extensive, that Dr. Shapiro’s report was less detailed, he appeared to disregard the reports of other experts and he failed to ask probing questions and these are additional reasons why Dr. Rosenblat’s report should be preferred over Dr. Shapiro’s.

It is true that Dr. Shapiro’s curriculum vitae (“CV”) makes no mention of conducting CAT assessments. However his CV shows a history, beginning in 1985, of performing psychiatric assessments. Royal’s counsel asked me to draw the inference that he must have “encountered” catastrophic impairment assessments. In the absence of hard evidence, I cannot do that.

I am not so concerned with the alleged lack of qualifications on Dr. Shapiro’s part, or the length of his report. The difficulty I have with Dr. Shapiro’s report is that the conclusions reached are based on beliefs that are at odds with much of the evidence.

I agree with the Applicant’s counsel’s submission that Dr. Shapiro did a less than thorough assessment of the Applicant. Applicant’s counsel took issue with Dr. Shapiro’s statement in his Rebuttal Report that major psychiatric illnesses are rooted in biological/familial and genetic background and are not caused by uncomplicated collisions. No evidence was presented that this is in fact the case. There is one reference in the OHIP summary to “anxiety neurosis, hysteria, neuroasthenia, obsessive compulsive neurosis”. This is a category used in OHIP billing that is understandably wide in scope. No detail is provided, nor is there any evidence of any psychiatric problems of a permanent or significant nature, prior to the 2003 accident.

For whatever reason, the 2003 accident sent the Applicant into a downward spiral in terms of his functionality. In my view, Dr. Shapiro has used the wrong criteria in assessing the Applicant’s degree of impairment with regard to the adaptation domain. I therefore give less weight to his opinion than I do Dr. Rosenblat’s.

OTHER MEDICAL OPINIONS

Because the CAT opinions were rendered after all three accidents, it is important to look at the medical opinions rendered after the 2003 but before the 2005 accident in order to assess the impact of the first accident. Drs. Hunt and Virey, treating physicians, and Drs. Ozersky and Bautz, assessors, produced reports documenting the Applicant’s psychological status over this period. Only Dr. Ozersky thought that the Applicant was malingering.

In the period between the 2003 and 2005 accidents, Drs. Virey, Bautz, Hunt found the Applicant to be suffering from Major Depression. In one of her reports, Dr. Hunt used the term “severe”.³⁹Dr. Ozersky felt the Applicant was depressed but declined to use the word major. Both Drs. Virey and Hunt felt the Applicant suffered from pain and mood disorder and Dr. Ozersky noted that the Applicant suffered from anxiety.

Dr. Hoff, a psychologist who began treating the Applicant in 2006, found him to be suffering from major depression. Like Dr. Virey, he found the Applicant to be suffering from PTSD, a pain disorder and a mood disorder.

Dr. Hunt – Family Physician

Dr. Hunt saw the Applicant approximately three times per month over the period of May 2003 to August 2004.⁴⁰ She was in a good position to observe the development of and consistency of his symptoms over this period. Dr. Hunt describes continual complaints of pain, psychological stress including depression, guilt, sadness and anger and the inability to sleep, memory problems, inability to concentrate, and apathy. She prescribed a variety of coping strategies and medication. On January 21, 2005 she produced a Disability Certificate indicating the Applicant suffered from a mood disorder with major depression, chronic pain, PTSD and panic disorder.

In a report dated May 5, 2003⁴¹ Dr. Hunt indicated that the Applicant wanted to return to work, but that his recovery had “plateaued”. She described him as a very motivated individual who does not want to stay home. On several occasions the Applicant expressed the desire to return to work on a light duty or part-time basis, or stated that he had made tentative plans to return to work. On December 18, 2003, Dr. Hunt reported that “According to the patient, the employer would not give him modified light duties”.⁴²

Dr. Virey

Dr. Virey, psychiatrist, has been treating the Applicant since July 2004 and completed a series of reports in 2004 and 2005.⁴³

In October 2004 he diagnosed the Applicant with PTSD, pain disorder and mood disorder with major depressive episode-like features. In December 2005⁴⁴ (just prior to the second accident) Dr. Virey confirmed the diagnosis of mood disorder with major depressive episode-like features and added “Psychotic Features” to his diagnosis. He noted that the Applicant suffered from auditory hallucinations in July 2004. He noted that the Applicant was unable to interact appropriately with others in social and work situations. This is consistent with the evidence given by the Applicant and his wife.

In his final assessment report dated July 28, 2014,⁴⁵ Dr. Virey found the Applicant to have marked impairment in two domains, both concentration, persistence and pace and adaptation. He finds the Applicant to be catastrophically impaired.

Dr. Ozersky, Psychiatrist

Dr. Ozersky examined the Applicant on September 30, 2004.⁴⁶ Dr. Ozersky diagnosed the Applicant as suffering from an adjustment disorder with depression and anxiety. He estimated the Applicant had a GAF of 60 to 75. He ruled out major depression and found no significant psychological impairment. He states that the Applicant “denies any psychotic symptoms”.

Dr. Ozersky found the Applicant’s results on the Rey test indicated that he was “consciously attempting to fake bad memory”. He describes the results of Personality Assessment Inventory (administered by Dr. Bautz) as “invalid” although it is not clear exactly how he comes to that conclusion. In his opinion, the Applicant’s depression flows “from the financial and occupational difficulties he had as a result of not being able to return to work even though he wanted to, to a more sedentary job”.

Dr. Rosenblat questioned Dr. Ozersky’s finding that the Applicant was consciously magnifying his symptoms, based on the Applicant’s low score on the Rey test. Dr. Rosenblat thinks that the Rey test alone is insufficient to reach this conclusion. Dr. Rosenblat found no clear evidence of malingering and symptom magnification.

Dr. Bautz, Psychologist

Dr. Bautz assessed the Applicant on August 5, 2003.⁴⁷ He found the Applicant to be suffering from a Major Depressive episode. He linked the Applicant’s depression to his inability to work and provide for his family: “His unfamiliarity with physical compromise and his inability to return to work coupled with chronic pain he does not understand and cannot resolve have overloaded his capacity to cope and precipitated a major depression”. Dr. Bautz goes on to state: “While his response style on the psychometric measures is extremely negative, Mr. Aloysius appears to be crying for help rather than malingering”.

I agree with both Dr. Rosenblat and Dr. Bautz with regard to malingering. I don’t believe the Applicant, or for that matter most people, would have a capacity to manufacture his symptomatology in such a consistent way before so many medical professionals, for example Dr. Hunt, whom he consulted three times per month for sixteen months.

MEDICAL OPINION POST 2005

Dr. Hoff

Dr. Hoff, psychologist, started treating the Applicant in February 2006. In his report of June 7, 2010,⁴⁸ Dr. Hoff opines that the impairments of Mr. Aloysius are marked “especially” in the area of adaptation to work or work-like settings. He thinks that the opinion of Dr. Shapiro is flawed in that Dr. Shapiro concludes that the Guides separate the matter of pain from mental and physical impairments. He believes that Dr. Shapiro has underestimated the severity of the Applicant’s psychological problems in finding that the Applicant suffers from an adjustment disorder.

Dr. Hoff opines that the Applicant’s personality is a contributing factor but he states that this does not negate that the Applicant suffered serious and prolonged psychological impairments due to the motor vehicle accidents. He states “If not for this first accident, Mr. Aloysius would still be working and leading a normal life”. ⁴⁹

Royal discounts Drs. Hoff and Virey’s opinions regarding catastrophic impairment. I agree that they are treatment providers and were not specifically engaged to conduct a CAT assessment and that they have an obligation to advocate on behalf of their patient. They do not bring the same degree of objectivity to the task that would be expected of Drs. Rosenblat and Shapiro. However both observed the Applicant over a long period of time. Dr. Virey saw the Applicant over a period of ten years. Dr. Hoff had been seeing the Applicant on a bi-weekly basis for almost four years. Both are in a very good position to assess the Applicant’s psychological impairment and the consistency of his complaints and behaviour which goes to the Applicant’s credibility. While I give their opinions regarding the Applicant’s CAT status less weight than those of Drs. Rosenblat and Shapiro, I do not entirely disregard their opinions.

CONCLUSION REGARDING CAT

Until the 2003 accident the Applicant, since 1994, had worked a physically demanding job. With the exception of six or seven weeks off following a car accident in 1999, he has had a steady work history. The Applicant testified that he liked his job, this is evidenced by his putting in overtime, which included working twelve-hour shifts. I believe he took justifiable pride in providing for his family. The physical injuries suffered in the 2003 car accident initially prevented him from returning to work. There is an indication in the November 10, 2003 report from Dr. Hunt that he was actually discouraged from returning to work until his shoulder was completely healed. The bulk of the evidence, including the opinions of Drs. Ozersky and Bautz indicates that when the Applicant could not return to work and support his family, he became frustrated and depressed. He began experiencing some symptoms of psychosis and became increasingly helpless and dysfunctional. His inability to return to his job and his subsequent mental disorder are directly related to the 2003 accident.

As stated earlier, I prefer the opinion of Dr. Rosenblat over that of Dr. Shapiro. Dr. Shapiro was under the impression that the Applicant had a good relationship with family members, and was capable of managing his financial affairs. The majority of the evidence suggests otherwise. The Applicant’s wife testified that “I do not talk to him that much…he doesn’t tell me things”. The Applicant’s financial activities are confined to depositing his income replacement benefit cheques, and using an automated teller machine from time to time.

I accept the opinions of Drs. Rosenblat, Virey and Hoff that the Applicant had a marked impairment in the adaptability domain. The Applicant went from someone who was working more than full-time hours and participating in an active family life, including housekeeping and home maintenance tasks, to someone who can manage only simple household chores, and then on an inconsistent and incomplete basis. His relationships the family members are severely compromised and he has been unable to maintain friendships he had before the accident. The Applicant did not have the education background or the mental resources to retrain for less physically demanding work and to discover or create a different working life for himself. In other words, he could not adapt to the stressful situation created by the physical limitations that were the result of the 2003 accident. In the period between the 2003 and 2005 accidents he withdrew from work and social situations, experienced exacerbation of signs and symptoms of a mental disorder and could not initiate or complete many activities of daily living in a consistent way. He was and is significantly impeded in useful function. This is indicative of a marked, as imposed to a moderate impairment.

On that basis, I find the Applicant to be catastrophically impaired.

Claims for Specific Benefits

Attendant Care

The Schedule provides that the insurer shall pay to a person who suffers an impairment as a result of an accident, all reasonable and necessary expenses for services provided by an aide or attendant. No attendant care benefit is payable for expenses incurred more than 104 weeks after the accident unless the person has sustained a catastrophic impairment.

The Applicant’s claims for Attendant Care flowing from the 2005 and 2006 accidents are barred for failure to comply with s. 32. Therefore the only attendant care claim I need consider is the one flowing from the 2003 accident.

The Applicant relies on the Form 1 of Natalie Zaraska dated June 18, 2013⁵⁰ that assesses his attendant care needs as two hours per day at a cost of $481.60 per month.

In Ms. Zaraska’s opinion, the Applicant required one hour of attendant care per day on the basis that he required “occasional monitoring and supervision for very low mood”. He required a further hour for the “preparation of more complex and healthier meals”.

Royal had conducted an in-home assessment on March 17, 2003, approximately six weeks after the first accident.⁵¹ The assessor, Maria Paulsson, determined that assistance with attendant care was not warranted. On March 18, 2014⁵² Royal rejected the Applicant’s Form 1s on the basis that it was not the approved form and that it had not been submitted within 30 days of the expenses being incurred. Section 39(3) of the Schedule states that an insurer may, but is not required to pay an expense incurred before an assessment of attendant care needs is submitted.

The Applicant’s tardy submission of the Form 1 is not necessarily fatal to his claim for Attendant Care Benefits.⁵³ However, a delay of some eleven years after the accident is unreasonable and unjustified. For the reasons that follow, I find that any attendant care expenses incurred by the Applicant are neither reasonable nor necessary.

There is no evidence that the Applicant required supervision because of his mental distress. It is evident from his testimony and his wife’s testimony that he was left alone for considerable periods of time while his wife was at work and his children were in school. His wife testified that this did not create any problems.

Likewise I am not persuaded that the Applicant required some kind of supervision to make more healthy and nutritious meals. The Applicant’s evidence was that after the 2003 accident he was only capable of making very simple snacks for himself. In my view, no amount of supervision or support would induce the Applicant to make more complex meals for himself and perhaps his family. The evidence is that the cooking the Applicant did before the accident was taken over by his wife and others. In any case, this task more properly falls under housekeeping rather than attendant care.

The Applicant’s claims for Attendant Care benefits are dismissed.

Housekeeping and Home Maintenance Benefits

Section 22 of the Schedule provides that the insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of the insured person for housekeeping and home maintenance services if the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

The Applicant was paid housekeeping benefits to January 31, 2005 in relation to the first accident. In order to be eligible benefits beyond the two year mark he must demonstrate that he has sustained a catastrophic impairment in the 2003 accident. Having found that he has, the question becomes what expenses the Applicant incurred and whether the expenses were reasonable and necessary.

An expense need not actually be incurred in the ordinary sense of the term in order to be payable.

I accept Applicant’s counsel’s argument that an insured need not establish that he or she has actually paid for the services in order to meet the requirement that the expense be “incurred”. It is sufficient that the reasonableness and necessity of the service be established and that the amount of the expenditure can be established with certainty.⁵⁴

Reasonable and necessary?

The test for entitlement to housekeeping and home maintenance benefits is set out in the Applicant’s submission and I accept it as correct:

…the test under Section 22, involves a consideration of the housekeeping and home maintenance services the insured normally performed before the accident and then a consideration of whether the insured suffered a substantial inability to perform those services as a result of an impairment suffered in the motor vehicle accident. This involves a comparison of what the insured did before the accident and what he could do after the accident and whether the difference amounts to a substantial inability. If it does…the next question is whether the expenses the insured incurred as a result of that inability are reasonable and necessary.⁵⁵

The Applicant testified that prior to the 2003 accident he shared housekeeping tasks “50/50” with his wife. He performed the following housekeeping and home maintenance activities:

· Assisting his wife with the cooking of Tamil style meals by chopping meat, fish, and vegetables. He testified that when they cooked Tamil style food, the preparation of a meal could take two to three hours. He was somewhat inconsistent with regard to how often Tamil meals were cooked, at one point he said three to four times per week, on cross-examination he stated five to ten times per month. He indicated that when he was working afternoon shifts he would sometimes make lunch

· cooking on his own approximately twice a week, making western style food

· helping to clean up after meals, two to three times per week for one hour. His wife corroborated this.

· Laundry at least once a week, taking one and one-half to two hours

· Sweeping of the kitchen, mopping the hallway and kitchen tile, mopping and sweeping the basement, cleaning the bathrooms once per week and doing vacuuming, laundry and grocery shopping. taking out the garbage for collection

· repaired faucets, redid the patio stones in the backyard, built shelves in the garage, repainted the entire interior of the house and made repairs as needed. He cut the lawn and removed snow, according to the season.

· At one point in his testimony the Applicant claimed that he cleaned the inside windows of the house once or twice per week. I find this not to be credible. Given that on cross-examination he stated that this was done every two weeks or so, this may have been a simple error on the part of the Applicant.

The Applicant’s counsel submits that the Applicant performed no less than 8 to 10 hours of housekeeping weekly, with an additional 5 to 7 hours for cooking. Royal notes that there are inconsistencies in the Applicant’s testimony and between his testimony and his wife’s testimony. Royal takes the position that the Applicant’s testimony and his wife’s testimony is unreliable and the amount of housework he did prior to the accident is exaggerated.

Housekeeping Performed After the 2003 Accident

The Applicant’s wife testified that after the 2003 accident she took over most of the housekeeping tasks previously performed by the Applicant. Her testimony on the amount of hours varied. Initially she estimated five to six hours per week. This later changed to two hours per day. Under cross-examination she estimated somewhere between six to fourteen hours per week. In a document signed in 2004 she stated she did fifteen hours per week.⁵⁶ She testified that a relative, Lilymalar Pushparatnam, also helped with laundry and cleaning. She testified that at the present time, she and the children do most of the housekeeping.

There is evidence that the Applicant was not completely disabled from housekeeping duties. Initially he testified that he could not return to housekeeping activities because of his pain and lack of energy and that he only provided assistance to this wife “a couple of times”. Later he testified that before December 2005 he could do light cleaning two or three times per week.

At a Functional Abilities Evaluation (“FAE”) performed in October 2003, the Applicant reported that he performed light cooking, laundry and cleaning chores.⁵⁷ An FAE completed in October 2004 noted that the Applicant possessed “adequate strength, muscular endurance, flexibility, postural tolerance, and motor dexterity to perform his pre-accident activities of daily living including housekeeping and home maintenance utilizing pacing”.⁵⁸

His wife testified that he would only do housekeeping when asked and that he wouldn’t always finish the job. An Activities of Normal Life form (an OCF-12)⁵⁹ completed by the Applicant in July 2006 shows that, prior to the 2006 accident, the Applicant could partially do sweeping, dusting and meal preparation and could do cooking, washing dishes, vacuuming, bed-making, bathroom cleaning, oven and refrigerator cleaning, laundry, garbage removal and snow shoveling with help. This contradicts the Applicant’s testimony that he had not done laundry since the accident.

Taking into consideration all of the evidence, I am satisfied that the Applicant was doing some housekeeping and home maintenance tasks prior to the 2003 accident. Counsel for Royal has suggested that since the Applicant was working 60 hours per week, he could not have done what he claimed to do. Applicant’s counsel asserts that the Applicant worked an average of 50 hours per week. I found earlier that the Applicant was working an average of 50 hours per week. Even if he was working 60 hours some weeks, this does not preclude him from doing some housekeeping and home maintenance chores. Taking into account the considerable variation in the estimates of the amount of time spent, and given that the Applicant was working more than full-time, I find eight hours per week to be a reasonable estimate of the amount of housekeeping and home maintenance the Applicant was doing prior to the 2003 accident.

It is evident the Applicant was doing some housekeeping and home maintenance after the accident. There is evidence to suggest that he was physically capable of doing so. However, the bulk of the evidence indicates that psychological factors were the barriers to the Applicant’s ability to initiate and follow through on most housework and home maintenance. I am satisfied that he is incapable of doing more than a small fraction of what he was doing before the 2003 accident. I therefore find that, as a result of the 2003 accident, the Applicant is substantially unable to perform the housekeeping and home maintenance tasks he did before the accident and that he is entitled to reimbursement of the expenses that were incurred as the result of that inability.

Medical Benefit – Treatment Plan of Dr. T. Hoff Dated June 22, 2012

The Applicant claims a medical benefit in the amount of $1,852.00.

Section 14 of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person for certain medical goods and services. Section 15 of the Schedule provides that the insurer shall pay for all reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his family, the rest of society and the labour market.

The Applicant argues that he is entitled to this benefit for the following reasons:

· The Applicant found the encouragement and empathy provided by Dr. Hoff to be helpful (Report of Dr. Virey, June 21, 2012⁶⁰)

· In 2010 Dr. Hoff noted slight improvement since beginning to treat the Applicant in 2006⁶¹

· The assessment of Dr. Mandel, which Royal relied on to deny the benefit, is flawed. Dr. Mandel relied solely on test results and ignored clinical observations. He allegedly ignored the reports of Dr. Virey, the Applicant’s treating psychiatrist.

In its submissions, Royal notes that Dr. Hoff gave an updated opinion in August 2014, after speaking with the Applicant on the telephone and meeting with him once. Dr. Hoff found that the Applicant’s condition had not deteriorated, despite the discontinuance of his treatment two years previously. As well, Dr. Hoff noted that when he first started to meet with the Applicant in 2006 “Mr. Aloysius was my most depressed patient ever”. He goes on to state, “By 2010, however, he showed slight improvement regarding vitality and verbal expression and this continued up to when I wrote my report in July of 2012”.⁶²

At the time of this proposed treatment plan, the Applicant was seeing Dr. Virey on a regular basis. I see no reason why he would need to see a second mental health professional, who apparently noted only “slight improvement” over a six year period.

This treatment plan is not reasonable or necessary. Six years of treatment only slightly reduced the effects of the Applicant’s disability and would seem to have no effect on his functionality. This claim is denied.

Interest

I am solely concerned with interest that may be owing on overdue housekeeping and home maintenance benefits, as this is the only claim upon which the Applicant has been successful.

Royal argues that no interest should be payable at all. Most of Royal’s argument relates to the claims arising out of the 2005 and 2006 accidents, which have been denied. However, it argues that the Applicant never applied for housekeeping benefits post-104 weeks as a result of the 2003 accident.

The Applicant argues that interest is payable from January 31, 2005, which is the commencement of the post-104 week period for the 2003 accident and the date Royal terminated housekeeping benefits. The Applicant cites the case of Grigoroff v. Wawanesa Mutual Insurance Company⁶³ in support of its argument that interest runs from the date the payment becomes overdue, as stated in section 46 of the Schedule.

I do not agree with Royal that the Applicant never applied for housekeeping benefits post-104 weeks. It is evident from the Report of Mediator dated February 16, 2005⁶⁴ that the Applicant was claiming housekeeping benefits “from December 21, 2003 to date and ongoing”. The same report recorded the Applicant’s claim for interest.

In Grigoroff, the Court considered Attavar v. Allstate Insurance Co. of Canada.⁶⁵ In both cases payments were made by insurers and at a later date, findings were made that a higher amount ought to have been paid. As the court stated: “The question then becomes whether the insurer ought to pay interest from the time stipulated in the Regulations even though the insurer had no way of knowing the payments they had made were not sufficient”. The Court likened this situation to a claim for damages awarded after a trial. An insurer will not know the amount of damages until judgment is delivered, but will nonetheless have to pay interest from the date set out in the Courts of Justice Act which may be many months or years before judgment is delivered. The Court found that the provisions of the Schedule are clear that the interest runs from the day the payment becomes due.

I agree with the court’s reasoning and am bound by it.

Interest is payable on outstanding amounts from the date they were due in accordance with the Schedule.

Special Award

Subsection 282(10) of the Insurance Act provides that if the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to an award of benefits and interest, shall award a lump sum of up to 50 per cent of the amount to which the insured person was entitled at the time of the award.

Case law provides some guidance in this regard. Unreasonable conduct does not need to be in the nature of “bad faith” or “willful misconduct”.⁶⁶ It also worth noting that the conduct of both parties should be considered.⁶⁷

I have found that the claims for Attendant Care Benefits are unjustified and that claims for the housekeeping benefits as a result of the 2005 and 2006 accidents are barred either by virtue of failure to comply with section 32 or with the limitation periods. With regard to the housekeeping claims arising out of the 2003 accident, Royal in fact paid housekeeping benefits to the two-year mark. They were under no obligation to pay further housekeeping benefits until the Applicant was found to be catastrophically impaired. There was evidence that supported a finding either way. In the circumstances there was nothing unreasonable in Royal’s decision to withhold further housekeeping benefits until a determination was made regarding the Applicant’s CAT status.

I am not satisfied that this is a case that justifies a Special Award.

EXPENSES

If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.

September 30, 2015

Stuart J. Mutch

Arbitrator

Date