Neutral Citation: 2015 ONFSCDRS 200

FSCO A13-000932

BETWEEN:

JOHN CHERNET

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Jeffrey Rogers

Heard: July 21, 22, 23 and 24, 2014 and January 26, 27 and 29, 2015, at the offices of the Financial Services Commission of Ontario in Toronto, and by written submissions, completed on May 27, 2015.

Appearances: Mr. Martin Zatovkanuk, solicitor for Mr. Chernet Mr. Cary Schneider, solicitor for RBC General Insurance Company

Issues:

This arbitration arises from a motor vehicle accident on March 31, 2010 in which, the Applicant, John Chernet, was injured. He applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose regarding Mr. Chernet’s entitlement to further claimed benefits. The parties were unable to resolve their disputes through mediation, and Mr. Chernet applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Catastrophic Impairment: Mr. Chernet claims that he sustained a catastrophic impairment as a result of the accident, within the meaning of sections 2(1.2)(f) and 2(1.2)(g) of the Schedule.
Income Replacement Benefits (IRBs): Mr. Chernet claims IRBs at the rate of $400 per week, from September 7, 2010, to present and ongoing.
Housekeeping and Home Maintenance Benefits: Mr. Chernet claims housekeeping expenses at the rate of $100 per week, from September 2, 2010, to present and ongoing.
Attendant Care Benefits (ACBs): Mr. Chernet claims monthly ACBs in the amount of $839.19 from April 1, 2010 to May 31, 2010, and $480.44 from June 1, 2010 to present and ongoing.
Medical/Rehabilitation Benefits

Mr. Chernet claims the following as medical/rehabilitation benefits:

· $7,274.13 for unidentified services;

· $158.80 for prescription medication, denied on September 19, 2012;

· $4,354.13 for treatment by GTA medical, denied on August 7, 2012;

· $1,344.20 for prescription medication denied on September 7, 2012;

· $600 for orthotics and $72 for an ankle brace recommended by Cornerstone Physio and denied on November 7, 2012;

Cost of Examinations or Assessments.

Mr. Chernet claims the following as the cost of examinations or assessments:

· $200 for a re-assessment and completion of OCF-18 submitted November 23, 2010;

· $200 for a re-assessment and completion of OCF-18 submitted December 9, 2010;

· $70 for completion of an OCF-18 submitted December 9, 2010;

· $140 for completion of 2 OCF-18’s submitted on December 15, 2010;

· $200 for an assessment and completion of an OCF-18 submitted January 17, 2011;

· $70 for completion of an OCF-18 submitted on January 19, 2011;

· $200 for a re-assessment and completion of an OCF-18 submitted February 2, 2011.

Interest: Mr. Chernet claims interest on amounts found to be overdue, under section 46 of the Schedule.
Special Award: Mr. Chernet claims a special award under section 282(10) of the Act.
Arbitration Expenses: both parties claim their expenses of the arbitration.

Result:

Mr. Chernet sustained a catastrophic impairment as a result of the accident, within the meaning of section 2(1.2) (g) of the Schedule. It is therefore not necessary to determine whether he also sustained a catastrophic impairment within the meaning of section 2(1.2)(f).
Mr. Chernet is entitled to payment of IRBs at the rate of $400 per week, from September 7, 2010, to present and ongoing.
Mr. Chernet is entitled to payment of housekeeping expenses at the rate of $90 per week, from September 2, 2010, to present and ongoing.
Mr. Chernet is entitled to payment of ACBs for assistance with showering from April 1, 2012 to March 31, 2013. From April 1, 2013, to present and ongoing, he is also entitled to payment for assistance with cueing and organization with regard to medication, cueing with regard to appointments and occasional emotional support. For assistance with showering he is entitled to one hour per week, in the Form 1 category of “bathing”. For assistance with medication he is entitled to 7 hours per week, in the Form 1 category of “medication”. For general cueing and emotional support, he is entitled to 5 hours per week, in the Form 1 category of “basic supervisory care”. I leave it to the parties to calculate the amount of my award, based on the prevailing prescribed hourly rates. If the parties are unable to agree, I remain seized of the issue.
The decision on entitlement to medical/rehabilitation benefits is reserved.
Mr. Chernet’s claim for payment of the cost of examinations or assessments is dismissed.
Mr. Chernet’s claim for a special award with regard to the benefits found to be owing is dismissed.
Mr. Chernet is entitled to interest on amounts found to be overdue, under section 46 of the Schedule. I remain seized of the issue of the amount of interest to be paid, if the parties are unable to resolve it on their own.
If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code. The time for making the request for an appointment will begin to run when all issues have been resolved by decision or by settlement.

EVIDENCE AND ANALYSIS:

Overview

On March 31, 2010 Mr. Chernet was driving his car on the exit ramp from Highway 401 to Avenue Road., in the City of Toronto, when the vehicle in front of him stopped suddenly. Mr. Chernet was not able to stop. He rear-ended the other vehicle with enough force to deploy the airbags. An ambulance was called to the scene but Mr. Chernet was not taken to the hospital. He reported immediate shock but no immediate physical symptoms. Mr. Chernet went to see his family doctor the following day with complaints of pain. The family doctor sent him for X-Rays and recommended that he take Advil for his pain.

Mr. Chernet was born on August 24, 1967. He was 42 years old at the time of the accident. His OHIP records show no entries for services in the 4 years before the accident.² After being unemployed for a year or two, he claims to have been working as a restaurant manager at the time of the accident. He has not returned to work since the accident, except for a brief attempt. Despite extensive physical and psychological therapy, his functioning remains severely restricted.

Medical imaging since the accident has provided objective evidence of injuries and degenerative changes. Mr. Chernet attributes them to the accident. RBC says that the injuries pre-existed the accident and the degenerative changes are unrelated to the accident. Since the accident, Mr. Chernet has also been diagnosed with diabetes and a heart condition. He attributes these conditions as well to the accident, with no supporting medical opinion.

For the reasons that follow, I accept RBC’s submission that Mr. Chernet overstates the injuries the accident caused. However, I conclude that he was asymptomatic before the accident and that the injuries he sustained in the accident triggered symptoms which caused a mental impairment from which he has not recovered. I conclude that he sustained a catastrophic impairment as a result of the restrictions of his ability to function due to his mental impairment.

I conclude that he meets the disability test for entitlement to ongoing IRBs and he qualifies for payment, despite evidence of his own past bookkeeping deficiencies and similar deficiencies by his employer at the time of the accident.

I conclude that he was able to resume his self-care activities after the accident but that he later again required assistance, but not at the level that he claims. He is therefore entitled to further and ongoing ACBs.

I conclude that he is entitled to further and ongoing housekeeping because he has never been able to return to his pre-accident housekeeping and home maintenance activities.

I conclude that he has not proven entitlement to the claimed cost of examinations or assessments.

I conclude that RBC has not unreasonably delayed or denied payment of the benefits I have found to be owing and Mr. Chernet is therefore not entitled to a special award.

I reserve the decision on entitlement to medical or rehabilitation benefits and the expenses of the arbitration.

No Adverse Inference

RBC submits that I should draw an adverse inference from Mr. Chernet’s failure to call witnesses to corroborate his evidence. It submits that this adversely impacts his credibility with regard to all of his claims. More specifically, RBC submits Mr. Chernet should have called witnesses to corroborate his testimony regarding his history of employment and the AC and housekeeping services he has received since the accident.

The rule regarding adverse inference is neatly summarized in MacMaster (Litigation Guardian of) v. York (Regional Municipality)³, where the Court states:

An adverse inference with varying weight attached to it may occur in circumstances where a party fails to call a material witness, and it is apparent from all of the other evidence in the case that the witness, who was particularly and uniquely available to that party, would have been able to help the court by giving evidence on a material issue. (Emphasis added)

I reject RBC’s submission. The circumstances do not satisfy the second part of the rule as summarized in Mac Master. The suggested witnesses were not particularly and uniquely available to Mr. Chernet. Mr. Chernet has no property in the witnesses RBC suggests he should have called. RBC was aware of the witnesses. It had the right to obtain their contact information, and, at least in the case of Mr. Chernet’s pre-accident employer, RBC was in contact with the relevant witnesses during its adjusting process. I assume that RBC chose not to call these witnesses for tactical or practical reasons, as did Mr. Chernet.

RBC cites the decisions in Kasik and Intact Insurance Company, Bruno and State Farm Mutual Insurance Company and Aloise and Lombard General Insurance Company of Canada⁴ in support of its position. These cases are of little assistance. The thrust of the cases is a refusal to accept the available evidence because of its lack of reliability without corroboration, not a rejection of otherwise credible evidence. In arriving at my rulings, I have found the available evidence to be credible, without corroboration.

Mr. Chernet Sustained a Catastrophic Impairment

Introduction

I will first address the issue of catastrophic impairment because the findings inform Mr. Chernet’s entitlement to the weekly benefits he claims.

Mr. Chernet claims that he satisfies the definition of catastrophic impairment as set out in two sections of the Schedule. First, he claims that he sustained a 55% or more impairment of the whole person, within the meaning of section 2(1.2)(f) of the Schedule. Second, he claims that he sustained a marked impairment due to mental or behavioural disorder, within the meaning of section 2(1.2)(g) of the Schedule. RBC responds that the accident only caused a 16% impairment of the whole person, and that Mr. Chernet’s accident-related mental disorder results in a mild impairment of his ability to function. He therefore does not meet the definition of catastrophic impairment.

For the reasons that follow, I find that Mr. Chernet meets the definition of catastrophic impairment because he sustained a marked impairment due to mental disorder. It is therefore not necessary to determine whether the accident also caused a 55 per cent or more impairment of the whole person. However, a discussion of Mr. Chernet’s physical impairments is necessary because of its influence on the issue of causation of his mental disorders.

Since the accident, Mr. Chernet has complained of pain in the right shoulder, right ankle and right hip. Post-accident MRIs have disclosed moderate right hip osteoarthritis, a ligament tear and Hill-Sachs impaction injury to the right shoulder, and a torn ligament along with osteoarthritis in the right ankle. The orthopaedic surgeons who examined Mr. Chernet on behalf of RBC concluded that these conditions were not caused by the accident. I agree. I accept their evidence that neither the mechanics of the accident nor the immediately ensuing report of pain is consistent with the disclosed injuries to the right shoulder and ankle. I accept their evidence that the degeneration to the right hip could not have been caused by soft tissue injuries, and that arthritis could not have developed in the time between the accident and the MRI.

Nevertheless, there is no evidence that Mr. Chernet experienced pain in these areas before the accident, or that his functioning was compromised. He had no history of medical treatment for any reason in the four years before the accident. The record supports a finding that the accident aggravated or exacerbated the pre-existing conditions and that symptoms have continued uninterrupted.

The diagnoses of Mr. Chernet’s mental disorders are based upon his inability to cope with his pain. There is no evidence that pre-existing pain, or pain related solely to pre-existing conditions caused Mr. Chernet’s mental disorders. I therefore find that the accident-related pain to the right shoulder, right ankle and hip are material factors in the development of Mr. Chernet’s mental disorders, despite the pre-existing conditions.

Assessing Mental Disorder--The Pastore Approach

Section 2(1.2)(g) of the Schedule defines catastrophic impairment due to mental or behavioural disorder by reference to the process found in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides). In the leading decision on the issue, the Court of Appeal summarized the three-stage process required for deciding the issue of catastrophic impairment due to mental or behavioural disorder as follows:⁵

An assessment … is carried out by reference to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides). Chapter 14 of the Guides sets out a three-stage process for evaluating catastrophic impairment based on mental disorder using four categories of functional limitation and five levels of dysfunction. The first stage is diagnosis of any mental disorders, followed by the second stage where the impact on daily life is identified. The third stage is assessing the severity of limitations by assigning them into the four categories and determining their levels of impairment…”

The direction from the Court of Appeal requires the following analysis:

Did the accident cause Mr. Chernet to suffer a mental or behavioural disorder?
If it did, what is the impact of mental or behavioural disorders on his daily life?
In view of the impact, what is the level of impairment in the four categories of functional limitation?

These questions are addressed below.

The Accident Caused a Mental Disorder

Responding to two applications he made, RBC assessed Mr. Chernet twice for the purpose of determining whether he sustained a catastrophic impairment. The first assessment was done in April, 2012 and the second in May 2013. The same assessors were used and the findings were essentially the same.

Dr. Brian Hines did the psychiatric assessments for RBC and he testified at the hearing. In 2012, Dr. Hines concluded that the accident caused Mr. Chernet to sustain an Adjustment Disorder With Mixed Anxiety and Depressed Mood. His diagnosis was the same in 2013. He concluded that Mr. Chernet’s mental disorder caused a mild impairment of his ability to function in each of the four categories.

Dr. Hines diagnosed an accident-related mental disorder, within the meaning of section 2(2.2)(g). RBC does not submit that I should disregard this diagnosis. I find that the accident caused a mental disorder.

Mr. Chernet’s treating psychiatrist and the psychologist upon whose opinions he relies, diagnosed different mental disorders. They concluded that Mr. Chernet suffered from Major Depressive Disorder, Post-Traumatic Stress Disorder and a Pain Disorder. I will address the divergent diagnoses in the following section in which I analyse the impact of Mr. Chernet’s mental disorder on his ability to function.

Mr. Chernet’s mental disorder results in a marked impairment

For diagnosis of mental disorders, the Guides refer to the criterion set out in the Diagnosis and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). As noted above, Dr. Hines diagnosed a mental disorder. Dr. Lara Davidson, the psychologist who assessed Mr. Chernet for the purpose of his catastrophic impairment application, made the divergent diagnosis of Pain Disorder and Major Depressive Disorder. These diagnoses are also recognised as mental disorders in the DSM-IV.

Once a diagnosis of mental disorder is made, the Schedule assigns no weight to the diagnosis. The next question is the impact of the mental disorder on function. Diagnosis is important only if the criteria for diagnosis provide insight into the expected impact on function.

Both Dr. Hines and Dr. Davidson had access to similar information on the history of Mr. Chernet’s injury and treatment. They took similar histories from Mr. Chernet and they both observed similar behaviour during their assessments. Although much time was spent defending their diagnoses at the hearing, neither suggested that their diagnosis was the basis of their opinion regarding the level of Mr. Chernet’s impairment of function. In fact, taking that approach would violate the three-step analysis Pastore dictates. The analysis requires assessment of impact on function, and not an assessment of severity of symptoms.

The conclusions Dr. Hines and Dr. Davidson reached regarding Mr. Chernet’s level of impairment differed because of divergent views in three main areas:

· whether loss of function was due to mental disorder or physical pain;

· the weight to be given to observed behaviour during their assessments; and

· the level of their acceptance of Mr. Chernet’s reports of functional limitations.

Since the diagnosis does not determine the level of impairment, I find it unnecessary to resolve the disagreement. My analysis will focus on the three areas of disagreement regarding Mr. Chernet’s loss of function due to mental disorder.

The Guides direct assessment in the following four categories of function:

(1) Activities of daily living (ADLs);

(2) Social functioning;

(3) Concentration, persistence and pace; and

(4) Deterioration or decompensation in work or worklike settings (adaptation).

The Guides direct that each category be assessed, based on the following five levels of impairment:

· Class 1: no impairment;

· Class 2: mild impairment, which “implies that any discerned impairment is compatible with most useful functioning”;

· Class 3: moderate impairment, which “means that the identified impairments are compatible with some, but not all, useful functioning”;

· Class 4: marked impairment, which “is a level of impairment that significantly impedes useful functioning”; and

· class 5: extreme impairment, which “preclude(s) useful functioning”.

This assessment must be conducted, bearing in mind that the impairment must be as a result of mental or behavioural disorder. A marked impairment in one area of function satisfies the test. Pain due to purely physical injuries should be factored out, if possible. However, there is no absolute requirement to dissect the pain into its constituent parts.⁶

The opinions of Dr. Edwin Urovitz and Dr. Greg Jaroszynski, orthopaedic surgeons who assessed Mr. Chernet on behalf of RBC, provide context in deciding whether Mr. Chernet’s loss of function is to be attributed to his mental disorder. Both of these doctors testified at the hearing.

Dr. Urovitz examined Mr. Chernet on August 4, 2010, about 4 months after the accident. The purpose of the assessment was to opine on Mr. Chernet’s entitlement to ongoing IRBs, housekeeping and physical therapy. Mr. Chernet had been receiving physical therapy since the accident, but he complained that his symptoms were getting worse, not better. At this examination, Mr. Chernet’s complaints were bilateral shoulder pain, lower back pain, right flank pain, abdominal pain, and pain in the right baby finger, and left middle and ring finger.

Dr. Urovitz concluded that Mr. Chernet suffered uncomplicated soft tissue injuries to the cervical spine, shoulders and lumbar spine, from which substantial recovery was expected within 8 to 12 weeks. Dr. Urovitz found some tenderness but he opined that there was no orthopaedic explanation for Mr. Chernet’s ongoing complaints. He concluded that, from an orthopaedic perspective, Mr. Chernet had reached maximum medical recovery. The pain related behaviour that Dr. Urovitz observed during his examination led him to conclude that there was a marked non-organic component to Mr. Chernet’s presentation.⁷ He testified that the signs suggested chronic pain behaviour or psycho-emotional overlay.

Dr. Jaroszynski first examined Mr. Chernet on March 20, 2012, for the purpose of determining whether he sustained a catastrophic impairment as a result of the accident. By that time, two years had passed since the accident. Mr. Chernet still complained of neck pain, bilateral shoulder pain, right elbow pain, right little finger pain, lower back pain, and right ankle pain. MRIs had by then disclosed moderate right hip osteoarthritis, mild degenerative changes to the cervical and lumbar spine, a ligament tear and Hill-Sachs impaction injury to the right shoulder, mild tendinosis in the left shoulder, and a torn ligament and osteoarthritis in the right ankle.

Dr. Jaroszynski diagnosed accident-related sprains or strains to the right shoulder and the cervical and lumbar spine, a possible strain or sprain to the left shoulder, and possible exacerbation of a pre-existing ankle injury. He concluded that the arthritis in the hip, the tear in the right shoulder and the tear and arthritis in the right ankle were not caused by the accident. He found no orthopaedic explanation for Mr. Chernet’s ongoing complaints. He opined that this was “an extreme case of symptom magnification…⁸” Dr. Jaroszynski did find some ongoing, accident-related, physical deficits. He assigned a 5% WPI, based on ongoing lower back pain.

Dr. Jaroszynski again assessed Mr. Chernet for the same purpose in August 2013. By then Mr. Chernet’s pain complaints had increased. Dr. Jaroszynski’s orthopaedic opinion was essentially the same. He now assigned a WPI of 10%. The additional 5% was assigned to the cervical spine, based on Mr. Chernet’s ongoing complaints of numbness in the right hand. Dr. Jaroszynski now described Mr. Chernet’s behaviour as “a very non-organic presentation of almost theatrical proportions⁹.”

Taken literally, Dr. Jaroszynski’s description of Mr. Chernet’s behaviour gives the impression that he found that Mr. Chernet was not in real pain, that he was just acting as though he were in pain. However, Dr. Jaroszynski testified that he made no such finding. He testified that he uses the term “symptom magnification” to describe pain for non-organic reasons. Similarly, his evidence was that his use of the term “theatrical” to describe Mr. Chernet’s behaviour was purely descriptive. He did not mean that Mr. Chernet was acting or malingering. He agreed that pain could exist, with no organic explanation. It could come purely from the brain. In other words, in the opinion of Dr. Urovitz and Dr. Jaroszynski, there was no accident-related, physical explanation for the level Mr. Chernet’s ongoing pain. One must therefore look to Mr. Chernet’s mental health for an explanation.

This brings me back to Dr. Hines’ opinion on the cause of Mr. Chernet’s functional limitations. Dr. Hines testified that he did not doubt that Mr. Chernet was in pain. His diagnosis of a mental disorder was based on his finding that Mr. Chernet was experiencing pain and struggling to deal with it. He saw Mr. Chernet struggle with his pain. However, he did not find that the pain was due to mental disorder. He testified that much of what Mr. Chernet told him in terms of his limitations was based on physical, not psychiatric problems. He testified that, had he concluded otherwise, he would have given a more significant rating, at least in the sphere of ADLs.

I find Dr. Hines’ opinion on the cause of Mr. Chernet’s limitations to be at odds with Dr. Urovitz’s and Dr. Jaroszynski’s conclusions that there was no physical explanation for Mr. Chernet’s ongoing complaints. If Dr. Hines based his findings on the limited physical evidence that Dr. Jaroszynski identified, he should have said so. He did not. Instead, it appears that Dr. Hines attempted to divide Mr. Chernet’s pain into its physical and mental parts, without adequate explanation. I discount Dr. Hines’ opinion in this regard.

The remaining areas of disagreement in approach between Dr. Hines and Dr. Davidson are:

· the weight to be given to observed behaviour during their assessments; and

· the level of their acceptance of Mr. Chernet’s reports of functional limitations.

These are two sides of the same coin. Although he appeared prepared to take Mr. Chernet at his word with regard to the source of his pain, Dr. Hines did not accept Mr. Chernet’s reports of his functional limitations. Instead he focussed largely on his own, relatively brief observations. Dr. Davidson wove her observations into the fabric of the overall history and other important observations of Mr. Chernet’s functional abilities. Dr. Hines did not have a report from anyone who observed Mr. Chernet over an extended period and he admitted that he did not know how Mr. Chernet would function if required to engage in repetitive activities. He testified that he observed mild discomfort throughout the assessment and only noted acute pain when Mr. Chernet stood up at the end of the assessment. This was a clue to Mr. Chernet’s lack of stamina, which Dr. Hines ignored. In my view, this divergence in their approach impacted findings in the sphere of adaptation, where Dr. Hines found a mild impairment, while Dr. Davidson rated Mr. Chernet as markedly impaired.

The Guides direct that the sphere of adaptation “refers to an individual’s 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 mental disorder; that is he or she may decompensate and have difficulty maintaining performance of activities of daily living, continuing social relationships, and completing tasks.”¹⁰

The Guides direct that the “Information concerning the individual’s behaviour while performing activities of daily living is particularly useful in determining his or her ability to function.” Further, “Proper evaluation of an impairment must take into account variations in the level of functioning over time to arrive at a determination of the level of severity.”¹¹

I now turn to a more detailed analysis of Dr. Davidson’s opinion. As noted above, Dr. Davidson rated Mr. Chernet to have sustained a marked impairment in the sphere of adaptation. She found moderate impairment in the other spheres. She testified that, in some ways, adaptation encompasses the other spheres. That observation is consistent with the direction in the Guides with regard to noting decompensation in the other spheres in stressful circumstances. Dr. Davidson also incorporated the opinion of Ms. Lauren Okell¹², an occupational therapist who assessed Mr. Chernet over the course of two days, shortly before Dr. Davidson did her assessment. That approach is consistent with the direction in the Guides that evaluation of an impairment must take into account variations over time.

The first post-accident assessment of Mr. Chernet’s mental status was done in June 2010, by Dr. Rick Lindal, a psychologist. Mr. Chernet had been receiving physical therapy since the accident, but he reported no alleviation of his symptoms. He complained of constant pain and frequent headaches. Based upon the history Mr. Chernet gave and psychological testing he conducted, Dr. Lindal diagnosed Mr. Chernet to be suffering from Major Depressive Disorder (Single Episode, Moderate).¹³

By the time Dr. Davidson assessed him, Mr. Chernet had been under the care of Dr. K. Gisladottir, a psychiatrist, who first saw Mr. Chernet in November 2011. Dr. Gisladottir’s diagnosis was Post Traumatic Stress Disorder (PTSD). Mr. Chernet was taking a cocktail of various medications to address his pain, mental status and insomnia.

Dr. Davidson found symptoms of PTSD, but she did not agree that Mr. Chernet met all of the requirements for this diagnosis. She endorsed Dr. Lindal’s diagnosis.

At Dr. Davidson’s assessment, Mr. Chernet’s complaints included constant pain, dizziness and headaches. The record confirms the history upon which Dr. Davidson relied. Her evidence was that her observations were consistent with the results of psychometric testing she conducted. This reinforces her opinion. As noted above, she endorsed and incorporated the opinion Ms. Okell had recently formed.

Ms. Okell conducted a Situational Assessment over the course of two consecutive days. She attended at Mr. Chernet’s home for about 5 hours on each day. The Assessment consisted of testing and observation. On the first day, she observed fatigue and inability to continue any functional activity after three hours. Soon, the assessment was curtailed so that Mr. Chernet could take a nap. On the second day, the assessment was again curtailed for similar reasons.

I find that the detailed observations Ms. Okell made regarding Mr. Chernet’s ability to function are the best evidence of his level of impairment. She noted Mr. Chernet’s deficits in the spheres of ADLs, Social functioning and Concentration, persistence and pace. I find that Ms. Okell’s observations support Dr. Davidson’s conclusion that “[G]iven the synergistic impact of depression, anxiety, irritability, pain, sleep disturbance, and fatigue, [Mr. Chernet] would not be able to consistently and effectively engage in work-related tasks/requirements such as regular attendance, making decisions, scheduling, completing tasks, and interacting effectively with supervisors and peers,. He would not likely be able to complete a normal workday/work week without interruptions from psychologically based symptoms.”¹⁴

These conclusions support the opinion that Mr. Chernet’s mental disorder significantly impedes useful functioning in the sphere of adaptation — that is, by definition, a marked impairment. I accept Dr. Davidson’s opinion in this regard and I reject Dr. Hines’ contrary opinion. I find that the accident caused Mr. Chernet to sustain a catastrophic impairment, due to mental disorder.

Entitlement to IRBs

RBC paid Mr. Chernet IRBs at the rate of $400 per week, for about 5 months after the accident. It then concluded that Mr. Chernet no longer met the disability test for entitlement to IRBs and terminated payment. Mr. Chernet claims payment of IRBs from the date of termination, to present and ongoing. RBC now argues that it should not have paid IRBs because Mr. Chernet is not eligible for IRBs. I find that Mr. Chernet meets both the disability test and the eligibility criteria for entitlement to ongoing IRBs.

Eligibility

Section 4 of the Schedule sets out the eligibility criteria for IRBs. Mr. Chernet’s position is that he is eligible for an IRB because he was employed at the time of the accident. Contrary to RBC’s submission, the eligibility criteria do not include proof of employment for the 4 weeks preceding the accident. The 4 week period set out in section 8(1) of the Schedule is simply one of the options available for calculation of gross income.

Mr. Chernet says that he was employed as the manager of an Ethiopian restaurant called the “Queen of Sheba” for 4 weeks before the accident. The evidence in support of this claim is Mr. Chernet’s testimony and the documents he provided. RBC submits that I should reject Mr. Chernet’s testimony and that the documents in support contain inconsistencies that render them unreliable. In other words, Mr. Chernet has engineered a scam.

RBC points first to the coincidence that Mr. Chernet was employed for the minimum period of 4 weeks to be eligible for an IRB. However, as noted above, the 4-week period is not part of the eligibility criteria. Mr. Chernet need only prove that he was employed at the time of the accident.

RBC next argues that Mr. Chernet’s employment history makes it unlikely that he would have landed a well-paid job as a restaurant manager. Mr. Chernet’s evidence was that, before the job at Queen of Sheba, he owned and operated a restaurant called “Cottage Restaurant”. This restaurant thrived until 2009 when it ran into financial difficulties and was shut down.

The records that Mr. Chernet provided do not confirm his evidence that he ran a successful restaurant until 2009. Mr. Chernet’s tax returns show a total of $24,500 in gross business income, for the years 2005-2008. There was no income in 2009.¹⁵ Mr. Chernet offered the explanation that he paid everything in cash through the receipts at the restaurant, including his personal expenses. That is a curious arrangement in light of his evidence that he had a partner and investors in the business.

However, there is confirmation of Mr. Chernet’s explanation in the tax returns themselves. In each year they show credits for rental payments far in excess of the gross income. There is no evidence that Mr. Chernet had any other source of income. Therefore, the tax returns confirm that Mr. Chernet was in business in the relevant years, and that he under-reported his income.

RBC then points to inconsistencies in the documents Mr. Chernet provided to prove employment at the Queen of Sheba. Mr. Chernet provided two Employer’s Confirmations (OCF-2s) to support his claim. The first shows a gross weekly income of $787.50 in each of the 4 weeks before the accident. It is dated April 28, 2010, and purportedly signed by the owner of the Queen of Sheba.¹⁶ The second OCF-2 is dated June 8, 2010, and signed by the same person. It shows a gross weekly income of $945.¹⁷ Mr. Chernet also produced a T4 slip from the Queen of Sheba showing employment income of $3,780 in 2010¹⁸, along with a Notice of Reassessment for 2010, showing income in the same amount.¹⁹

The second OCF-2,²⁰ the T4 and the Notice of Reassessment disclose the same amount of income. Mr. Chernet testified that the first OCF-2 shows net income, not gross. When one calculates the net income, based on the deductions identified in the T4, the weekly amount is $787.70. That is just 20 cents per week more than the amount in the OCF-2. The closeness leads me to conclude that Mr. Chernet’s explanation is likely accurate.

The Notice of Reassessment shows that Mr. Chernet had earlier reported no income in 2010. He testified that this was the result of a mistake by his bookkeeper. He also testified that he rectified his reporting when he was told that he had to declare his income in order to show that he qualified for IRBs. The other documents supporting Mr. Chernet’s claim that he was employed had been produced long before he could have filed his zero tax return. Therefore, if anything, the report of zero is further evidence of Mr. Chernet’s less than candid relationship with Revenue Canada. It has no bearing on whether he was employed at the time of the accident.

RBC concedes that it investigated Mr. Chernet’s claim of employment at the time that he made it. It was able to contact the employer regarding its apparent failure to deduct taxes. It was able to obtain two letters from the employer’s accountant, along with cheques for payment to Mr. Chernet.²¹ It now questions the explanations the accountant gave and the validity of the cheques. In my view, any concerns that RBC now raises are outweighed by the fact that the documents were produced promptly upon request. There were payroll records, contemporaneous cheques, an available accountant and OCF-2s. These were followed by a T4 showing deduction of taxes, making Queen of Sheba liable for remitting. Mr. Chernet could not have engineered all this, with the assistance of at least two co-conspirators, after the accident. In my view, the inconsistencies that RBC identifies show poor bookkeeping practices, if anything.

As I noted earlier, I reject RBC’s submission that an adverse inference should be drawn because he did not call a witness who saw him working at the Queen of Sheba. The restaurant apparently closed down not long after the accident. There is no evidence regarding who might still be available to testify. RBC did not pose that question to Mr. Chernet. It is unlikely that any available witness would have a clear memory. Thus there is nothing missing from the evidence that one could expect to be conclusive proof. Upon the evidence provided, I am satisfied that Mr. Chernet has proven that he was employed at the Queen of Sheba at the time of the accident. He is therefore eligible for an IRB.

Disability

Section 5 of the Schedule sets out the disability test for entitlement to IRBs. For the first 104 weeks of disability the insurer is required to pay an IRB if the insured person suffers a substantial inability to perform the essential tasks of the employment in respect of which he or she qualifies for the benefit. After that, the insurer is required to pay if the insured person suffers a complete inability to engage in any employment for which he or she is reasonably suited.

RBC terminated payment of IRBs based upon a combination of the opinions of Dr. Urovitz and Dr. Hines. As noted above, Dr. Urovitz’s opinion is at odds with Dr. Hines’. Dr. Urovitz found no physical explanation for Mr. Chernet’s pain, while Dr. Hines diagnosed a mental disorder due to problems coping with pain, but attributed loss of function principally to physical pain. I earlier rejected Dr. Hines’ opinion. I find that Mr. Chernet’s mental disorder caused a substantial inability to engage in the essential tasks of his job as a restaurant manager at the time of termination.

The evidence indicates that Mr. Chernet’s functioning did not improve after RBC terminated IRBs. It deteriorated. My finding that Mr. Chernet sustained a marked impairment in the sphere of adaptation means that he is unable to engage in any competitive employment. He therefore also meets the disability test for post-104 IRBs.

For the above reasons I have ordered RBC to pay Mr. Chernet IRBs at the rate of $400 per week, from the date of termination, to present and ongoing.

Entitlement to Attendant Care (ACBs)

Section 16 of the Schedule requires an insurer to pay ACBs to an insured person whose accident-related impairments prevent him or her from engaging in personal care activities. The monthly amount payable is determined in accordance with an Assessment of Attendant Care Needs (Form 1). The maximum amount payable to an insured person who sustained a catastrophic impairment is $6,000 per month.

Mr. Chernet first submitted a Form 1 in May 2010. It was prepared by Dr. Matthew Turgeon, a chiropractor.²² Dr. Turgeon assessed Mr. Chernet’s monthly attendant care needs at $839.19. After receiving the Form 1 by Dr. Turgeon, RBC retained occupational therapist Ms. Rayna Ghatas, to assess Mr. Chernet. Ms. Ghatas delivered a Form 1 dated June 15, 2010. Her opinion was that Mr. Chernet required no assistance with personal care. RBC paid $2,882.78 for ACBs and terminated payment, effective July 15, 2010. Its position is that Mr. Chernet continues to be independent with regard to personal care.

At the beginning of the hearing, counsel for Mr. Chernet indicated that his client claims further monthly ACBs in the amount of $839.19 from April 1, 2010 to May 31, 2010, and $480.44 from June 1, 2010 to present and ongoing. The amount claimed from June 1, 2010 corresponds to the recommendation by Dr. Turgeon in a later Form 1, dated July 15, 2010. I confirmed this information by letter to the parties, dated July 25, 2014.

In his written submissions, counsel for Mr. Chernet referred to different amounts claimed, including an ongoing claim in excess of the maximum monthly amount payable. The monthly amounts were increased to correspond to the recommendations in assessments conducted on Mr. Chernet’s behalf by Ms. Stephanie So, an occupational therapist. RBC responded to the increased claim in its written submissions, without objection. It maintained its position that Mr. Chernet needs no assistance. I have therefore addressed Mr. Chernet’s claim, as stated in the written submissions.

Mr. Chernet’s evidence at the hearing was clear on the subject of his current attendant care needs. He testified that Mr. Mohammad Salahah, a friend from the time he ran a restaurant, assists him with his personal care. Mr. Salahah takes him to medical appointments, reminds him about medication and appointments, sets out his medication as he needs to take them, washes his back and cuts his hair. He comes over 3 to 4 times a week, calls 2 to 3 times a day, and sleeps over occasionally if Mr. Chernet’s mood is particularly bad. Mr. Chernet did not testify that he currently requires more assistance with his personal care than he actually receives or that he ever required more assistance than he received.

Dr. Davidson’s evidence was generally consistent with Mr. Chernet’s testimony. She testified that Mr. Chernet told her that he is largely independent with regard to self-care. Dr. Davidson also confirmed what she reported on April 24, 2013.²³ She stated in that report that once a week Mr. Chernet gets help to take a proper shower and he gets assistance with organization of his medication.

About a year after Dr. Davidson’s report, Dr. J.S. Gupta gave a similar report regarding Mr. Chernet’s limitations in personal care activities and the assistance he receives.²⁴ He is a pain specialist who first examined Mr. Chernet in April 2104 and he testified at the hearing. In his testimony, Dr. Gupta indicated that there could be no misunderstanding about what he was told because he reviewed, with Mr. Chernet, a list of personal care activities.

I earlier reviewed Ms. Okell’s assessment while dealing with the issue of catastrophic impairment. Consistent with Mr. Chernet’s testimony, Ms. Okell reported that he was receiving assistance from a friend 3 to 5 times per week. The substance of her report was that Mr. Chernet was largely independent with regard to self-care. The deficiencies she observed were due mainly to his need for some cueing and his slow pace. However, these deficiencies had a greater impact on Mr. Chernet’s ability to complete his housekeeping tasks, than they did on his personal care activities.

In the context of the evidence I have reviewed above and several other reports in the records regarding Mr. Chernet’s ability to complete his personal care, the opinion of Ms. So is an anomaly. She reviewed the medical records and she interviewed and assessed Mr. Chernet at his home on February 12, 2012. She then prepared 3 Forms 1. Two were retroactive assessments, covering the periods from the date of the accident to January 31, 2011 and from February 1, 2011 to the date of her assessment. The third covered Mr. Chernet’s current and ongoing needs which Ms. So found to include the need for round-the-clock supervisory care.

Mr. Chernet’s evidence does not endorse Ms. So’s opinion. None of the mental health professionals who have treated or assessed Mr. Chernet concluded that he needed supervision. Nothing in the record supports the conclusion that Ms. So was in a better position to assess Mr. Chernet’s historical function than those who preceded her. Ms. So purported to correct the calculations Dr. Turgeon made regarding need immediately after the accident, but she did not address Dr. Turgeon’s opinion that need decreased when he did a further assessment in June, 2010. Ms. So claims to have based her revision upon “review of the client’s functional abilities, as described in the medical documentation”,²⁵ but she did not address earlier reports by Mr. Chernet’s treatment providers that he was largely independent with regard to self-care.

For example, on August 24, 2010, orthopaedic surgeon Dr. Adulahafid Ali stated that “Mr. Chernet reports no major difficulty with self-care activities. He sometimes has issues with putting on his socks and shoes.”²⁶ In support of her opinion, Ms. So cited Dr. Ali’s diagnosis and findings regarding Mr. Chernet’s need for housekeeping assistance, but she made no mention of Dr. Ali’s report regarding self-care.

Nothing in the record supports the conclusion that Mr. Chernet’s function improved in the year between Ms. So’s assessment and the time Ms. Okell made her observations, yet Ms. Okell observed Mr. Chernet to be far more capable in completing his self-care tasks, than Ms. So did. Entitlement to attendant care is based on function, not diagnosis. Ms. So appears to have based her opinion on the potential needs, given the medical history, rather than the actual need, in light of Mr. Chernet’s overall demands and his actual functional abilities. I do not accept Ms. So’s opinion.

In his testimony, and in his most recent reports, Mr. Chernet limited his self-care needs to assistance with washing his back, cueing with regard to medication and appointments, and some emotional support. I do not include Mr. Chernet’s evidence that his friend cuts his hair because there is no evidence that Mr. Chernet cut his own hair before the accident. Therefore, any expenses in that regard are not incurred as a result of the accident.

I earlier noted the reports of Dr. Gupta and Dr. Davidson and the observations of Ms. Okell. Dr. Hines also gave a similar account in April 2012. He recorded that Mr. Chernet told him that he is capable of all of his personal hygiene, except for washing his back.²⁷ Mr. Chernet’s testimony is consistent with my earlier finding that his current limitations are based on his mental status, and with the opinions he relies upon in support of his claim that he sustained a catastrophic impairment. Both Dr. Davidson and Ms. Okell found him to be largely independent with regard to self-care, rating him to have sustained a moderate impairment in the sphere of ADLs (the identified impairments are compatible with some, but not all, useful functioning). I accept Mr. Chernet’s testimony regarding his current limitations.

Mr. Chernet did not give many details in his testimony regarding his historic need for attendant care. He endorsed Dr. Turgeon’s first opinion, given in May 2010. He disagreed with Ms. Ghatas’ opinion that he was independent with regard to self-care. He agreed that he might have told others that he was independent with regard to self-care, but he offered the explanation that he did not know what self-care meant, when he made those statements. His evidence was that he thought it meant going to the bathroom.

I do not accept Mr. Chernet’s explanation. The medical practitioners who recorded his report of independence invariably went on to list the things he said he could not do. Therefore, even if he was unfamiliar with the term, Mr. Chernet understood that he was being asked to list the activities in which he could no longer engage as a result of the accident.

For instance, on June 8, 2010, Dr. Rick Lindal who conducted a psychological assessment of Mr. Chernet reported that he has difficulty with self-care activities, but he is independent. However, he requires assistance with other activities for which he receives “home care” and is being paid by the insurer.²⁸ As I noted earlier, on August 24, 2010, orthopaedic surgeon Dr. Ali stated that “Mr. Chernet reports no major difficulty with self-care activities. He sometimes has issues with putting on his socks and shoes.” Dr. Ali also said that Mr. Chernet was not doing any activities involving repetitive movement, heavy lifting, bending and squatting. He was able to do light cleaning and light meal preparation and was getting help from a friend.

In my view, the statements in the medical records and the fact that Mr. Chernet felt well enough to attempt a return to work in June or July 2010 support the conclusion that at some point after the accident, Mr. Chernet became well enough to resume his self-care activities. His function later deteriorated and he again required care. The questions remain, when did he become independent and when did his current needs arise?

As noted above, RBC terminated ACBs, effective July 15, 2010. The termination was based upon the opinion of Ms. Ghatas who had assessed Mr. Chernet in June 2010 and found that he needed no assistance with personal care activities. Ms. Ghatas also reported that Mr. Chernet told her that he was independent with regard to self-care. Given the confirmation of independence by Dr. Lindal in June 2010, the return to work no later than July 2010, and further confirmation by Dr. Ali in August 2010, I conclude that Mr. Chernet was independent with regard to self-care when RBC terminated payment on July 15, 2010.

The earliest report of Mr. Chernet’s renewed need for assistance with self-care is found in Dr. Hines’ report of April 2012.²⁹ He reported only the need for assistance with washing his back. By April 2013, Dr. Davidson was reporting that Mr. Chernet also received assistance with organization of his medication.³⁰ Although the need likely arose earlier, the evidence does not allow me to fix the dates of renewed need with greater precision. I find that Mr. Chernet is entitled to payment of ACBs for assistance with showering from April 1, 2012 to March 31, 2013. From April 1, 2013, to present and ongoing, he is also entitled to payment for assistance with cueing and organization with regard to medication, cueing with regard to appointments and occasional emotional support. I appreciate that this exceeds what Dr. Davidson recorded. However, as I noted earlier, I accept Mr. Chernet’s evidence regarding his current needs, based upon all of the evidence.

For assistance with showering I award one hour per week, in the Form 1 category of “bathing”. For assistance with medication I award 7 hours per week, in the Form 1 category of “medication”. For general cueing and emotional support, I award 5 hours per week, in the Form 1 category of “basic supervisory care”. I leave it to the parties to calculate the amount of my award, based on the prevailing prescribed hourly rates. If the parties are unable to agree, I remain seized of the issue.

Entitlement to Housekeeping Benefits

Section 22 of the Schedule requires an insurer to pay reasonable and necessary expenses incurred by an insured person if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance activities he or she normally performed before the accident. The maximum amount payable is $100 per week.

RBC paid Mr. Chernet $1,572.88 for housekeeping. Payment was terminated, effective September 6, 2010. Mr. Chernet claims further payment at the rate of $100 per week, from termination, to present and ongoing.

As with self-care, Mr. Chernet’s testimony regarding his need for assistance with housekeeping was clear. He testified that he was independent in this regard before the accident and has not done any housekeeping since the accident. His needs are met by his friend Stephanos Goitom, who comes over 3 to 4 times a week and stays for 3 to 4 hours each time. Mr. Goitom cooks, cleans the apartment, does the laundry, irons his clothes, and he helps with shopping. Cooking is not required daily because Mr. Chernet is able to reheat pre-cooked meals.

As with self-care, there is no evidence that Mr. Chernet’s needs for assistance with housekeeping are not being met at present, or that there was ever a time that his needs were not met. In contrast to self-care, Mr. Chernet has consistently reported that he requires assistance with housekeeping. Those who documented Mr. Chernet’s reports of independence with regard to self-care invariably went on to report the need for assistance with housekeeping.

When Ms. Ghatas assessed Mr. Chernet on behalf of RBC in June 2010, she found that he needed no assistance with personal care activities. However, she also concluded that he needed continued assistance with housekeeping. The limitations she found are remarkably similar to the ones Mr. Chernet now reports. She recommended assistance “for heavy and complex meal preparation, cleaning chores, such as vacuuming, mopping and deep bathroom cleaning; as well as for doing the laundry and the grocery shopping.”³¹ Ms. Ghatas assessed Mr. Chernet again about 2 years later. She again reported similar limitations with regard to housekeeping.³²

When Ms. Okell assessed Mr. Chernet in April 2013, she too found him to be largely independent with regard to self-care. Like Ms. Ghatas, she reported that he was limited in preparing meals, and that he was unable to do daily or weekly house cleaning and laundry.³³

RBC terminated payment of housekeeping based upon the opinions it obtained from Dr. Urovitz, the orthopaedic surgeon whose opinion I discussed earlier, and Dr. Curt West, a psychologist. As I noted earlier, Dr. Urovitz found no physical explanation for Mr. Chernet’s ongoing complaints. Dr. West found no disability based on Mr. Chernet’s mental health. These opinions are contrary to the one Ms. Ghatas had given RBC two months earlier and repeated two years later. The evidence does not support the conclusion that there was any significant improvement in Mr. Chernet’s functional abilities in the period between Ms. Ghatas’ two opinions. If anything, he became more severely limited. As an occupational therapist, Ms. Ghatas was better qualified to give an opinion in the issue of performing housekeeping tasks than Dr. Urovitz and Dr. West. I reject their opinions in this regard. I find that Mr. Chernet continues to be substantially disabled from performing the housekeeping tasks that Ms. Ghatas identified in June 2010.

By Mr. Chernet’s calculation, Mr. Goitom provides him with housekeeping assistance a minimum of 9 hours per week and a maximum of 16 hours. Ms. Ghatas calculated that the tasks would be completed in 6 hours per week. Dr. Turgeon, the chiropractor who assessed Mr. Chernet’s need for attendant care and housekeeping around the same time that Ms. Ghatas did, recommended 12 hours. However, he gave no breakdown of the time required to complete each task.³⁴ Mr. Remik Zakrezewski, an occupational therapist who did a further assessment on Mr. Chernet’s behalf in September 2013, calculated the required time at 9.25 hours.³⁵

Given the tasks to be completed, I find it likely that the required time is more than Ms. Ghatas calculated, but less than Mr. Chernet’s maximum calculation. I find an average of 9 hours weekly to be reasonable. Mr. Chernet testified that he agreed to pay Mr. Goitum the reasonable rate of $10 per hour. Based upon the above, I have ordered RBC to pay Mr. Chernet further housekeeping at the rate of $90 per week, from September 7, 2010, to present and ongoing.

Medical/Rehabilitation Benefits

Mr. Chernet claims the following as medical/rehabilitation benefits:

· $7,274.13 for unidentified services;

· $158.80 for prescription medication, denied on September 19, 2012;

· $4,354.13 for treatment by GTA medical, denied on August 7, 2012;

· $1,344.20 for prescription medication denied on September 7, 2012;

· $600 for orthotics and $72 for an ankle brace recommended by Cornerstone Physio and denied on November 7, 2012;

In July 2013, the pre-hearing arbitrator noted that Mr. Chernet was making a claim for unspecified medical benefits. It was noted that the parties would provide a joint list, following the pre-hearing. At a further pre-hearing discussion in October 2013, the pre-hearing arbitrator noted that a claim for medical benefits in the amount of $7,274.13 was added, with particulars to be provided. At the beginning of the hearing, the parties advised that the claim for medical benefits was based upon a treatment plan in the amount of $7,274.13 and the other items listed above. I confirmed this by letter dated July 25, 2014. The parties advised that particulars of the claim for $7,274.13 had been provided. Mr. Chernet sought to add further claims which had not been mediated. RBC objected and advised that the time limit for mediation has likely expired. I denied the request, without prejudice to Mr. Chernet’s right to pursue those claims in a separate arbitration.

There was very little evidence led at the hearing on the issue of entitlement to medical or rehabilitation benefits. There is nothing in the 97 pages of written submissions from Mr. Chernet that explains the claim for medical benefits. It appears that RBC is aware of the details, since it made responding written submissions, but I am still unable to determine the details after reviewing those submissions.

I have concluded that I am unable to address these claims, without further submissions. I urge the parties to attempt to resolve this aspect of the dispute on their own. If they are unable to do so, I remain seized of the issue. I will resume the hearing for that purpose at the request of either party, made within 120 days of this decision.

Cost of Examinations or Assessments

I received no evidence or submissions on this issue. Mr. Chernet bears the onus of proving entitlement. Since no evidence was introduced to satisfy this onus, this aspect of the claim is dismissed.

Special Award

Section 282(10) of the Insurance Act requires an arbitrator to order payment of a special award, in addition to awarding benefits and interest to which an insured person is entitled, upon finding that an insurer has unreasonably withheld or delayed payments.

The touchstone definition of unreasonable conduct is found in the decision of Arbitrator Palmer in Plowright and Wellington Insurance Company. ³⁶

Unreasonable” behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, unyielding or immoderate.

As stated by Director Draper in Singh and Commercial Union Assurance Company³⁷ :

...whether a special award should be ordered and, if so, how much...must be considered in the full context of the case...

The jurisprudence establishes that the insurer’s handling of the claim is not to be held to a standard of perfection and should not be judged with the benefit of hindsight. Rather, it should be evaluated on the basis of the information available at the time.

Mr. Chernet’s claim for a special award was added at the start of the hearing. There was little evidence at the hearing directly addressing the insurer’s conduct. Mr. Chernet’s submissions claim that a special award is warranted because RBC refused to accept the evidence of his treatment providers, relying instead on the opinions of its own assessors. It was submitted that, as a result benefits were frequently stopped and later restarted and there was inordinate delay in providing necessary items. The examples given are a cane and orthopaedic shoes. With the possible exception of orthopaedic shoes,³⁸ the benefits identified were never in dispute in this arbitration. I find no jurisdiction to consider a special award in those circumstances.

Mr. Chernet further submits that RBC acted unreasonably in maintaining its termination of IRBs despite his approval for Ontario Disability Benefits in 2014. However, I heard no evidence on this fact. I have neither evidence nor submissions on how the decision making process regarding Ontario Disability Benefits renders unreasonable a decision to deny IRBs in Mr. Chernet’s circumstances.

Mr. Chernet appears to also submit that all benefits were unreasonably denied because RBC relied on the opinions of its own assessors without considering evidence to the contrary. I find no basis for the claim that evidence to the contrary was not considered. Therefore, RBC’s conduct could be found to be unreasonable only if there was no reasonable basis for the opinions its assessors formed, or if RBC denied benefits despite conflicting opinions from its own assessors.

In dealing with the issue of catastrophic impairment, I found a conflict between the opinions of Dr. Hines, the psychiatrist who attributed much of Mr. Chernet’s functional deficits to physical pain, and the opinions of orthopaedic surgeons Dr. Urovitz and Dr. Jaroszynski, who found no physical explanation for Mr. Chernet’s ongoing complaints. However, as I noted, Dr. Jaroszynski also appeared to call into question the authenticity of Mr. Chernet’s presentation. The neutrality of his apparently accusatory language was not revealed until his testimony at the hearing. RBC could not have known until then. In addition, the available evidence regarding Mr. Chernet’s pre-existing conditions raised reasonable debate regarding causation. In these circumstances, I do not find RBC’s failure to reverse its earlier decisions to terminate IRBs, AC and housekeeping to be excessive, imprudent, stubborn, unyielding or immoderate.

I conclude that Mr. Chernet is not entitled to a special award with regard to the benefits to which I have found entitlement.

Procedural Ruling

The Record

At the beginning of the hearing the parties proposed to file extensive document briefs which clearly contained many documents which were irrelevant to the issues to be determined. I declined to accept them. I ruled instead that the record would be the documents referred to in testimony and marked as exhibits and any further properly admissible documents, referred to in final submissions. Final submissions were in writing. At the end of the hearing I provided the parties with the list of exhibits and I instructed them to prepare a joint brief upon which the written submissions would be based. They did not. Instead each party provided separate briefs, including many documents not referred to in submissions. In addition, Mr. Chernet’s submissions included several documents he had not properly severed. I have ignored those documents. The record remains as I ruled.

The written submissions by both parties also contained statements of alleged facts regarding which no evidence was provided. For instance, RBC stated how much was paid for medical or rehabilitation benefits in arguing that it approved all reasonable proposals. Mr. Chernet invited me to visit the Revenue Canada website to confirm his freshly stated tax calculations. I have ignored these “facts”.

For the purpose of this decision, I have referred to the documents which were marked as exhibits by the exhibit number. Documents not marked as exhibits are referred to as they are identified in the briefs accompanying the written submissions.

Interest

Mr. Chernet is entitled to interest on the overdue payment of the benefits found to be owing, pursuant to section 46 of the Schedule, as amended. I remain seized of the issue of the amount of interest to be paid, if the parties are unable to resolve it on their own.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code. The time for making the request for an appointment will begin to run when all issues have been resolved by decision or by settlement.

October 1, 2015

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario