Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 136

FSCO A13-008747

BETWEEN:

ZUHAIL KHAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator John Wilson

Heard: January 12, 13, and 14, 2016

Appearances: Mr. Khan on his own behalf Michael Knez for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Zuhail Khan, was injured in a motor vehicle accident on February 4, 2010. He applied for and received some statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Khan 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:

Is Mr. Khan entitled to a catastrophic impairment designation?
Is Mr. Khan entitled to further housekeeping benefits?
Is Mr. Khan entitled to further non-earner benefits?

Result:

Mr. Khan has not proven entitlement to a designation of catastrophic impairment.
Mr. Khan is not entitled to further housekeeping benefits.
Mr. Khan is not entitled to further non-earner benefits.

EVIDENCE AND ANALYSIS:

Mr. Khan has had many challenges in his life. Although his early life was spent in Afghanistan, he travelled, first to Pakistan, then the United States, and finally Canada, arriving here as a refugee claimant seeking respite from the horrors of the ongoing war in his homeland.

Due to the complexities of the law surrounding the claim for refugee status, Mr. Khan at the time of the motor vehicle accident, which is the subject of this arbitration, found himself in an anomalous situation. Due to a finding by the relevant Canadian authorities, Mr. Khan`s refugee claim was not accepted. Nor was Mr. Khan deported since it was not then Canadian policy to send failed refugee claimants back to war zones where their lives might be threatened.

As a result, Mr. Khan continued to live in Toronto, although officially barred from working or otherwise obtaining remunerative employment. More importantly, as a result of his lack of official status, Mr. Khan believed that he had no medical coverage during his sojourn in Canada, a belief that appeared to be reinforced by his interactions with the health care sector in Toronto which included billings to him personally for medical services rendered by health professionals that might normally be covered by OHIP.

Indeed, prior to the motor vehicle accident itself, Mr. Khan had begun a series of interactions with the mental health system. Ultimately he was subject to involuntary detentions in hospital and was treated for symptoms believed to relate to schizophrenia.

In this arbitration Mr. Khan advances a claim for catastrophic impairment as well as ongoing claims for housekeeping and non-earner benefits that are closely linked to the catastrophic impairment claim.

Mr. Khan’s claim for catastrophic impairment appears to be linked to the serious aggravation of his schizophrenic or schizo-affective condition which, he claims, significantly deteriorated following, and more controversially because of the accident. Mr. Khan`s mental health condition apparently deteriorated significantly to the extent that even his shelter became at risk.

Due to his lack of resources and perhaps a desire to be more autonomous, Mr. Khan took on the prosecution of his claim for accident benefits, on his own, without the benefit of counsel. It is a measure of his determination that he was able to stay with his claim from its inception to the completion to the arbitration hearing.

That is not to say that Mr. Khan was not disadvantaged at times by attempting to advance a complex claim without the resources of a law firm to provide the jurisprudential and logistical support that can be critical to many claims. Mr. Khan did at least have the support of Mr. Joel Roher, a friend and neighbour who assisted and encouraged him throughout the process without taking on the role of counsel.

Early on in the process, State Farm quite rightly raised the issue of whether Mr. Khan was capable of and indeed had the legal capacity to proceed with the arbitration on his own, given the severity of the psychological disability complained of post-accident.

During one of the latter pre-hearings, Arbitrator Lee addressed this issue directly and ruled that Mr. Khan had the legal capacity as defined by Rule 10 of the Dispute Resolution Practice Code to carry on with the arbitration process. As capacity is time and subject specific, I kept an open mind as to this issue during the arbitration, and if I had some lingering doubts, they were dealt with by Dr. Edmond Lo’s opinion expressed during his testimony, that Mr. Khan had the ongoing mental capacity to carry on with this arbitration. (Dr. Lo was Mr. Shah`s family physician with a lengthy experience with Mr. Khan.)

Catastrophic Impairment

The Statutory Accident Benefits Schedule is not particularly user-friendly. Since its origins in the OMPP scheme decades ago, it has been revised, patched, twisted and shaken to fit a variety of legislative and political mandates, in the process mutating to an often self-contradictory and technical maze designed to challenge and frustrate both claimants and insurers who attempt to navigate the claims process.

Not the least complicated of the processes contained in the Schedule is that leading to a declaration of catastrophic impairment. This designation, which is the key to accessing the enhanced benefits which may be necessary for critically injured claimants, is unlocked through an assessment process that asks whether an injured person meets highly technical criteria, principally expressed in the context of an obsolete guide to the assessment of disability, namely the American Medical Association`s Guides to the Evaluation of Permanent Impairment, 4th edition 1993.

According to the current legislation it is the Insurer who is required to make the determination of whether or not a person is catastrophically impaired, based on the assessment criteria set out in the Guides.

On its face, the pathway to a determination of catastrophic impairment is fairly straightforward and is set out in section 45 of the Schedule. The insured person can institute the determination process by a request to the Insurer duly signed by a physician or other designated health professional who conducted an examination in support of the application for catastrophic impairment.

Mr. Khan submitted an Application for Determination of Catastrophic Impairment signed by Dr. Lo who opined that:

Mr. Khan developed symptoms of Schizophrenia. He has hallucinations, paranoia, disorganization. He is incapable of handling his daily activities.

Although the request identified Mr. Khan`s whole body impairment, a cumulative measure of physical psychological and functional disability, as being in issue, it was also clear that the major component of that impairment was psychiatric. To that end, Dr. Lo included a report by Dr. Amanda Abate in conjunction with Dr. Arash Nakhosil, both from St. Michael’s Hospital Department of Psychiatry.

The St. Michael’s report spoke of evidence of delusional disorder, a long-standing history of delusions, a history of auditory hallucinations, limited insight and fair judgement but of cognition that was “grossly intact.”

The report listed under the heading of “impression”, “1. Schizophrenia, 2. Cannabis use disorder 3. Antisocial personality traits.”

Significantly, also mentioned was a request by Mr. Khan for a “report to State Farm Insurance stating that his decreased level of function was solely related to a motor vehicle accident in 2010.” The report continued: “I explained to him that given his longstanding diagnosis of schizophrenia it was unclear to what degree this accident had affected his cognitive status.”

Clearly the doctors at St. Michael’s had some doubts as to whether the accident was the sole cause of Mr. Khan’s disability, but it appears that they were open to the possibility that there was some link between the accident and the worsening of Mr. Khan’s condition. They simply did not explore whether there was a potential link because the report was not a medical legal report but simply an update report recording Mr. Khan’s interaction with the department of psychiatry at St. Michael’s Hospital.

An insurer may accept a request for a catastrophic determination and make a positive determination, reject the application on the basis of medical evidence or give notice that it requires a further assessment by its own experts prior to making a determination.

In this case, State Farm properly gave notice that it required its own assessments in order to make a determination of catastrophic impairment and it set up a series of assessments, including psychiatric, psychological, neurology, physiatry and occupational therapy assessments.

Since the claim related principally to the deterioration of his mental health subsequent to the accident, Mr. Khan therefore attended an assessment, inter alia, with Dr. Joel Jeffries, a psychiatrist, who was retained by State Farm to examine Mr. Khan.

Dr. Jeffries wrote a report in which he found that Mr. Khan was not catastrophically impaired. Although acknowledging that Mr. Khan was “quite seriously psychotic”, Dr. Jeffries opined that he suffered from a cannabis-induced psychosis and “In actuality he was dysfunctional before the MVA”. Dr. Jeffries went on to observe “Therefore it does not make any sense to use the AMA Guidelines in respect of the motor vehicle accident.”, an approach that Dr. Jeffries confirmed in his testimony at the hearing. Because of Dr. Jeffries’ idiosyncratic approach to the Guides, he gave no impairment rating for Mr. Khan in his assessment.

Relying on the opinions of Dr. Jeffries and the other assessors, who, collectively, assigned Mr. Khan a whole body impairment of only 8, State Farm made the determination that Mr. Khan did not meet the criteria for a designation of catastrophic impairment. In relation to the needed threshold of 55%, the 8% rating was so far off the mark as to be insignificant.

Mr. Khan disagreed with the determination made by State Farm and applied for arbitration.

Because of the critical importance of the rating process by the Insurer’s experts and the ultimate determination by the Insurer, this arbitration may have the appearance of an appeal of State Farm’s determination that Mr. Khan was not catastrophically impaired.

The jurisprudence however is consistent that the arbitration is rather a request for a determination of an issue in dispute, with the Applicant in the matter having the full burden of proof of convincing an arbitrator on the balance of probabilities that he or she meets the criteria for catastrophic impairment as set out in the Schedule whether or not the Insurer approached the determination of catastrophic impairment in the manner outlined in the Schedule and the Guides.

As well, because of the technical nature of the evidence required to prove catastrophic impairment, it is important to keep in mind that it is possible to accept that an insured suffers from significant psychological or physical impairments which have important consequences for his or her life, without necessarily finding that he or she has met the burden of proving that, as claimed here, the level of impairment meets or exceeds the 55% whole person impairment rating as defined in the Guides.

The nature of the Catastrophic Determination process

As noted earlier, Mr. Khan triggered the process of determination of catastrophic impairment by way of a request, signed by Dr. Lo, a designated professional eligible to sign the request. So far so good.

Dr. Lo claimed that Mr. Khan met the criteria for a whole person impairment, that is a combination of physical and mental impairments that together rated greater than 55% on the rating scale. On the face of the request, it made sense since Mr. Khan complained of both physical and psychological symptoms, all of which he attributed to the motor vehicle accident.

State Farm’s response to the request also made sense. Presumably, out of prudence, it was not prepared to accept Dr. Lo’s opinion as to catastrophic impairment without obtaining further expert reports. Its choice of the type of assessors engaged also made sense since Mr. Khan had variously complained of headaches, physical pain, psychological impairment and other symptoms that he viewed as sequelae of the accident.

Consequently, the choice of a neurologist, a physiatrist, a psychiatrist and an occupational therapist to perform the insurer’s assessments which were required to assist the Insurer in making the determination was reasonable.

The use of the word “determination” in describing an insurer’s decision-making process is interesting. The Canadian Oxford Dictionary defines “determination” in this context as follows:

2.a the process of deciding, determining or calculating. b the result of such consideration.3a the conclusion of a dispute by the decision of a judge or an arbitrator. b the authoritative decision so reached

Because the legislation assigns the obligation of making the “determination” to the Insurer rather than, as in the past, to the collective decision of a panel of expert physicians, certain responsibilities devolve on the Insurer in taking that step. As H.E. Sachs, J. noted in Babakar v. Brown ([2010] O.J. No. 414):

The experts in question are not parties being sued because of the opinions that they gave or the assessments that they performed. The party who is being sued is the insurer. The Appellant insurer may have relied on these expert opinions, but it was the insurer's responsibility to make the decision after assessing and critically examining these opinions.

Likewise, an insurer in making a determination cannot ignore credible evidence that is available to it. An insurer has an obligation to assess and critically examine these opinions, and not simply pretend that they do not exist. To repeat, as O’Connor, J. commented in 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd's of London: “In making a decision whether to refuse payment of a claim from its insured, an insurer must assess the merits of the claim in a balanced and reasonable manner.”

Mr. Khan’s record of mental health interventions after the accident speaks for itself. Dr. Lo testified as to significant mental distress following the accident. Even Dr. Jeffries recognized, in a backhanded manner, that Mr. Khan’s mental status at the time was impaired since he noted that “this man is quite seriously psychotic” a state which Dr. Jeffries attributed to marijuana use. Dr. Jeffries, however did not explore whether the “excessive use” of marijuana might be in any way related to the “ relatively minor accident”. It was clear from his testimony that Dr. Jeffries had no truck with the medical use of marijuana even though documents filed by Mr. Khan suggest that he may have had a valid prescription for just that use, however unwise.

Whether impaired by schizophrenia, or marijuana, there appears likely to have been some measurable mental impairment that was not reflected in Dr. Jeffries’ rating. Whether due to his abhorrence of drug use or his belief in the inappropriateness of the Guides to such cases Dr. Jeffries’ failure to assign a percentage for Mr. Khan’s impairment was a major deviation from the process set out in the Guides.

Certainly the provision of what was in effect a zero rating for mental impairment should have at least triggered some questions in the mind of State Farm’s people handling the claim when they read the Jeffries report, since it compromised the assessment process.

When the decision-maker at State Farm ultimately made the determination as to catastrophic impairment, that person had to bear in mind the special relationship between a first-party insurer and its claimant. It has often been said that in general the relationship between an insured and an insurer is one of uberrimae fideis, utmost trust. (702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s of London, 2000 CanLII 5684 (ON CA), [2000] O.J. No. 866)

The duty of good faith also requires an insurer to deal with its insured's claim fairly. The duty to act fairly applies both to the manner in which the insurer investigates and assesses the claim and to the decision whether or not to pay the claim. In making a decision whether to refuse payment of a claim from its insured, an insurer must assess the merits of the claim in a balanced and reasonable manner. It must not deny coverage or delay payment in order to take advantage of the insured's economic vulnerability or to gain bargaining leverage in negotiating a settlement. A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy.

No-one testified from State Farm as to the process of making the determination that Mr. Khan was not catastrophically impaired. Presumably someone in authority reviewed the materials, both those submitted by Mr. Khan and those created by State Farm’s own assessors before applying the statutory test to the facts so assembled. Or maybe not.

If State Farm did in fact review the documentation thoroughly they would have noted that the major factor relied upon by Mr. Khan in support of his claim is the worsening of his psychological condition that he believed arose from the accident.

The reviewer would have noted that the Schedule requires that the assessments take place in accordance with the AMA Guides which form the basis of any consideration of catastrophic impairment. He or she would also note that the primary assessor, Dr. Jeffries, in assessing the psychological impairment specifically rejected the approach taken by the Guides, and consequently accorded a rating of zero impairment to Mr. Khan.

Unless State Farm was asleep at the switch, Dr. Jeffries’ comments on the applicability of the AMA Guides should have set off alarm bells. Whether or not Mr. Khan’s accident-related impairments were obscured by the use of marijuana and a previous history of psychosis, it was both the assessor’s and ultimately State Farm’s responsibility to deal with those issues in the context of the AMA Guides and not to develop a different assessment process just because there were complications present.

It is of some note that the rating process under the Guides and hence the Schedule has been historically flexible enough to accommodate, among other things, a catastrophic impairment where self-destructive drug use was alleged to have been triggered by the effects of a motor vehicle accident (McMichael & Belair FSCO A02-001081, March 2, 2005) and where the level of disability was admitted but causation was challenged due to pre-existing conditions [Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689].

The understanding of causation in both Dr. Jeffries’ report and the St. Michael’s report should also have raised concerns in the mind of anyone vaguely familiar with accident benefit jurisprudence. Causation for those assessors seems to have been tainted with the idea of sole causation, rather than the more nuanced view of significant or multiple causation that is found in the jurisprudence.

The law has long been that a direct cause need not be also the only cause. Indeed, the cause in fact shifts, depending on how the analysis of the facts is framed. This is nowhere more evident than in an examination of “thin skull” cases, such as that dealt with by the Supreme Court in Athey v. Leonati 1996 CanLII 183 (SCC), [1996] S.C.J. No. 102. In examining the application of the thin skull rule, the court, as well, did much to clarify the question of causation in personal injury cases. The court defined the issue before it as follows:

This appeal involves a straightforward application of the thin skull rule. The pre-existing disposition may have aggravated the injuries, but the defendant must take the plaintiff as he finds him. If the defendant's negligence exacerbated the existing condition and caused it to manifest in a disc herniation, then the defendant is a cause of the disc herniation and is fully liable.

It has long been clear that the thin skull rule can apply to a fragile personality or psyche as well as purely physical weaknesses such as a compromised disc. As Lacourcière J.A. wrote in Cotic v. Gray [1981] O.J. No. 3043 C.A:

Because of the so-called "egg-shell" or "thin-skull" principle, the appellant has to take his victim as he finds him, a psychologically vulnerable individual. It must also be assumed that the jury were satisfied, on a preponderance of the evidence, that the accident, while not necessarily the sole cause, was a direct and substantial cause without which the suicide would not likely have happened.

It was surprising that State Farm was not aware of this jurisprudence when it read Dr. Jeffries’ report. Indeed it was unlikely that State Farm ever considered that Dr. Jeffries might have missed the mark in assessing Mr. Khan since it put the same questions to him at the hearing, and seemed satisfied with the same responses.

While it is clear that there were many unanswered questions about the way State Farm handled the catastrophic determination, the Schedule provides little guidance as to what remedial benefits might be available to an applicant in such a case.

While it was once thought that a failure of an insurer to meticulously address the obligations inherent in the determination process could give rise to a positive order for entitlement to the benefits in question, the decision of the Court of Appeal in Stranges (Stranges v. Allstate Insurance Co. of Canada 2010 ONCA 457, 103 O.R. (3d) 73) put paid to any such notion.

As noted earlier, this arbitration is not an appeal or review of the insurer’s catastrophic determination process. Nor is it an enquiry where the adjudicator has a mandate to search out evidence as part of a fact-finding process. An arbitrator can only deal with evidence that is put before him or her by the parties, and forms part of the record of the proceedings. In spite of the time devoted to Dr. Jeffries’ opinion in this hearing and his role in assessing Mr. Khan, this arbitration hearing is a distinct proceeding on the issue of catastrophic impairment and any related entitlement issues in which the primary burden of proof falls to Mr. Khan; not just to discredit State Farm’s position but to introduce sufficient positive evidence of impairment to support a finding of catastrophic impairment. The evidence, if any, relied upon by the Insurer in making its determination forms only a small part of the factual matrix dealt with by the arbitrator.

As such, it is insufficient for an insured to simply file the application for impairment with its supporting report. That simply starts the process. It is clear that he or she must go further and provide a further expert analysis by an expert familiar with the Guides and using the Guides as a template that addresses each element of entitlement in an extended and detailed analysis.

It is to all intents and purposes irrelevant what the Insurer may or may not have done in its assessment process, save and except those elements that concede entitlement or the elements of same.

In Allstate Insurance Company of Canada and T.S. (FSCO P11-00032, September 25, 2014) the Director’s Delegate makes it clear that an applicant’s experts must not only conclude that a person meets the criteria for catastrophic impairment but they must also set out exactly how they translated impairments into the numerical rating under the Guides. Without that arcane expertise, even a noted expert’s opinion in a particular field of medical study will not be highly probative.

A cynic might say that even a brain dead individual cannot be found presumptively catastrophically impaired without the step by step analysis by an expert skilled in the use of the Guides as to why such a conclusion should be reached. Such is the jurisprudence.

It goes without saying that Mr. Khan did not file either a positive supplementary report to speak to the evaluation process or a rebuttal report to address any apparent weaknesses in the Insurer’s determination.

Nor was the testimony of Dr. Lo of much help to Mr. Khan. While Dr. Lo was familiar with the chaos of Mr. Khan’s existence post-accident, Dr. Lo admitted to not being familiar with the analysis set out by the Guides and the jurisprudence. His viewpoint was that of a general practitioner who saw first-hand some of Mr. Khan’s deterioration, not that of an expert in the application and quantification of the criteria in the Guides.

Nor was Mr. Khan assisted by the evident weaknesses in State Farm’s catastrophic determination process, which relied on the opinion of an assessor who did not apply the Guides in his assessment. As Macfarland, J.A. stated in Stranges (supra):

The inadequacy of the refusal notice did not entitle the respondent to payment of benefits in perpetuity until proper notice was given or a proper DAC assessment was carried out. The respondent was still required to prove that she was entitled to the continued payment of IRBs because of her continued substantial inability to perform the essential tasks of her employment.

In Mr. Khan’s case, it is clear that I cannot find for him, in the absence of credible positive expert evidence that reflects the evaluation process in the Guides. The evidence of Dr. Lo, while credible, and indeed convincing as to the troubles endured by Mr. Khan after the accident, is less helpful when it comes to assessing the technicalities of catastrophic impairment.

The clinical notes of Mr. Khan’s hospitalisations again show clear impairment following the accident, and to some degree support Mr. Khan’s position that the crisis of impairment worsened following the accident, but do not address either the Guides rating or the issue of legal causation of the impairments.

While there is at least a coincidence of timing of impairment that suggests that Mr. Khan may have been the proverbially “thin-skull plaintiff”, Mr. Khan did not specifically raise this theory of causation. As well, there is no medical evidence directly examining this issue.

Although I am sensitive to Mr. Khan’s unrepresented status and lack of familiarity with the law, in the absence of positive evidence, I am not prepared to draw the inferences necessary to make a causation finding on the basis of either a thin skull theory or some more direct causation. As a result, for these reasons and those elaborated later in this decision, I would find that Mr. Khan has not met the burden of proving that his impairments arose as a consequence of the accident.

The legislative framework of enhanced benefits under the Schedule is challenging and intimidating, even to professionals. Mr. Khan did well to attempt to bring forward his claim as he did without the assistance of legal professionals. Unfortunately it was not enough.

Consequently, I have no choice but to find that Mr. Khan has not met his evidentiary burden of proving on the balance of probabilities that as a result of the February 4, 2010 he is catastrophically impaired since he has not proven either the whole person impairment in excess of 55% or the potential alternative of a catastrophic psychological impairment as set out in the legislative criteria. Nor has he provided the evidence necessary to prove that his impairments arose as a result of the accident. While the timing of his symptoms may be an important consideration, that coincidence in itself, especially in view of credible evidence of pre-accident impairment is not enough alone to establish causation on any level, without expert evidence pointing to the accident as a trigger for a worsening of his condition.

Housekeeping Claim:

Mr. Khan also claimed an ongoing Housekeeping claim at the rate of $100 per week. According to the Schedule, this benefit serves to compensate an insured for “all reasonable and necessary additional expenses incurred by or on behalf of an insured person…” A precondition of entitlement is that the need for the services arises as a result of the accident and that the accident-related disability constitutes a “substantial inability to the housekeeping and home maintenance services that were performed prior to the accident.

Once again Mr. Khan has the evidentiary burden of demonstrating on the balance of probabilities what was normally done before the accident, what was changed following and because of the accident and what services were reasonably required to address any increase in disability due to the accident.

Mr. Khan testified vividly as to the changes wrought by the accident. Essentially his testimony was that he could do everything prior to the accident, and afterwards he could do nothing. I accept that was Mr. Khan’s appreciation of the situation. Certainly, after the accident it is quite plausible that Mr. Khan had difficulty doing housework, cooking, washing, and planning the purchase of food and necessities. A man whom Dr. Jeffries described as “quite seriously psychotic” would likely have problems attempting and completing many of those of activities.

Unlike Mr. Khan, State Farm does not see any of the disability arising out of the subject motor vehicle accident. Rather it sees Mr. Khan’s life as a train wreck prior to the accident and no better afterwards. State Farm’s view is not without some support in the written record.

While Dr. Lo’s disability certificates post-accident support Mr. Khan’s claim for housekeeping benefits, it is not at all apparent that he reconciled the apparent psychological disability he saw post-accident with the statements and observations recorded prior to February 4, 2010.

Mr. Khan apparently applied for ODSP benefits in the period prior to the accident. In that context he supplied documentation as to his health and disability. Ultimately, the benefit was granted on January 21, 2010 by reason of a successful appeal to the Social Benefits Tribunal.

The tribunal found that Mr. Khan, in that pre-accident period suffered from a substantial impairment due to “longstanding difficulties with depression, primarily.” It also noted “ back shoulder and neck stiffness and pain” that “adds to the cumulative effect of his impairments.”

That is not to say that Mr. Khan’s condition could not have been exacerbated by the accident, or that Mr. Khan could have been a fragile or “thin-skull” accident victim who rapidly decompensated following the accident. The problem is that, other than the general statement by Mr. Khan of getting worse following the accident, Mr. Khan has not filed medical evidence or called expert witnesses to address these specific scenarios. Consequently they remain possibilities that by themselves do not take away from the impression created by the ODSP records and the medical reports related to them that Mr. Khan was already seriously disabled prior to the accident.

While certainly Mr. Khan`s mental illness would have been a significant barrier to the performance of many housekeeping tasks after the accident, it is also likely that it had the same or similar effect prior to the accident.

In any event, I am advised that State Farm has paid the entire non-catastrophic benefit of $10,400 and has not filed any request for repayment. Given my findings with regard to the issue of catastrophic impairment, I am unable to make any further order for Housekeeping benefits, since the non-catastrophic benefits have been exhausted.

Non-Earner Benefit:

A non-earner benefit is one of the more difficult benefits to claim in the accident benefit system. It involves a claimant establishing that he or she suffers from a complete inability to carry on a normal life as a result of a motor vehicle accident.

To establish whether or not the complete inability test is met, one should look at the claimant`s pre-accident and post-accident activities over a considerable time, giving weight to those activities which were most important to the claimant. The post-accident activities examination should include an analysis of whether a claimant is continually prevented from doing pre-accident activities and whether any continued activities were qualitatively different.

It would be hard to argue with Mr. Khans contention that his ability to carry on a normal life is presently substantially impaired; that is, if normal is taken to mean conforming to the standard of the general population, Mr. Khans combativeness with neighbours, landlords and roommates, his expressed fear of water and consequentially bathing, his forgetfulness which limits the ability to safely use stoves, and his paranoia make for a significantly atypical lifestyle when compared to most of his contemporaries. His unfortunate habit of “trashing” his accommodation also points to the challenges of carrying on a “normal” life.

When asked by the insurer`s psychological expert, Dr. Bodenstein, about his daily routine after the accident he is said to have responded “I stay at home. I am scared to go out because someone will get hurt.” If entitlement to a non-earner benefit did not require that the disability be related to the accident and that it arose after the accident, I suspect that no-one would be questioning a finding of complete inability to carry on a normal life.

Mr. Khan also referred to his ability to work sporadically prior to the accident, notwithstanding that his immigration status apparently precluded such endeavours. In any event there is no documentation of these efforts that would enable me to compare his abilities pre-accident and post-accident in that realm.

Notwithstanding Mr. Khan’s assertions of a better life pre-accident, there is more darkness than light as to concrete evidence of greater capabilities in the period immediately prior to the accident.

While Mr. Khan’s perceived inability to pay for medical treatment and his consequent reluctance to voluntarily engage with the medical system may have skewed the availability of documentary evidence by limiting routine treatment and focussing on that arising from involuntary or emergency contact with the mental health system, this series of “snapshots” is the nature of much of the documentary record presented.

The Emergency Crisis Service CAMH records speak of an individual who was already highly dysfunctional as early as September 2009. Mr. Khan was already highly angry and frustrated and paranoid, expressing a desire to kill those whom he thought were persecuting him. The records also noted that he already had ongoing housing issues. The discharge summary for that admission noted “primary psychiatric d/o (schizophrenia) schizoaffective d/o”, “weight loss and immigration and social issues.”

Following the accident on June 23, 2014, the Mental Health Clinic (St. Michael’s Hospital) wrote a report to Dr. Lo updating Mr. Khan’s status. Dr. Ilan Shawn (the writer) observed that the clinic had been seeing Mr. Khan since April 2014 and that the clinical impression was that he suffered from schizoaffective disorder rather than schizophrenia. Dr. Shawn noted that:

He feels more frustrated and angry, though he says that he is very grateful that the medication helps him keep the anger inside He says he is able to walk past people on the street who previously would have angered him and he previously would have been outwardly expressive with his anger, whereas now he can keep it contained.

While these notations are admittedly snap shots reflecting short periods in Mr. Khan’s troubled life, there is still a remarkable consistency between the impression made in September 2009 and June 2014, notwithstanding the intervention of the accident.

The Disability Certificate dated February 8, 2010, issued by Dr. Roy Priesnitz, a chiropractor, immediately following the accident, does not even list psychological issues under the heading “Injury and Sequelae Information” but rather lists it in the context of potential follow-up examinations.

Dr. Lo’s brief report of April 16, 2015 which forms part of the Application for Determination of Catastrophic Impairment does not particularize how Mr. Khan’s disability changed from before the accident. Rather he lists symptoms of schizophrenia, hallucinations, paranoia and disorganization, all of which were remarked by various medical practitioners prior to the accident. Whether or not it accurately reflects Mr. Khan’s reality, his medical record, on the balance supports State Farm’s contention that Mr. Khan suffered a continuum of disability, both before and after the accident, with no credible evidence of a direct causative relation to the subject motor vehicle accident.

While I accept that Mr. Khan’s medical conditions likely rendered him unable to carry on most aspects of a normal life, I find that he has not met the burden of proving that his post-accident disabilities arose from the accident or were precipitated by a worsening of his condition following the accident.

Conclusion:

It has long been established that the accident benefit scheme or "no fault" has a social policy aspect that goes beyond the parties to the insurance policy.

The Statutory Accident Benefits Schedule, which underpins the "no fault" system of insurance compensation in Ontario, is aimed at providing prompt and timely financial assistance to those in need after an accident. It is intended to deal with those items enumerated under the Schedule, including income replacement benefits, medical expenses, and attendant care expenses.

The Courts have identified a common theme in approaching the statutory accident benefits scheme -- that it is meant to address the challenges of an injured insured person in a timely and interim basis -- to address the immediate sequelae of an accident and assist the victim to obtain redress without concern for either fault or causation. As Matlow, J. noted in Belair Insurance Co. v. McMichael [2007 CanLII 17630 (ON SCDC), 86 O.R. (3d) 68], citing Kennelly and Wawanesa Mutual Insurance Company (FSCO A99-000139, January 21, 2000), “the statutory goal of prompt and timely payment for necessary medical services.”

While Mr. Khan has not been successful in advancing his most recent claims, to a large degree Lane J.’s enunciated statutory goals have been substantially achieved in Mr. Khan’s case. He made a claim following an accident and received benefits to cover housekeeping and other benefits including payments of non-earner benefits during the considerable time that State Farm was looking into his claim.

Ultimately, State Farm, after a battery of examinations, determined that Mr. Khan’s disabilities did not seem to arise because of the motor vehicle accident and ceased payment of benefits. However prior to that determination, even in the face of doubt, they made payments to Mr. Khan.

While State Farm may have erred in elements of the catastrophic impairment determination process, they appear to have proceeded to ensure that Mr. Khan indeed received prompt payment for necessary services in the period immediately following the accident.

I would like to emphasise that this finding that Mr. Khan has not met the statutory test for entitlement to particular benefits does not diminish my recognition of the level of impairment and challenges he is said to endure. Rather it suggests that the no-fault accident benefits system is a poor fit for someone with Mr. Khan’s unique challenges and situation.

By contrast to the Statutory Accident Benefits Schedule and motor vehicle insurance, other, targeted social programmes, such as ODSP are specifically intended to “encompass a broader segment of society and to provide assistance to persons with significant but not severe long –term functional barriers.” Gray v. Director of the Ontario Disability Support Program (2002), 59 O.R. (3d.) 364 ( C.A.).

While the accident benefit system and State Farm were able to address some of Mr. Khan’s most immediate needs following the accident in the longer term, Mr. Khan would be well advised to continue searching for the assistance that he clearly needs from those other parts of Ontario’s social safety net which do not require a direct link to a motor vehicle accident as a pre-condition to ongoing benefits.

EXPENSES:

Although, in general costs follow the cause at both FSCO and the courts, and State Farm was successful on all the substantive issues, Regulation 664 ( the Expense Regulation) also provides for other considerations including the conduct of either party that may have prolonged or delayed the proceedings, among other considerations.

If the parties are unable to agree on the issue of expenses any party claiming an award of expenses must serve and file a costs summary together with a brief memorandum as to entitlement (not to exceed three pages) within thirty days of the issuance of this decision. Otherwise each will bear his or her own costs.

May 6, 2016

John Wilson Arbitrator

Date

Financial Services Commission of Ontario