Bhupinder Singh Grewal v. AIG Commercial Insurance Company of Canada, 2016 ONFSCDRS 322

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 322 Appeal: P16-00030 Office of the Director of Arbitrations

Bhupinder Singh Grewal, Appellant and AIG Commercial Insurance Company of Canada, Respondent

Before: Delegate Jeffrey Rogers

Representatives: Mr. Frank Burns, solicitor for Mr. Grewal Mr. Claude Blouin, solicitor for AIG

Hearing Date: October 28, 2016

VARIATION/REVOCATION ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Mr. Grewal’s application for Variation or Revocation is dismissed.
2. If the parties are unable to agree on the issue, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 29, 2016

Jeffrey Rogers Director’s Delegate

REASONS FOR DECISION

I. NATURE OF THE APPLICATION

Mr. Grewal applies to vary or revoke Arbitrator Feldman’s (the Arbitrator) decision regarding his entitlement to income replacement benefits (IRBs), attendant care benefits (ACBs) and housekeeping benefits (HK)¹, as well the Arbitrator’s expense decision and the expense decision Director’s Delegate Blackman made following dismissal of Mr. Grewal’s appeal of the Arbitrator’s decision.

Mr. Grewal’s application is based upon evidence that he says was not reasonably available at the arbitration (“new evidence”) which would have had an important influence on the outcome. For the reasons that follow, I am not satisfied that the evidence that Mr. Grewal seeks to rely on is “new”. I am also not satisfied that the proposed “new evidence” would likely have led to a different outcome. The application is therefore dismissed.

II. BACKGROUND

Mr. Grewal was injured in a motor vehicle accident on January 18, 2009. He applied for and received statutory accident benefits from AIG. Disputes arose regarding his entitlement to various further benefits and, when mediation failed to resolve the disputes, he applied for arbitration. In a decision dated August 7, 2014, the Arbitrator dismissed most of Mr. Grewal’s claims, including his claim for further IRBs, ACBs, HK and a special award. The Arbitrator later awarded AIG its expenses of the arbitration, based upon its success.

Mr. Grewal appealed the Arbitrator’s decision. The appeal was limited to the Arbitrator’s denials of further IRBs and payment for proposed treatment in the United States. By order dated November 17, 2015, Director’s Delegate Blackman dismissed the appeal. The Director’s Delegate later awarded AIG its expenses of the appeal, based upon its success.

III. ANALYSIS

This application for variation/revocation is brought under s. 284 of the Insurance Act. As set out in Rule 61 of the Dispute Resolution Practice Code (Fourth Edition), relief is available under this section where it is proven that:

1. There has been a material change in the circumstances of the insured;
2. Evidence not available on the arbitration or appeal has become available; or
3. There is an error in the order.

In his Application for Variation/Revocation and in his written submissions, Mr. Grewal indicated that he relies on the second element of the Rule, namely: “evidence not available on the arbitration or appeal has become available”. He submitted at the hearing that he also relies on the first element of the Rule, since there has also been a material change in his circumstances. However, no evidence supports that submission so I need not address it further.

Director Draper summarized the scope of the “new evidence” ground in Lanctot and Zurich Insurance Company, as follows:

the party seeking variation still has to show that the evidence could not have been obtained for the original hearing by due diligence and that, if it had been available, likely would have had an important influence on the outcome.

The Director endorsed the earlier statement by Director’s Delegate Naylor that:

“[t]he legislation places limits on when an order may be reviewed in the interests of ensuring that, in an adversarial process, the parties prepare adequately for the hearing and to secure a finite end to the adjudication process.” ²

Lanctot shows that the “new evidence” criterion does not provide parties with an opportunity to simply remedy the deficiencies that an Arbitrator has found in rejecting their positions. The analysis must include the evidence before the Arbitrator and the findings that were made. Further, where a party is able to demonstrate that there is evidence that may properly be called “new”, the evidence must be relevant and it must also be shown that the “new evidence” would have likely led to a different result.

Mr. Grewal argues that the “new evidence” would have led to a different result regarding his entitlement to IRBs, ACBs and HK and that his success on those issues would have negated the expense orders made against him. He also claims entitlement to a special award on the grounds that AIG’s continuing refusal to concede his entitlement is unreasonable, in light of the “new evidence”.

No “new evidence”

I am not satisfied that the evidence that Mr. Grewal proposes to rely on is “new”. As noted above, in order to satisfy the “new evidence” criterion, it must be shown that the evidence that has become available could not have been obtained for the original hearing by due diligence. Mr. Grewal seeks to rely on the following “new evidence”:

• Report by Dr. Stephen Connell, psychiatrist, dated January 7, 2015
• Report by Dr. Kerry Lawson, Neuropsychologist, dated March 9, 2015 (commissioned by AIG)
• Report by Dr. Kilian Walsh, Psychiatrist, dated March 23, 2015 (commissioned by AIG), and
• Further report by Dr. Connell, dated April 7, 2015.

Mr. Grewal argues that these reports now prove that he sustained a traumatic brain injury as a result of the accident and identify cognitive deficits arising from his brain injury which show that he is entitled to IRBs, ACBs and HK.

However, questions as to the effect of Mr. Grewal’s cognitive impairments on his ability to function are not new. They were central to the arbitration hearing. Mr. Grewal was driving a truck at the time of the accident of January 2009. He struck his head on the driver’s side window and lost consciousness. By May 2009, AIG had conceded that Mr. Grewal sustained a catastrophic impairment as a result of the accident because of a brain impairment resulting in a score of 9 or less on the Glasgow Coma Scale. By the time of the arbitration hearing in 2013, Mr. Grewal’s principal ongoing impairments were not physical, but psychological and cognitive.

The Arbitrator summarized Mr. Grewal’s status as follows:

In general terms, the Applicant recovered reasonably well from his physical injuries, although he continues to complain of some chronic pain (especially headaches) and other symptoms. His more significant ongoing impairments, however, appear to be psychological and cognitive³.

At the arbitration hearing, Mr. Grewal argued that he was entitled to caregiving benefits and IRBs because of his cognitive impairments. He presented expert evidence to support that argument. The Arbitrator concluded otherwise. Mr. Grewal submits that the “new evidence” is based upon valid psychological testing, while the evidence before the Arbitrator showed that he had failed the validity tests. The problem with that position is that there was expert evidence based upon valid psychological testing which Mr. Grewal sought to admit at the hearing. Mr. Grewal sought to introduce the report of neuropsychologist Dr. Gerry Young. The Arbitrator refused to admit it because it was served too late and there were no extraordinary circumstances to explain the late service. Mr. Grewal appealed that decision.

In dismissing the appeal, Delegate Blackman addressed the question of whether an opinion based upon valid psychological testing could have been procured prior to the arbitration hearing.

Delegate Blackman stated:

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

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

The Appellant had two and a half years from the pre-hearing to prepare for the hearing. The Respondent approved Dr. Young’s new neuropsychological assessment eleven months before the arbitration hearing. There is no evidence of extraordinary circumstances, as required, allowing late service. I am not persuaded the Arbitrator erred in law in exercising his discretion under Rule 39.2 of the Code not to set aside the Rule 39.1 30-day rule regarding Dr. Young’s report⁴.

I concur with Delegate Blackman’s assessment. I am not satisfied that the evidence that Mr. Grewal seeks to rely on in this application could not have been obtained prior to the arbitration hearing, with due diligence. In my view, Mr. Grewal’s submission that this evidence is “new” must be seen as a collateral attack on the Arbitrator’s decision not to admit Dr. Young’s report.

No Different Result

As I said earlier, I am also not satisfied that the “new evidence” would likely have led to a different result. First, I will address the issue of credibility which had a critical impact on the Arbitrator’s decision regarding all benefits. I will then address problems specific to the claimed benefits which the “new evidence” does not remedy. Having concluded that the evidence does not lead to a different result, I find it unnecessary to decide whether AIG was required to concede Mr. Grewal’s entitlement because Dr. Lawson’s and Dr. Walsh’s reports were commissioned by AIG and not by him.

Mr. Grewal testified before the Arbitrator. The issue of his credibility was central to AIG’s decision to terminate benefits and it was at the core of the Arbitrator’s decision. The Arbitrator stated:

While, initially, the Insurer appeared willing to accept the Applicant’s claims at face value, around the summer of 2009 serious questions began to arise concerning the Applicant’s credibility. To many of the Insurer’s assessors, there appeared to be significant discrepancies between the Applicant’s reported and demonstrated level of function during formal testing and his level of functional ability as captured in surveillance videos. The Applicant also failed numerous tests for validity administered by a neuropsychologist (Dr. Trepanier); he failed to such an extent that Dr. Trepanier concluded that the Applicant was likely deliberately trying to make himself appear more impaired than he was. These suspicions were later exacerbated by evidence of inconsistencies in what the Applicant was telling different assessors and by his failure to disclose crucial information to the Insurer.

During this proceeding, the Applicant did not adequately address these concerns about his credibility. His case was significantly weakened by his failure to explain these inconsistencies and his failure to produce important documents (especially those concerning post-accident employment and income). The Applicant’s case was further weakened by his failure to produce witnesses at the hearing such as members of his household who could describe and compare the Applicant’s level of function and usual activities (such as housekeeping and caregiving activities) both before and after the accident and who could provide particulars of any services they (or others) may have provided to the Applicant⁵.

The credibility problems that Arbitrator identified were:

• Discrepancies between Mr. Grewal’s reported and demonstrated levels of functioning, based on surveillance
• Failing numerous validity tests
• Inconsistences in reports to various assessors
• Failure to produce important documents, and
• Failure to produce witnesses who could compare his pre-accident and post-accident function

The Arbitrator’s finding that Mr. Grewal was not credible is not explained by the “new evidence”. There is no explanation for failing numerous validity tests, then being successful on the ones administered by Dr. Young and subsequent assessors. There is no explanation for Mr. Grewal’s failure to produce important documents. There is no explanation for Mr. Grewal’s failure to produce witnesses.

I give no weight to Arbitrator Tanaka’s ruling regarding Mr. Grewal’s evidence, made in the arbitration between the parties which took place after the appeal before Delegate Blackman. At issue before Arbitrator Tanaka was Mr. Grewal’s entitlement to treatment which Arbitrator Feldman had denied, with the proviso that Mr. Grewal could submit a new treatment plan after obtaining valid neuropsychological test results. Mr. Grewal did not testify before Arbitrator Tanaka, and AIG submitted that an adverse inference should be drawn from his failure to do so. Arbitrator Tanaka refused to draw an adverse inference upon concluding that Mr. Grewal “is limited by his impaired executive function from understanding fully the implications, outcomes and nuances of what he is asked.⁶”

Arbitrator Tanaka was entitled to this conclusion, but she did so in different circumstances from Arbitrator Feldman. Since Mr. Grewal did not testify before Arbitrator Tanaka, the issue of inconsistencies in his evidence did not directly arise. Arbitrator Tanaka did not have the benefit of observing Mr. Grewal’s demeanor, as Arbitrator Feldman did. Arbitrator Tanaka did not review the extensive video surveillance which was presented before Arbitrator Feldman. Further, there was no issue before Arbitrator Tanaka regarding Mr. Grewal’s failure to produce important documents and his failure to call witnesses, as Arbitrator Feldman noted.

Mr. Grewal chose to testify before Arbitrator Feldman. He could have chosen not to do so. Mr. Grewal cannot now undo that decision. I reject Mr. Grewal’s submission that the “new evidence” put him in a better position to make the decision on whether to testify. Questions regarding his credibility were not new. He had ample time to consider the issue and address it. However, as Arbitrator Feldman noted, he “did not adequately address these concerns about his credibility.⁷” With the benefit of Arbitrator Feldman’s analysis, Mr. Grewal appears to have then made a different tactical decision in the arbitration before Arbitrator Tanaka. I am not satisfied that Arbitrator Feldman would have arrived at a different conclusion regarding his credibility, even if the “new evidence” were available to him.

I will now review the Arbitrator’s finding regarding each of the relevant benefits.

IRBs

For the first 104 weeks after the accident, Mr. Grewal was entitled to an IRB if his accident- related impairments caused a substantial inability to engage in the essential tasks of his pre-accident employment as a truck driver. The Arbitrator found it unnecessary to decide whether Mr. Grewal met this disability test because he was not satisfied that Mr. Grewal had proven any loss of income. This finding was based upon evidence that Mr. Grewal worked extensively as a truck driver in the years after the accident and he did not present evidence proving that his post-accident income was less than his pre-accident income.

The Arbitrator noted that:

The Applicant has admitted to working extensively after the accident of January 2009 but has provided virtually no documentation to verify the details of his post-accident employment and income

He admitted that, at some point in 2009 he began to drive his truck again (this time for Pro-X Logistics) and this continued until 2012. He testified that he worked about 8 hours per day, three or four days per week and earned about $2,000 to $2,500 per month.⁸

There is nothing in the “new evidence” that could lead to a different result regarding Mr. Grewal’s failure to prove a loss of income. Therefore, the “new evidence” cannot lead to a different result regarding IRBs for the first 104 weeks after the accident.

The disability test for IRBs changes at the 104 week mark. To be entitled to an IRB after that, Mr. Grewal had to prove that he was completely unable to engage in any occupation for which he was reasonably suited by education, training or experience. The Arbitrator ruled that Mr. Grewal did not prove that he sustained a loss of income for this period as well. In addition, the Arbitrator ruled that Mr. Grewal did not prove that he met the stricter disability test.

As with the pre-104 period, nothing in the “new evidence” could lead to a different result regarding Mr. Grewal’s failure to prove a loss of income. Therefore, the Arbitrator would have dismissed Mr. Grewal’s IRB claim, regardless of the impact of the “new evidence” regarding his impairments.

Mr. Grewal submits that his cognitive impairments prevented him from gathering the evidence to prove a loss of income. There is no evidence supporting that submission. Further, Delegate Blackman rejected the same submission at the appeal, ruling that Mr. Grewal had ample opportunity to prove a loss of income and that the Arbitrator did not err in concluding that he did not. Mr. Grewal cannot attack that ruling in this application.

Before me, Mr. Grewal appeared to concede this issue. He advised that his claim for IRBs is now limited to the period after the Arbitrator’s decision. He submitted that a separate hearing should be scheduled to address quantum. There are two problems with that submission. First, this application is not a two-step process. If there is now evidence regarding Mr. Grewal’s loss of income, he should have presented it. Second, the “new evidence” criterion requires a finding that the evidence would have led to a different result. Mr. Grewal’s subsequent loss of income could not have influenced the Arbitrator’s decision. That evidence would only be important if there were also evidence of deterioration in Mr. Grewal’s condition. As I noted earlier, no such evidence has been presented.

Turning to the Arbitrator’s findings regarding the post-104 disability test, the Arbitrator did take into account Mr. Grewal’s position that his cognitive and emotional impairments prevented him from engaging in employment. There was evidence to that effect before the Arbitrator who nevertheless found that Mr. Grewal did not meet the test. The Arbitrator stated:

The Applicant’s position is that he is still nervous when driving, especially on the highway, and that his cognitive and emotional impairments make it difficult for him to drive a truck for extended periods and long distances as he did prior to the accident of January 18, 2009. Nevertheless, the test for income replacement benefits after 104 weeks of disability is more stringent and is not necessarily tied to the work the Applicant was doing at the time of the accident.

The Applicant possesses education, training and experience in: agriculture; working with machinery; driving smaller as well as larger vehicles and making deliveries within the Greater Toronto Area; and factory work (including supervising others and doing quality control). Despite some lingering impairments, I find that the Applicant has demonstrated sufficient functional ability, motivation and endurance to work at a job that would pay at least as much as his reported pre-accident income. The Applicant has failed to prove that he has suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.⁹

There was ample evidence before the Arbitrator supporting this disability ruling, including the opinion of Mr. Grewal’s own assessors, extensive surveillance, and evidence that Mr. Grewal had in fact worked extensively as a truck driver after the accident. There was no evidence that he had in fact encountered significant difficulty in engaging in that activity. On appeal, Delegate Blackman rejected Mr. Grewal’s challenge of the Arbitrator’s findings in this regard.

None of the reports tendered as “new evidence” directly addresses the question of entitlement to IRBs. They focus on diagnosis and the question of whether Mr. Grewal is entitled to payment for multidisciplinary treatment in Tucson, Arizona. None of the reports assesses Mr. Grewal’s vocational aptitude. None of the reports address the question of whether Mr. Grewal can engage in any employment for which he is reasonably suited by education, training or experience.

Entitlement to IRBs is a question of function, not diagnosis. A person diagnosed with psychological disorders and cognitive impairments could nevertheless be functionally employable. The Arbitrator focused on Mr. Grewal’s proven functional abilities in determining that he did not meet the disability test. The Arbitrator’s decision shows that he was aware that the issue was one of function. Although the Arbitrator reserved the decision on whether Mr. Grewal was entitled to treatment in Arizona, pending valid neuropsychological test results, there was no similar reservation with regard to entitlement to IRBs, ACBs or HK. I am not satisfied that the “new evidence” likely would have led to a different conclusion.

Housekeeping

The Arbitrator found that Mr. Grewal’s pre-accident housekeeping responsibilities were very limited and dismissed the claim because he was not satisfied that Mr. Grewal’s impairments prevented him from engaging in them. The Arbitrator stated:

The preponderance of the evidence suggests that the housekeeping and home maintenance services that the Applicant normally performed before the accident were extremely limited. His wife and mother-in-law were the household members who were primarily responsible for housekeeping prior to the accident. The Applicant’s usual responsibilities involved such things as cutting the grass, shovelling the snow and occasionally vacuuming, doing occasional repairs or otherwise helping his wife or mother-in-law if and when he was home and able.

Surveillance evidence (including video recordings from May 2009, August 2010 and January 2011), however, clearly show the Applicant engaged in numerous, demanding physical activities, without any apparent difficulties or limitations. These activities include shovelling snow, attaching a tractor trailer to a cab, lifting his child with both arms and carrying him for a prolonged period in one arm and running after a runaway shopping cart. Having watched all of the surveillance evidence, I have no difficulty in concluding that, at all relevant times, the Applicant was capable of vacuuming, cutting the grass, taking out the trash or shovelling snow¹⁰.

There is nothing in the “new evidence” to suggest that Mr. Grewal’s cognitive impairments prevent him from engaging in the “extremely limited” housekeeping and home maintenance activities that he performed before the accident. I am not satisfied that this evidence would have led to a different result.

Attendant Care

After the accident, AIG paid Mr. Grewal attendant care benefits until June 2009. Payment was terminated, based upon medical evidence and surveillance indicating that Mr. Grewal did not require the level of assistance that he claimed. AIG asked him to submit details of any services he continued to receive. The Arbitrator found that those details were never provided. The Arbitrator dismissed Mr. Grewal’s claim for further payment upon ruling that he “simply failed to prove, on a balance of probabilities, the exact nature and extent of any attendant care services he reasonably required beyond what has already been provided for by the Insurer.¹¹”

The evidence before the Arbitrator included the opinion of Dr. Connell, one of the experts whose opinion Mr. Grewal tenders as “new evidence”. The Arbitrator stated: “In August 2011, one of the Applicant’s staunchest supporters, Dr. Connell, concluded that “there is no immediate need to provide attendant care...¹²” Although Dr. Connell now states that “Mr. Grewal’s major neurocognitive disorder results in difficulty in independent living and self-care¹³”, there is nothing in the opinion to show that Mr. Grewal actually requires assistance with self-care.

In Dr. Lawson’s report of March 9, 2015, also tendered as “new evidence”, Dr. Lawson indicates that Mr. Grewal “said that he is able to plan and organize his life activities independently¹⁴”. In Dr. Walsh’s report of March 23, 2015, also tendered as “new evidence”, Dr. Walsh indicates that Mr. Grewal “said that he continued to handle his own personal care.¹⁵”

I find nothing in the “new evidence” that would have led the Arbitrator to a different conclusion regarding Mr. Grewal’s need for attendant care.

Special Award

Mr. Grewal claimed a special award in the arbitration. The Arbitrator denied his claim. In this application, Mr. Grewal does not seek to vary or revoke that denial. He makes a new claim based on AIG’s refusal to concede his entitlement to benefits in light of the “new evidence”. I doubt that there is jurisdiction to make a special award in these circumstances. However, in view of the result in this application, the question is moot.

CONCLUSION:

Since Mr. Grewal failed to prove that the “new evidence” would have led to a different result regarding his entitlement to IRBs, ACBs, HK and a special award, he cannot succeed in varying the expense awards made against him. Therefore this application must be dismissed. I have made an order accordingly.

IV. EXPENSES

The parties made no submissions regarding expenses of this application. If the parties are unable to agree on the issue, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 29, 2016

Jeffrey Rogers Director’s Delegate

Footnotes

1. 1The Application for Variation/Revocation also claimed variation of the Arbitrator’s dismissal or Mr. Grewal’s claims for medical benefits, but he did not pursue that claim at the hearing.
2. 2(FSCO P02-00033, October 30, 2003), at page 7
3. 3Arbitrator’s decision, August 7, 2014, Page 6
4. 4Delegate Blackman’s decision, August 13, 2015, at Pages 4-5, 6
5. 5Arbitrator’s decision, August 7, 2014, at page 6
6. 6(FSCO A14-0003045, February 16, 2016), at page 17
7. 7At page 6
8. 8At page 13
9. 9At pages 16-17
10. 10Arbitrator’s decision, Pages 18-19
11. 11At page 25
12. 12At page 22
13. 13Report dated April 7, 2015, at page 9
14. 14At page 8
15. 15At page 6